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None
of
these
Cases
ever
Printed
before
.
Indignor quicquam reprehendi , non quia crassè Compositum , illepidéve putetur , sed quia nuper . Hor. Epist. 2.1 .
Carefully
Collected
by
a
Learned
Hand
.
Edw.
Atkins
Charles
Harper
Flower
de
Luce
Mr
:
Ambrose
Holbech
of
Mollington.
in
the
County
of
Warwick
,
1702
the
Conqueror
approbatas
&
antiquas
Leges
Angliae
an
Englishman
Authority
of
Parliament
John
Breton
King's
Bench
The
Mirror
of
Justice
Andrew
Horn
Ralph
Hengham
Common
Pleas
Henry
the
Second
Henry
the
Third
Henry
the
Sixth
a
System
of
Law
Systems
of
Law
.
Edward
the
Fourth
Burrough
English
Common
Recovery
de
Donis
in
Custodia
Marescalli
John
Doe
Richard
Roe
de
Prosequendo
English
Saxons
Chirographer
,
Protonotary
Pagan
Saxons
English
Saxon
Willielmi
&
Mariae
d.
per
s.
per
Inns
of
Court
in
Hospitiis
illis
Leges
addiscebant
viz.
That
their
Goods
be
confiscate
,
their
Lands
and
Possessions
seised
into
the
King's
Hands
,
their
Houses
demolished
,
their
Woods
felled
,
and
their
Meadows
plowed
:
qui
multa
majora
habent
Patrimonia
Henry
the
Eighth
Henry
the
Eighth
Thomas
Moor
AN
Action
of
was
formerly
brought
for
taking
of
Goods
,
and
upon
Not-guilty
pleaded
the
Defendant
had
a
Verdict
The
same
Plaintiff
now
brought
against
the
same
Defendant
for
those
Goods
.
The
Defendant
pleads
in
Barr
the
Iudgment
in
the
former
Action
of
Trespass
,
and
upon
a
Demurrer
,
the
Question
was
Whether
a
Iudgment
in
Trespass
may
be
pleaded
in
Bar
to
an
Action
of
for
the
same
Goods
This
Case
was
argued
by
Mr.
for
the
Plaintiff
;
and
by
Mr.
for
the
Defendant
And
to
prove
that
it
was
no
Bar
,
a
Case
was
cited
to
be
adjudged
in
the
in
the
year
of
King
which
was
an
Action
of
of
one
hundred
Sheep
:
The
Defendant
pleaded
a
former
Iudgment
in
Trespass
brought
against
him
,
those
Sheep
,
and
that
the
Plaintiff
in
that
Action
recovered
damages
,
and
that
both
Actions
were
for
the
same
thing
.
The
Plaintiff
replied
,
that
the
two
pence
damages
were
recoverd
for
the
chasing
,
and
not
for
the
value
of
the
Cattle
;
and
upon
a
Demurrer
had
Iudgment
:
For
the
smalness
of
the
damages
implies
it
was
for
the
chasing
,
and
it
shall
therefore
be
intended
that
he
had
his
Cattle
again
,
and
that
the
Conversion
was
afterwards
.
My
Lord
tells
us
's
Case
that
a
Recovery
by
Verdict
,
Confession
,
or
upon
a
Demurrer
in
a
personal
Action
is
a
good
Bar
to
an
Action
of
the
like
nature
,
and
for
the
same
thing
;
but
that
must
be
understood
where
the
same
Evidence
will
maintain
both
the
Actions
.
reports
the
same
Case
to
be
ended
by
Arbitration
;
but
that
it
was
the
Opinion
of
my
Lord
and
Iustice
are
Actions
of
different
natures
,
and
one
may
be
brought
where
the
other
cannot
be
maintained
;
as
upon
a
demand
and
denial
will
lie
,
but
not
because
the
taking
was
not
tortious
.
And
therefore
it
may
be
well
intended
that
when
the
Plaintiff
brought
he
was
mistaken
in
that
Action
,
and
being
in
the
wrong
,
was
barred
;
but
that
will
be
no
Bar
where
a
right
Action
is
brought
;
as
if
I
deliver
a
Bond
to
another
for
advice
,
who
refusing
to
redeliver
it
,
I
bring
an
Action
of
and
am
barred
either
by
Verdict
or
Demurrer
,
yet
I
may
bring
are
not
the
same
Actions
and
therefore
a
Iudgment
in
one
shall
be
no
bar
to
the
other
;
but
where
two
Actions
are
brought
for
one
thing
to
be
recovered
,
in
such
case
a
Recovery
in
one
shall
be
a
bar
to
the
other
.
There
is
no
substantial
difference
between
for
the
disposing
of
the
Goods
in
the
one
case
is
the
same
with
the
in
the
other
;
the
taking
and
likewise
the
are
both
tortious
,
and
therefore
either
Action
may
be
well
brought
.
But
for
the
Reasons
given
by
the
Plaintiffs
Council
,
he
had
Iudgment
by
the
Opinion
of
the
Chief
Iustice
and
the
other
two
Iudges
,
of
which
Iustice
did
very
much
doubt
AN
Indictment
was
found
at
the
Quarter
Sessions
held
for
the
County
of
the
City
of
against
Sir
Knight
of
the
and
Recorder
and
Senior
Alderman
of
the
said
City
,
Sir
Alderman
and
Alderman
,
setting
forth
That
King
by
his
Charter
dated
granted
to
the
Mayor
and
Commonalty
of
the
Town
of
the
now
City
of
being
then
a
Town
and
to
their
Successors
,
That
if
any
shall
procure
,
abett
or
maintain
any
Debate
and
Discord
upon
the
Election
of
the
Mayor
,
or
other
Minister
,
he
shall
be
punished
instantly
by
the
Mayor
and
two
Aldermen
,
to
be
chosen
and
named
by
the
Mayor
,
after
the
quantity
and
quality
of
his
offence
according
to
the
Laws
and
Custom
of
the
Realm
.
That
according
to
the
Priviledges
granted
by
Queen
to
the
Mayor
and
Commonalty
of
the
said
City
,
and
their
Successors
,
by
Charter
dated
of
her
Reign
:
After
which
time
(
as
the
Indictment
sets
forth
)
the
said
Town
was
made
a
City
)
there
have
been
,
or
ought
to
have
been
,
from
the
time
of
the
making
the
said
Charter
,
twelve
Aldermen
,
whereof
the
Recorder
was
to
be
,
and
now
is
,
one
.
That
according
to
the
Priviledges
,
so
as
aforesaid
granted
,
by
all
the
time
aforesaid
(
which
is
from
the
time
of
the
Charter
)
after
the
death
of
every
Alderman
,
the
Mayor
and
the
rest
of
the
surviving
Aldermen
,
of
the
said
Mayor
,
being
called
together
,
have
to
choose
another
person
of
the
circumspect
Citizens
to
be
an
Alderman
in
the
place
of
him
so
deceased
;
and
the
Mayor
and
Aldermen
(
by
the
same
Privileges
so
granted
)
have
been
,
and
ought
to
be
,
Iustices
of
the
Peace
for
the
said
City
.
That
continually
Elizabeth
,
the
Recorder
,
and
the
rest
of
the
Aldermen
,
were
and
ought
to
be
of
the
Mayor
in
particular
Cases
concerning
the
Government
of
the
City
,
whensoever
the
Mayor
shall
call
them
together
.
And
such
Privy
Council
which
still
is
from
the
said
Charter
of
Queen
to
transact
any
Business
belonging
to
that
Council
,
That
after
the
death
of
one
Sir
being
at
his
death
an
Alderman
of
the
said
City
,
the
said
Sir
then
being
Recorder
,
Sir
Esquire
,
and
being
all
Aldermen
then
of
the
City
,
and
free
Burgesses
of
the
City
,
and
discord
upon
the
Election
of
an
Alderman
in
the
place
of
the
Alderman
so
dead
,
in
the
Parish
and
Ward
of
St.
within
the
said
City
of
the
Aldermen
of
the
said
City
,
and
therein
then
being
Mayor
of
the
City
.
And
in
pursuance
of
their
said
wicked
Conspiracy
,
the
day
and
year
aforesaid
,
and
in
the
Chamber
of
the
Council
of
the
Mayor
and
Commonalty
of
the
said
City
,
commonly
called
and
the
same
day
and
year
they
the
said
four
Aldermen
(
which
must
be
two
more
Aldermen
at
the
least
,
which
makes
six
,
(
and
there
were
but
five
more
in
all
then
in
being
taking
the
Mayor
in
)
the
said
rest
of
the
Aldermen
,
not
knowing
their
purposes
,
held
a
Privy
Council
of
Aldermen
,
and
then
and
there
as
much
as
in
them
lay
,
chose
for
an
Alderman
in
the
place
of
Sir
then
Mayor
,
to
meet
,
and
in
his
absence
,
and
against
his
Will
.
And
they
farther
caused
to
be
the
said
Election
,
as
an
Order
of
the
Privy
Council
;
in
which
Book
the
Acts
of
the
Mayor
and
Aldermen
in
their
Privy
Council
are
commonly
written
;
from
whence
great
Discord
hath
risen
,
Which
Indictment
was
tryed
at
the
Assises
at
and
the
Defendants
found
guilty
;
and
thereupon
Sir
one
of
the
Defendants
came
into
the
Court
of
and
in
Arrest
of
Iudgment
argued
his
own
Case
,
not
as
Council
,
nor
at
the
Bar
,
but
in
the
Court
in
his
Cloak
,
having
a
Chair
set
for
him
by
the
Order
of
the
Lord
Chief
Iustice
,
and
said
as
followeth
The
Indictment
in
the
first
place
mentions
the
Letters
Patents
of
King
made
to
the
Mayor
and
Commonalty
of
that
the
Mayor
with
two
Aldermen
(
such
as
he
should
choose
)
should
by
their
discretions
,
according
to
Law
,
punish
such
as
should
make
debate
and
discord
at
the
Elections
of
Officers
.
They
have
not
pursued
this
course
against
us
,
but
gone
the
ordinary
way
of
Indictment
,
and
therefore
I
shall
not
need
to
speak
to
it
.
The
Indictment
in
the
next
place
proceeds
to
mention
Letters
Patents
of
Queen
granted
to
the
Mayor
and
Commonalty
in
the
year
of
her
Reign
,
which
provides
,
that
there
shall
be
twelve
Aldermen
,
and
how
upon
the
death
or
removal
of
an
Alderman
,
a
new
one
should
be
chosen
,
that
is
,
by
the
Mayor
and
the
surviving
Aldermen
,
and
the
greater
number
of
them
,
being
call'd
together
(
as
the
Indictment
suggests
)
by
the
Summons
of
the
Mayor
.
The
whole
Indictment
and
the
Offence
,
we
are
charged
with
being
grounded
upon
these
Letters
Patents
,
I
shall
apply
my self
to
speak
to
it
;
for
our
Crime
is
in
the
undue
electing
of
an
Alderman
,
namely
not
being
summoned
together
for
that
purpose
by
the
Mayor
,
and
doing
it
in
his
absence
.
I
must
desire
the
Court
to
observe
in
what
manner
the
mention
of
these
Letters
Patents
is
introduced
.
The
Matter
and
Question
before
us
is
concerning
the
Election
of
an
Alderman
for
the
City
of
which
concerns
the
very
being
,
and
succession
,
and
continuance
of
the
Corporation
:
Nothing
can
more
nearly
concern
it
.
The
defects
I
observe
in
the
frame
of
this
Indictment
are
these
:
It
does
not
so
much
as
say
or
alledge
,
that
or
that
there
was
,
or
yet
is
,
any
Corporation
at
all
there
,
nor
what
it
does
consist
of
(
if
there
be
any
)
nor
by
what
name
they
are
called
;
whether
there
ought
to
be
a
Mayor
or
not
;
whether
their
Corporation
be
by
Charter
,
or
Prescription
.
And
this
Court
cannot
judicially
take
notice
that
there
is
any
Corporation
there
,
or
what
it
is
,
unless
it
had
been
shewn
.
Now
if
there
be
no
Corporation
,
and
no
Mayor
of
right
,
then
our
meeting
to
choose
an
Alderman
without
his
Summons
,
and
in
his
absence
,
is
no
undue
nor
irregular
Proceeding
:
It
cannot
appear
to
the
Court
whether
the
Mayors
Summons
and
presence
at
the
Election
be
necessary
or
not
.
Now
in
all
legal
Proceedings
that
any
way
concern
a
Corporation
,
it
is
constantly
averr'd
and
alledged
that
there
is
a
Corporation
,
and
what
it
is
,
and
how
erected
;
and
the
least
that
can
be
in
any
Case
is
,
to
say
that
it
is
where
the
Corporation
extends
to
a
Town
or
City
which
make
any
Prescription
,
or
set
forth
any
Custom
.
Thus
we
find
it
in
the
in
the
Case
of
a
Custom
of
Foreign
bought
and
Foreign
sold
,
They
Prescribe
in
being
a
Corporation
.
So
in
A
Case
of
a
to
Restore
a
Capital
Burgess
to
his
Place
and
Office
of
a
Capital
Burgess
in
the
Writ
was
directed
to
the
Mayor
and
Commonalty
of
the
very
Words
of
the
Writ
suppose
a
Corporation
,
and
shew
what
their
Name
is
.
The
Return
thereupon
by
the
Mayor
and
Commonalty
is
,
That
Queen
granted
to
the
Mayor
and
Commonalty
,
that
the
Mayor
and
Recorder
should
be
Iustices
of
the
Peace
,
and
that
was
a
Capital
Burgess
,
and
did
misdemean
himself
towards
the
Mayor
,
and
thereupon
he
was
disfranchised
.
In
the
printed
Margent
of
that
Case
,
(
which
I
suppose
is
my
Lord
own
Opinion
it
is
said
,
That
in
their
Return
they
first
ought
to
prescribe
,
That
there
hath
been
a
Corporation
of
a
Mayor
and
Commonalty
time
out
of
the
Memory
of
Man
;
and
not
to
begin
with
the
mention
of
a
Grant
made
to
a
Coporation
,
as
the
Indictment
does
in
our
Case
;
and
not
shew
the
Original
and
Erection
of
it
,
either
by
Prescription
or
Charter
.
And
Mr.
(
a
Learned
Man
)
in
his
abridging
of
bids
his
Reader
observe
this
Marginal
Note
.
Yet
in
that
Case
the
Return
was
but
in
answer
to
the
Writ
of
Restitution
,
which
Writ
it self
admitted
there
was
a
Corporation
,
and
directs
the
Writ
to
them
by
Name
;
yet
by
the
Opinion
there
,
it
was
a
defect
in
the
Return
not
to
shew
that
they
were
by
Prescription
.
to
set
forth
how
they
came
to
be
incorporated
;
to
which
Return
there
as
has
been
held
by
some
;
how
much
more
in
such
a
Case
as
which
must
be
traversed
and
pleaded
to
,
and
therefore
ought
to
be
more
exact
.
That
was
in
a
Case
of
removing
of
a
chief
Member
(
a
Capital
Burgess
of
a
Corporation
;
ours
is
in
a
Case
of
the
choosing
in
of
a
chief
Member
(
an
Alderman
)
into
a
Corporation
;
so
that
ours
is
much
resembling
that
Case
in
that
respect
.
Another
thing
wherein
the
Indictment
is
faulty
,
is
this
,
upon
which
the
Indictment
is
grounded
,
and
upon
the
Construction
of
which
the
Case
depends
.
The
Indictment
that
Queen
made
or
granted
any
Letters
Patents
to
the
Mayor
and
Commonalty
of
That
there
should
be
twelve
Aldermen
,
and
for
the
appointing
how
they
should
be
chosen
;
(
upon
which
our
Case
arises
)
nor
does
it
so
much
as
say
which
would
not
have
been
enough
neither
,
but
it
introduces
the
mention
of
those
Letters
Patents
no
otherwise
than
by
these
Words
,
There
were
or
ought
to
be
twelve
Aldermen
,
after
the
death
of
an
Alderman
,
the
Mayor
and
the
surviving
Aldermen
Now
this
is
no
positive
and
direct
shewing
that
there
ought
to
be
any
Aldermen
,
nor
how
they
should
be
chosen
;
but
it
is
no
more
than
the
Opinion
and
Conceit
of
the
Iury
that
found
the
Indictment
upon
their
perusal
of
the
Letters
Patents
,
which
were
produced
in
Evidence
to
them
;
the
Iury
take
it
by
way
of
Collection
out
of
a
Record
,
of
which
they
are
no
proper
Iudges
.
And
this
being
which
is
and
ought
to
be
very
exact
and
certain
,
and
which
is
in
a
criminal
proceeding
to
which
the
Parties
must
plead
,
and
if
convict
,
are
liable
to
Fine
and
Imprisonment
;
the
Law
is
more
curious
in
this
,
than
where
Parties
do
agree
That
all
Criminal
Proceedings
must
be
very
exact
and
certain
,
is
proved
by
this
,
would
ever
help
them
but
by
express
Words
except
and
exclude
them
from
the
benefit
of
them
.
It
is
said
in
a
fortiore
must
it
be
which
are
the
Kings
Counts
or
Declarations
to
which
the
Party
shall
answer
,
they
ought
to
be
full
and
not
taken
by
Intendment
,
or
to
be
by
way
of
Argument
;
so
it
is
held
in
and
in
Sir
If
it
be
objected
,
That
the
Indictment
is
but
the
finding
of
a
Iury
,
who
are
the
(
as
we
call
them
)
and
they
know
not
the
forms
of
Law
.
The
Fact
indeed
is
found
by
the
Iury
,
but
the
constant
course
is
to
have
the
Iury
consent
to
mend
the
Form
,
and
the
Kings
Council
are
addised-with
in
the
drawing
of
it
,
and
after
't
is
found
;
and
sometimes
the
Iudges
peruse
it
.
The
Indictment
proceeds
on
and
says
,
That
continually
after
that
time
(
which
must
refer
to
the
date
of
the
Letters
Patents
of
Queen
the
Recorder
and
the
rest
of
the
Aldermen
were
and
ought
to
be
(
I
have
been
Recorder
there
above
these
one
and
twenty
years
and
never
knew
my self
to
be
a
Privy
Councellor
till
now
.
)
But
the
Indictment
(
unhappily
)
says
there
the
Word
(
as
big
as
it
is
)
is
but
it
makes
us
but
Privy
Councellors
to
the
Mayor
.
But
this
is
a
mistake
too
;
for
the
Recorder
and
Aldermen
are
not
a
Privy
Council
to
the
Mayor
,
but
the
Mayor
and
they
are
a
Council
to
the
City
.
The
like
to
this
too
appears
in
the
printed
Margent
of
The
Clerk
who
drew
this
Indictment
,
or
the
Council
,
who
ever
it
was
,
thought
they
could
not
exalt
the
Mayor
of
high
enough
,
unless
they
made
him
a
Prince
and
furnished
him
with
a
Privy
Council
,
and
to
fill
the
Kingdom
again
with
a
great
many
or
petty
Kings
,
as
it
was
amongst
the
before
the
coming
of
the
It
is
part
of
the
Misdemeanour
charged
upon
that
he
did
say
to
the
Mayor
of
Now
to
say
it
to
a
Mayor
in
good
earnest
,
as
this
Indictment
does
,
I
take
to
be
much
worse
.
The
Indictment
having
made
the
Recorder
and
Aldermen
it
goes
on
,
and
lays
it
down
for
Law
or
Vsage
,
which
is
still
from
the
date
of
the
Patent
of
Queen
(
we
must
suppose
the
choosing
an
Alderman
is
such
Business
)
But
upon
what
ground
does
the
Indictment
lay
this
down
for
a
Rule
?
Is
it
because
the
Letters
Patents
so
direct
?
If
so
,
I
agree
it
is
a
clear
Case
,
for
the
Letters
Patents
that
create
a
Corporation
may
mould
and
frame
,
and
form
its
own
Creature
as
it
pleases
.
But
then
the
Indictment
ought
to
have
alledg'd
it
positively
,
that
the
Letters
Patents
do
so
provide
,
but
the
Indictment
speaks
it
by
a
kind
of
implication
and
uncertainty
,
but
not
positively
,
nor
directly
:
It
says
,
that
continually
they
have
not
accustomed
to
meet
without
the
Mayor's
Summons
,
and
in
his
presence
.
It
may
be
they
relye
upon
This
can
be
no
legal
Custom
nor
Prescription
,
for
we
know
the
Head
and
Original
of
it
,
which
is
but
from
the
year
of
Queen
so
that
't
is
not
like
the
River
If
they
say
I
answer
.
Vsage
may
expound
very
ancient
Charters
,
where
the
words
are
obsolete
and
obscure
,
and
may
bear
several
senses
;
but
this
Charter
has
not
so
much
as
ambiguous
Words
,
nor
any
thing
that
can
hear
such
a
Construction
.
But
at
last
we
shall
be
told
,
That
does
operate
with
the
Charter
,
and
requires
the
Mayor's
Summons
and
Presence
to
the
choice
of
an
Alderman
,
and
also
in
all
such
like
Cases
.
and
I
shall
apply
my self
to
it
.
I
think
it
will
be
granted
,
That
the
Mayor
has
in
the
Election
of
an
Alderman
(
as
great
a
Prince
,
and
as
absolute
as
the
Indictment
will
make
him
;
)
he
has
but
one
single
Voice
,
and
if
the
majority
of
the
Votes
be
against
his
Vote
,
the
majority
must
carry
it
against
the
Mayor
.
require
the
Mayor's
Summons
and
Presence
than
it
does
that
of
the
senior
Alderman
.
it
being
part
of
the
name
of
the
Corporation
to
whom
the
Grant
must
be
made
.
He
is
named
too
,
he
many
times
being
none
of
the
Aldermen
,
and
therefore
could
in
the
naming
of
Aldermen
,
but
must
therefore
be
named
by
himself
.
And
besides
,
They
usually
say
,
He
represents
the
King
,
but
that
is
but
a
Notion
,
and
a
Complement
to
him
;
he
has
no
more
power
than
an
Alderman
,
who
is
a
Iustice
,
and
a
Iudge
of
the
Goal-Delivery
as
well
as
the
Mayor
.
That
there
can
be
no
chusing
of
an
Alderman
,
but
by
the
Summons
of
the
Mayor
,
and
in
his
presence
,
in
that
Clause
that
provides
for
the
Election
of
an
Alderman
;
but
that
it
does
not
:
The
only
is
not
of
the
sort
of
Persons
,
but
of
the
majority
of
the
Electors
,
(
having
mentioned
before
,
the
Mayor
and
Aldermen
.
)
Nay
,
there
is
Charter
it self
and
that
is
,
there
are
in
the
same
Charter
to
other
purposes
,
that
do
expressly
appoint
and
the
Mayor
and
Recorder
are
made
to
be
of
the
which
proves
,
That
where
it
is
not
so
expressed
,
the
Mayor
himself
is
not
of
the
and
this
indeed
led
us
to
that
Opinion
and
Construction
,
that
we
proceeded
to
make
our
Election
upon
it
:
A
Charter
in
one
Clause
of
it
,
is
best
Expounded
from
other
Clauses
in
the
same
Charter
.
In
the
Clause
that
gives
them
power
of
the
Mayor
and
Recorder
are
both
of
the
So
in
the
it
is
expresly
provided
,
that
it
shall
be
done
before
the
Mayor
and
Recorder
both
.
In
the
Clause
that
gives
them
power
it
appears
by
the
express
Words
and
without
him
;
for
there
the
for
that
purpose
is
So
that
a
Sessions
may
be
held
without
the
Mayor
;
yet
I
would
never
do
it
if
I
could
prevail
with
the
Mayor
to
joyn
with
us
,
as
we
earnestly
endeavour'd
time
after
time
to
do
in
the
Case
before
you
,
for
the
chusing
of
an
Alderman
,
but
he
utterly
refus'd
us
,
at
four
several
times
,
at
some
good
distance
of
time
.
If
it
be
said
,
That
the
power
to
elect
an
Alderman
is
given
to
the
Mayor
and
Aldermen
,
or
the
major
part
of
them
;
and
by
the
Name
of
his
Office
;
and
therefore
is
of
the
without
any
other
express
making
of
a
upon
what
account
he
is
so
named
,
and
it
could
not
be
otherwise
.
But
that
this
does
not
so
make
him
of
the
in
it
,
is
manifest
by
this
,
that
of
persons
,
tho'
in
the
beginning
of
the
Clauses
,
yet
when
they
come
to
make
him
of
the
This
shews
the
naming
him
before
by
his
Office
did
not
do
it
,
if
it
did
,
the
naming
of
him
again
in
the
will
be
a
Tautology
,
and
a
vain
Repetition
.
But
perhaps
it
will
be
said
,
to
summon
the
Corporation
(
and
amongst
the
rest
the
Aldermen
)
when
he
sees
there
is
occasion
,
and
he
must
as
Mayor
be
present
among
them
,
or
nothing
can
be
done
.
Let
us
examine
the
truth
of
this
.
Those
that
and
I
heard
it
was
said
at
the
Tryal
,
that
it
was
drawn
with
good
advice
;
for
the
Indictment
it self
challenges
this
Right
,
to
the
Mayor
upon
another
ground
.
as
I
have
already
observ'd
;
which
says
,
that
therefore
they
thought
it
was
not
his
due
at
the
Common
Law
.
that
imports
no
such
thing
:
He
is
that
is
,
the
Greater
,
the
more
Eminent
;
this
notes
his
pre-eminence
in
Respect
and
Reverence
,
but
gives
him
little
more
of
power
than
what
the
rest
of
the
Aldermen
have
.
The
like
Office
among
the
old
was
the
which
(
as
says
)
comes
from
he
does
He
goes
first
,
and
sits
uppermost
,
but
it
gives
him
no
more
power
.
But
the
Mayor
in
our
Case
would
neither
lead
nor
drive
.
But
if
there
can
be
no
Election
of
an
Alderman
without
his
Summons
and
Presence
,
and
if
he
be
wilful
(
as
the
Mayor
in
our
Case
was
)
he
is
not
only
(
as
the
vulgar
Saying
is
)
or
The
twelve
Aldermen
without
him
,
will
be
but
so
many
the
Mayor
will
be
the
and
the
Aldermen
will
signifie
only
in
conjunction
with
him
.
We
may
then
say
of
every
Alderman
,
as
the
one
Captain
said
of
the
other
of
Mr.
Mayor
will
be
that
which
the
Logicians
call
So
much
for
his
Name
and
Title
.
That
does
not
require
his
Summons
nor
Presence
in
all
the
meetings
of
the
Aldermen
;
for
the
Business
of
the
Corporation
,
it
is
not
incident
nor
essential
to
his
Office
of
Mayor
by
the
Common
Law
.
The
Common
Law
looks
upon
him
as
the
Head
or
Chief
of
a
Corporation
;
but
he
is
no
Officer
of
the
Common
Law
,
to
whom
the
Common-Law
limits
or
prescribes
any
Duty
,
as
it
does
to
a
Iudge
,
a
Sheriff
,
a
Conservator
of
the
Peace
,
a
Coroner
or
a
Constable
:
These
are
all
Officers
at
the
Common
Law
,
and
the
Common-Law
instructs
them
in
their
Power
and
Duty
.
But
the
Mayor
being
the
Head
of
a
Corporation
,
and
a
Corporation
having
its
essence
by
Charter
or
Prescription
(
which
presupposes
a
Charter
)
he
has
no
power
but
what
the
Charter
expresly
gives
him
.
The
Common
Law
takes
no
farther
notice
of
him
.
Let
us
examine
and
there
we
shall
find
the
true
Nature
and
Office
of
a
Mayor
,
or
any
other
Head
,
(
for
't
is
all
one
.
)
The
true
Ground
and
Original
of
Corporations
in
Cities
and
great
Towns
,
is
this
:
Those
are
generally
the
Staples
of
Trade
and
Merchandize
;
and
Trade
(
as
is
said
cannot
be
maintain'd
without
Order
and
Government
.
And
therefore
the
King
,
for
the
Publick
Good
,
may
exect
or
Incorporation
of
Merchants
for
the
Encrease
and
Advancement
of
Trade
and
Merchandizing
.
Suppose
the
King
should
by
his
Charter
Encorporate
a
Town
,
by
the
Name
of
Mayor
and
twelve
Aldermen
,
and
should
not
set
out
their
Duty
and
Office
.
What
power
would
the
Law
give
them
in
that
Case
?
They
would
have
no
power
as
Conservators
of
the
Peace
,
or
as
Iustices
of
the
Peace
:
They
could
neither
Fine
or
Imprison
.
If
they
should
take
upon
them
to
meddle
in
these
matters
,
without
express
power
given
them
by
the
words
of
the
Charter
,
It
would
be
Therefore
Charters
usually
add
these
Powers
by
express
Clauses
to
those
purposes
,
and
make
the
Mayor
a
Iustice
of
Peace
,
or
a
Iudge
of
Goal-Delivery
;
but
then
he
acts
in
those
Powers
not
but
because
of
the
express
power
given
him
,
as
it
might
have
done
to
any
other
Man
.
The
uniting
the
Powers
in
one
person
,
does
not
confound
the
several
and
different
Capacities
of
that
person
.
That
the
Charter
gives
the
only
Rule
in
these
Cases
,
and
that
a
Corporation
is
a
meer
Creature
of
the
Charters
that
does
constitute
it
,
and
gives
it
it's
Being
;
and
therefore
the
Bounds
and
Limits
of
it's
working
appears
,
by
this
.
Suppose
that
neither
this
nor
any
other
Charter
had
given
to
this
Corporation
of
any
power
to
choose
a
new
Mayor
,
or
new
Aldermen
upon
the
Death
of
the
old
,
they
could
then
have
made
no
new
Election
,
but
when
the
Mayor
and
Aldermen
had
died
,
the
Corporation
had
been
dissolv'd
.
The
Charter
that
gives
them
their
Being
,
must
provide
for
their
Continuance
and
Succession
.
Thus
it
is
held
in
the
Case
of
Ireland
,
in
those
Reports
that
go
by
the
Name
of
the
Lord
So
that
the
Charter
must
provide
for
an
Election
in
order
to
a
Succession
,
or
otherwise
the
Law
will
not
help
them
.
And
though
the
Mayor
is
the
more
Eminent
and
Excellent
,
and
ought
to
have
greater
respect
and
reverence
,
yet
that
we
are
upon
is
to
be
consider'd
in
the
nature
of
it
,
It
is
not
for
then
the
Mayor
ought
to
be
preferr'd
in
it
.
But
it
is
matter
It
is
to
choose
an
Alderman
.
It
is
rather
a
Burthen
than
a
Power
or
Authority
;
as
is
said
in
the
Mayor
of
's
Case
in
But
then
it
will
be
ask't
,
that
if
it
depend
upon
the
Charter
,
and
not
upon
the
Common
Law
,
This
will
be
a
great
defect
,
and
so
there
will
be
no
meeting
,
nor
no
Election
,
and
so
the
Corporation
will
expire
.
To
this
I
Answer
,
That
the
Charter
does
provide
for
it
,
for
those
whose
Duty
it
is
to
make
an
Election
,
it
is
their
Duty
to
agree
to
meet
for
that
purpose
,
and
to
appoint
the
time
,
or
else
they
do
not
discharge
their
Duty
.
They
break
their
Oath
and
are
punishable
for
their
Omission
,
and
may
forfeit
their
Charter
by
it
.
Now
I
do
not
deny
but
it
is
the
Duty
of
the
Mayor
,
and
it
is
the
equal
Duty
of
the
Aldermen
,
to
see
a
time
be
appointed
for
an
Election
.
And
as
the
Mayor
is
the
Chief
in
pre-eminence
,
so
it
aggravates
his
neglect
if
he
refuses
it
:
But
his
neglect
of
his
Duty
will
not
excuse
the
rest
of
the
Electors
for
the
not
doing
of
their
Duty
,
and
the
performing
of
their
Qaths
.
If
it
be
said
,
What
if
they
do
not
agree
upon
the
time
,
but
are
divided
?
I
Answer
.
Whoever
can
carry
an
Election
when
they
are
met
and
chuse
shall
also
govern
in
the
time
of
meeting
if
there
be
any
difference
about
it
;
and
that
is
not
the
Mayor
,
but
the
Now
this
agrees
with
the
Rule
of
the
Law
in
the
like
Cases
.
In
a
Commission
of
the
Peace
to
try
Felonies
,
And
to
hold
a
Court
of
Quarter-Sessions
,
Who
shall
issue
out
the
Summons
,
and
appoint
the
Time
?
Those
that
constitute
the
Court
,
and
are
to
Exercise
the
Power
,
must
issue
out
the
Summons
.
If
twenty
Iustices
of
the
Peace
,
not
having
one
of
the
amongst
them
,
should
issue
out
a
Summons
for
a
General
Quarter-Sessions
,
it
would
be
void
;
for
twenty
Iustices
of
the
Peace
cannot
hold
such
a
Sessions
,
if
there
be
not
one
of
the
among
them
:
Nor
can
the
alone
do
it
,
though
he
is
commonly
most
Eminent
.
Thus
is
it
in
the
Commission
of
Gaol-Delivery
,
and
of
Dyer
and
Terminer
.
We
may
see
the
Forms
of
them
in
The
express
words
of
their
Commission
,
for
appointing
time
and
place
,
And
therefore
there
was
no
need
of
any
more
express
Provision
in
the
Charter
,
for
a
Summons
for
an
Election
of
an
Alderman
,
or
the
appointing
of
a
time
.
In
the
next
place
,
for
the
as
well
as
their
meeting
by
his
Summons
,
I
see
no
reason
for
it
.
It
is
true
,
there
is
a
Case
in
Print
that
seems
to
make
for
it
,
tho'
I
never
yet
heard
it
so
much
as
mention'd
,
either
at
the
Trial
(
for
I
was
not
there
)
or
throughout
the
whole
Case
;
yet
it
is
fit
for
me
to
take
notice
of
it
;
for
I
make
no
doubt
but
before
we
have
done
we
shall
hear
of
it
.
It
is
in
Serjeant
and
the
Borough
of
which
were
only
two
Iudges
the
Chief
Iustice
and
Iustice
no
other
of
the
Iudges
being
there
.
)
That
if
a
Corporation
consists
of
a
Mayor
and
eight
Aldermen
,
with
a
Clause
in
the
Patent
,
That
if
any
of
the
Aldermen
dye
,
that
then
the
Mayor
and
the
rest
of
the
Aldermen
within
eight
days
after
shall
Elect
another
;
though
it
be
not
limited
,
that
they
or
the
greater
number
of
them
may
elect
,
yet
the
greater
number
of
them
may
elect
.
And
if
the
Mayor
,
at
the
time
of
the
death
of
an
Alderman
,
be
absent
at
till
after
the
eight
days
;
and
the
rest
of
the
Aldermen
within
eight
days
,
come
to
the
Deputy
Mayor
and
require
him
to
make
an
Assembly
of
them
,
to
elect
another
within
the
eight
days
,
and
he
refuse
;
and
upon
that
the
greater
number
of
the
Aldermen
meet
without
the
Mayor
or
his
Deputy
,
and
Elect
an
Alderman
;
that
it
is
a
void
Election
,
This
seems
to
be
a
stronger
Case
than
ours
,
for
there
is
a
certain
time
limited
,
by
which
they
must
make
their
Election
,
eight
days
I
first
Observe
,
That
this
Case
(
as
far
as
I
can
find
)
was
not
a
Case
depending
by
any
Suit
or
Action
;
for
in
that
Case
it
is
said
,
So
that
I
suppose
it
was
upon
a
Motion
only
:
I
have
a
Copy
of
the
Rules
which
shews
it
to
be
so
(
as
I
take
it
.
)
Then
it
does
not
appear
to
be
upon
an
Argument
,
for
had
it
beén
so
,
two
Iudges
(
I
presume
)
would
not
have
determin'd
it
,
but
have
put
it
off
till
the
Court
had
been
full
(
as
usually
they
do
)
therefore
it
was
not
so
solemn
,
nor
has
not
so
great
Authority
.
But
take
it
as
it
is
.
The
time
of
eight
days
being
limited
,
by
which
the
Election
was
to
be
made
,
makes
the
Case
never
a
whit
the
stronger
;
for
there
the
Iudges
declare
,
that
there
may
be
an
Election
after
the
eight
days
,
and
the
limiting
that
time
was
to
quicken
them
.
Then
observe
the
ground
those
two
Iudges
went
upon
,
they
as
doubtless
they
would
,
had
they
thought
that
the
Common
Law
would
have
ruled
it
;
for
if
the
Common
Law
serves
for
it
,
it
was
idle
to
resort
to
any
other
ground
.
But
the
Iudges
in
the
Case
of
say
,
that
the
Mayor
must
be
present
at
the
Election
,
So
that
they
went
by
that
Rule
which
I
have
urged
,
which
is
the
words
of
the
Grant
:
't
is
the
Charter
only
must
give
the
Rule
,
as
I
have
Argued
all
this
while
.
Now
what
the
words
of
the
Charter
were
,
in
the
Case
of
does
not
appear
in
the
Report
of
that
Case
.
Perhaps
there
was
an
express
Provision
in
the
Charter
,
requiring
the
meeting
of
the
Aldermen
by
the
Summons
of
the
Mayor
,
and
in
his
presence
,
which
if
so
,
then
there
is
no
disputing
against
it
.
And
the
drawer
of
the
Indictment
against
us
,
has
so
drawn
it
,
as
if
the
Charter
in
our
Case
did
so
require
it
too
.
But
there
is
nothing
to
that
purpose
;
nay
,
as
I
have
observ'd
,
there
are
concomitant
Clauses
that
give
another
construction
,
and
argue
to
the
contrary
.
Therefore
the
Case
of
differs
from
ours
But
there
is
another
thing
wherein
the
Case
of
and
ours
differs
I
am
no
Enemy
to
the
Government
I
Live
under
;
if
any
man
think
otherwise
of
me
,
I
care
not
,
because
I
cannot
govern
another
Man's
Thoughts
.
I
do
agree
that
this
Sovereign
Court
of
the
as
is
resolv'd
in
's
Case
,
hath
a
super-intendency
,
and
a
special
Authority
in
Cases
of
this
nature
,
which
more
concern
matter
of
Government
and
the
publick
Peace
and
Order
,
than
any
Man
's
private
Right
or
Property
.
And
in
such
Cases
this
Court
governs
it self
much
by
the
Circumstances
of
the
Case
.
Now
let
us
mind
the
Circumstances
of
the
Case
Reported
by
Serjeant
and
of
our
Case
,
and
let
them
be
compar'd
,
and
there
will
be
a
very
wide
difference
between
them
.
And
therein
I
dare
appeal
to
any
rational
unbiass'd
Man
in
the
World
,
for
the
Innocency
of
our
proceedings
in
the
whole
matter
.
The
Mayor
in
the
Case
of
happen'd
to
be
in
at
the
death
of
the
Alderman
(
to
supply
whose
place
there
needed
the
Election
.
)
He
was
not
in
the
Town
that
was
to
chuse
,
whereof
he
was
Mayor
when
the
Election
was
made
.
The
Aldermen
were
under
an
apprehension
that
they
should
be
guilty
of
a
great
omission
and
neglect
of
their
Duty
,
and
perhaps
had
some
thought
of
their
being
under
an
Oath
too
,
and
that
they
might
be
liable
to
punishment
if
they
did
not
chuse
within
the
eight
days
prescrib'd
by
their
Charter
;
nay
,
't
is
likely
they
thought
they
could
make
no
choice
at
all
if
they
did
it
not
within
the
eight
days
:
Tho'
all
this
was
but
their
mistake
of
the
Law
,
yet
it
was
very
pardonable
in
them
.
The
Iudges
in
their
Resolution
upon
that
Case
,
rectifie
that
Mistake
,
and
a
new
Election
is
thereupon
order'd
by
this
Court
.
The
Mayor
there
was
not
wilfully
absent
,
for
he
was
at
when
the
Alderman
died
:
he
was
at
a
very
great
distance
from
his
Town
too
miles
,
as
I
take
it
;
so
that
he
could
hardly
hear
of
the
death
of
the
Alderman
in
the
eight
days
time
,
and
go
down
thither
before
the
end
of
the
eight
days
,
there
was
no
great
necessity
of
an
Election
so
soon
.
And
the
Aldermen
had
done
what
they
did
out
of
a
zeal
for
the
Publick
;
though
it
were
a
zeal
without
knowledge
.
But
I
do
not
find
that
the
void
Election
and
the
Aldermens
meeting
about
it
was
held
a
Ryot
or
an
unlawful
Assembly
.
No
,
they
were
not
so
much
as
blam'd
for
what
they
did
;
nay
,
sure
they
were
rather
to
be
commended
for
their
just
intentions
.
But
our
Case
was
quite
another
thing
.
And
all
our
Circumstances
,
and
the
very
plain
words
of
our
Charter
that
appoints
the
manner
of
our
Election
,
we
had
,
to
our
great
charge
,
and
upon
good
advice
,
drawn
up
in
a
special
Plea
;
(
for
the
Question
truly
arises
upon
the
words
of
the
Charter
,
and
the
construction
of
them
.
)
How
it
happen'd
I
cannot
tell
,
but
a
Iudge
ruled
us
to
plead
not
Guilty
;
our
chargeable
special
Plea
came
in
a
little
too
late
.
It
was
a
matter
of
Record
,
and
of
Law
,
and
fitter
to
be
determin'd
by
the
Iudges
than
by
a
Iury.
But
these
in
truth
were
our
Circumstances
,
as
I
shall
briefly
relate
them
,
and
I
am
ready
to
make
out
the
truth
of
them
.
An
Alderman
of
tho'
chosen
,
yet
cannot
officiate
till
he
be
sworn
;
he
cannot
be
sworn
(
by
the
express
words
of
the
Charter
)
but
before
the
Mayor
and
Recorder
both
.
I
being
the
Recorder
of
happenn'd
to
be
there
some
time
before
the
day
of
chusing
Members
to
the
Parliament
not
long
after
Sir
death
:
I
was
indeed
invited
thither
.
the
then
Mayor
,
and
all
of
us
(
I
think
not
one
Alderman
absent
)
were
then
met
in
the
Council
Chamber
,
the
usual
place
for
that
purpose
:
we
had
nothing
else
to
do
.
It
was
mov'd
that
we
might
then
make
choice
of
a
new
Alderman
,
while
not
only
Mr.
Mayor
was
present
,
but
while
the
Recorder
was
there
too
:
So
that
the
Party
chosen
might
instantly
have
been
sworn
and
enter'd
upon
his
charge
;
for
they
have
their
distinct
Wards
:
And
the
Recorder
many
times
comes
not
thither
in
a
year
or
two
;
for
I
live
forty
Miles
from
them
,
and
I
seldom
tarry
above
two
nights
at
a
Gaol-Delivery
;
but
then
(
as
it
fell
out
)
I
was
there
upon
another
occasion
.
None
oppos'd
it
but
Mr.
Mayor
,
and
he
did
it
upon
a
Ceremony
and
Complement
,
as
he
pretended
,
because
Sir
(
as
he
said
)
was
not
yet
buried
.
Out
of
respect
to
Mr.
Mayor
,
we
did
forbear
.
Some
good
time
after
,
and
after
Sir
had
been
buried
,
I
happen'd
unexpectedly
to
be
there
again
;
and
Mr.
Mayor
was
earnestly
press'd
again
then
to
go
to
an
Election
upon
the
former
reason
,
that
the
new
Alderman
might
presently
be
sworn
.
Mr.
Mayor
still
refus'd
;
I
do
not
remember
but
all
the
rest
were
very
willing
to
have
gone
to
an
Election
.
We
did
the
second
time
forbear
,
tho'
I
think
we
were
all
there
(
I
am
sure
a
great
number
.
)
I
tarried
then
four
or
five
days
,
it
was
at
the
Election
to
Parliament
,
the
Poll
lasted
six
days
;
but
I
left
them
at
the
Poll
,
I
was
not
fond
of
being
chosen
.
The
Evening
(
as
I
take
it
)
before
I
went
away
,
we
were
again
upon
the
place
,
and
the
Mayor
with
us
,
and
he
was
again
press'd
to
it
,
but
wilfully
went
away
,
and
we
still
forbore
.
But
that
night
some
of
us
sign'd
a
Writing
,
desiring
Mr.
Mayor
to
joyn
with
us
,
and
we
declar'd
in
it
,
if
he
did
not
joyn
,
we
would
proceed
without
him
,
being
the
This
shews
we
had
no
design
to
chuse
in
his
absence
;
nay
,
it
plainly
appear'd
,
that
the
design
was
on
the
Mayor's
part
;
for
he
knew
I
could
not
stay
,
and
he
was
desirous
to
chuse
in
the
absence
of
some
of
us
,
that
he
might
carry
the
Election
against
the
person
next
in
course
to
be
chosen
,
and
every
way
qualified
I
consulted
the
Charter
,
and
found
it
as
I
have
now
observ'd
upon
it
,
and
was
clearly
of
Opinion
,
for
the
Reasons
I
have
offer'd
,
that
in
such
Circumstances
the
major
part
might
chuse
.
We
gave
notice
to
the
Mayor
and
all
the
Aldermen
then
in
Town
,
and
tho'
the
Government
is
most
miserably
divided
,
yet
in
this
Business
there
was
nothing
of
Faction
,
and
the
different
Parties
were
not
engag'd
;
only
the
Mayor
had
his
Design
.
For
we
were
six
Aldermen
at
the
Choice
:
Sir
an
intimate
Friend
of
the
Mayor's
being
lame
of
the
Gout
,
sent
us
an
Excuse
,
but
would
approve
of
our
Choice
.
Another
of
our
number
,
one
of
our
six
,
is
a
zealous
Man
of
Mr.
Mayor's
way
;
yet
not
taking
that
to
be
now
concern'd
,
joyned
with
us
,
and
voted
the
same
way
.
We
were
six
,
and
this
appears
by
the
Indictment
,
and
we
were
unanimous
in
the
person
we
chose
.
No
other
person
was
so
much
as
nam'd
,
nor
I
believe
thought
on
by
any
Body
,
unless
by
Mr.
Mayor
;
there
were
but
four
Aldermen
more
in
being
,
for
Mr.
Mayor
was
none
.
And
the
person
chosen
was
not
only
next
in
course
,
but
every
way
qualifi'd
;
has
a
great
Estate
(
worth
three
or
four
of
some
of
the
Aldermen
)
no
Tang
of
a
Fanatick
,
a
constant
Churchman
,
he
had
but
one
great
Fault
;
he
gave
his
Vote
at
the
Election
to
Parliament
for
my self
and
Sir
against
Mr.
Mayor
and
Sir
The
person
is
not
sworn
to
this
day
,
nor
does
desire
the
Office
,
but
rather
declines
it
,
being
fit
for
it
:
He
should
have
been
Mayor
this
Year
in
course
,
but
is
put
by
it
,
and
he
is
contented
.
There
has
been
another
since
chosen
in
his
place
,
by
the
Votes
of
five
only
,
(
Sir
the
Mayor
being
one
.
)
I
am
sure
they
are
not
And
for
this
choice
by
six
,
who
are
Iustices
of
the
Peace
as
well
as
Mr.
Mayor
,
and
the
other
four
,
we
who
are
four
of
six
,
are
all
Indicted
for
a
Ryot
upon
the
account
of
this
Election
.
And
this
Indictment
is
found
before
Mr.
Mayor
our
Fellow
Iustice
,
and
four
more
at
the
most
;
so
that
five
,
who
are
the
lesser
number
,
exercise
their
Authority
over
those
that
were
six
in
number
when
they
acted
,
which
fix
were
as
much
Iustices
of
the
Peace
as
they
five
.
It
is
observable
,
that
tho'
we
were
six
of
us
,
and
all
unanimous
in
our
Election
,
yet
they
have
politickly
Indicted
but
four
of
us
,
and
left
two
out
,
because
it
would
have
been
too
gross
and
palpable
,
if
six
Iustices
of
Peace
should
have
been
indicted
before
a
lesser
number
of
their
Brother
Iustices
.
But
had
they
Indicted
all
six
,
it
would
then
plainly
have
appear'd
too
that
the
choice
had
been
made
by
the
greater
part
,
which
they
wisely
thought
to
conceal
;
but
yet
it
does
appear
in
their
very
Indictment
(
though
darkly
couch'd
in
it
,
)
for
it
says
that
we
four
being
Recorder
and
Aldermen
,
did
chuse
the
Alderman
;
that
word
being
in
the
Plural
Number
,
must
be
two
more
at
least
.
If
it
shall
be
adjudg'd
that
we
cannot
chuse
an
Alderman
,
but
by
the
Mayor's
Summons
,
and
in
his
presence
,
these
Mischiefs
will
follow
.
for
he
that
can
order
the
time
as
he
pleases
,
and
forbear
to
summon
the
Electors
till
he
sees
his
own
opportunity
and
advantage
,
tho'
often
desired
to
go
on
upon
it
,
and
refuses
to
do
it
time
after
time
,
till
such
as
will
not
comply
with
him
be
out
of
the
way
(
as
the
Recorder
is
very
seldom
there
,
and
tarries
but
a
night
or
two
,
and
then
is
in
a
hurry
of
Business
,
and
most
of
the
Aldermen
are
often
at
their
Country
Houses
)
the
Mayor
will
cast
the
choice
upon
whom
he
thinks
fit
,
as
in
this
case
he
has
done
.
This
Mayor
and
four
Aldermen
have
rejected
the
choice
made
by
six
,
and
of
the
person
that
was
next
in
course
,
and
every
way
qualified
:
And
yet
the
Charter
thought
not
fit
to
trust
any
fewer
than
the
Mayor
and
the
whole
Bench
of
Aldermen
,
in
a
matter
of
this
importance
to
the
City
.
If
it
be
said
,
That
in
case
the
Mayor
unreasonably
defer
it
,
we
may
complain
to
this
Court
,
and
have
a
or
apply
our selves
to
the
King
and
Councel
to
compel
him
to
proceed
to
an
Election
.
Who
will
be
at
so
great
a
charge
and
trouble
?
And
that
course
is
not
so
speedy
,
it
may
chance
to
be
in
a
Vacation
;
but
let
it
be
as
speedy
as
can
be
,
the
Mayor
in
the
mean
time
has
obtain'd
his
Ends
,
and
gain'd
his
Opportunity
,
and
done
his
Work
,
as
the
Mayor
in
our
Case
did
;
where
the
Mayor
and
four
more
(
but
five
in
all
)
being
have
controll'd
the
choice
made
by
the
If
it
shall
be
said
,
That
if
the
be
present
,
and
join
in
Voting
to
an
Election
,
tho'
they
divide
in
the
person
,
yet
the
so
met
shall
make
a
good
Election
,
and
in
Law
it
shall
be
the
choice
of
all
present
.
That
I
must
deny
,
for
the
words
of
the
Charter
are
,
That
the
shall
make
the
choice
,
that
is
,
as
I
understand
it
,
agree
in
their
Votes
or
Voices
in
the
Party
chosen
,
and
so
it
was
in
the
choice
that
we
six
made
.
This
agrees
with
the
Rules
of
the
Common
Law
,
in
Elections
and
Leases
to
be
made
by
Corporations
.
and
Sir
And
this
agrees
with
the
Statute
of
But
if
this
should
not
be
Law
(
as
I
take
it
is
)
yet
the
subsequent
Election
of
an
Alderman
,
made
by
the
Mayor
and
four
Aldermen
more
,
cannot
be
good
;
for
though
the
Mayor
and
seven
Aldermen
were
present
at
it
,
yet
three
of
them
did
not
join
in
going
then
to
an
Election
;
for
they
had
join'd
with
us
before
in
our
choice
,
and
therefore
oppos'd
any
after
Election
to
be
made
.
But
they
have
gotten
a
conceit
among
them
at
that
what
is
done
in
a
Man's
presence
,
where
his
presence
is
requir'd
by
their
Charter
,
tho
he
dissent
and
oppose
what
is
done
,
is
yet
legally
done
.
As
in
the
Case
of
the
Swearing
of
an
Alderman
,
by
the
express
words
of
the
Charter
it
cannot
be
done
but
before
the
Mayor
and
Recorder
both
.
This
Sir
was
duly
chosen
an
Alderman
long
ago
,
but
not
sworn
until
the
last
Gaol-Delivery
when
we
were
going
to
Try
the
Felons
.
I
being
present
,
they
thought
that
sufficient
to
satisfie
the
Charter
,
and
in
a
Tumultuous
manner
,
with
an
hideous
noise
,
they
cryed
out
to
swear
him
,
and
this
was
not
the
usual
place
neither
for
it
.
I
oppos'd
the
Swearing
of
him
,
and
I
will
justifie
it
,
that
he
was
utterly
unfit
to
be
Sworn
,
by
something
that
happenn'd
since
his
being
Elected
an
Alderman
;
they
would
not
hear
me
,
but
resolv'd
to
proceed
to
swear
him
,
because
I
was
present
with
the
Mayor
.
Thereupon
I
withdrew
,
and
in
my
absence
they
went
on
to
swear
him
,
and
he
now
acts
as
an
Alderman
,
and
as
a
Iustice
of
Peace
,
under
this
colour
.
If
no
Election
of
an
Alderman
can
be
made
but
in
the
Mayor's
presence
,
For
if
he
find
the
Aldermen
like
to
chuse
contrary
to
his
mind
,
he
need
but
with
draw
,
and
all
the
rest
are
insignificant
persons
,
and
so
there
shall
be
no
Election
in
any
reasonable
time
,
and
thereby
the
Liberties
forfeited
.
If
this
absolute
power
allow'd
to
Mayors
it
may
do
as
much
Mischief
another
time
;
for
he
may
be
of
a
contrary
and
cross
humour
to
what
may
be
desir'd
.
And
he
is
not
a
person
nominated
by
any
superiour
power
to
that
place
,
or
impos'd
upon
the
Corporation
,
but
chosen
from
amongst
themselves
,
and
chosen
by
themselves
:
But
tho'
they
chuse
him
,
yet
it
is
not
safe
to
trust
all
the
Liberties
of
the
City
in
the
Breast
of
one
Man
;
for
one
man
may
easily
change
and
be
wrought
upon
,
where
many
cannot
.
It
is
better
to
trust
twelve
than
one
.
and
it
is
a
Maxim
at
the
Common
Law
,
and
strengthned
by
several
Acts
of
Parliament
,
It
is
Enacted
And
it
forbids
(
those
are
the
words
)
that
no
great
Man
(
such
as
every
Mayor
is
in
his
sphere
)
shall
disturb
to
make
free
Election
.
in
his
in
his
Exposition
of
that
Statute
,
says
it
extends
to
all
sorts
of
Elections
,
and
agreés
with
the
Maxim
of
the
Common
Law
.
Now
if
the
Mayor
shall
at
three
several
times
refuse
the
advice
and
desire
of
the
Aldermen
,
and
knowing
that
they
can
make
no
choice
without
him
,
refuse
to
join
with
them
till
he
sees
his
own
time
and
advantage
,
he
will
have
his
own
choice
,
do
what
they
can
;
for
before
they
can
complain
of
him
(
which
is
a
work
of
time
and
charge
,
and
trouble
)
he
will
have
done
his
work
,
and
so
prevent
them
.
And
then
where
is
the
freedom
of
Election
?
This
could
never
appear
more
plainly
than
in
this
Case
of
ours
,
where
and
the
choice
made
by
a
lesser
number
,
and
in
effect
by
Mr.
Mayor
only
,
is
that
which
carries
it
.
It
plainly
appears
that
we
had
no
sinister
design
to
do
any
thing
without
the
Mayor
,
for
we
did
all
we
could
to
get
him
to
join
with
us
,
and
he
thrice
denied
us
;
but
it
as
plainly
appears
that
the
Mayor
had
a
design
in
refusing
to
do
it
till
some
of
us
must
be
gone
,
and
then
to
steal
an
Election
behind
our
backs
,
by
a
lesser
number
,
when
he
had
the
advantage
.
After
all
that
I
have
said
I
do
agree
,
that
had
eleven
Aldermen
of
us
gone
about
an
Election
without
so
much
as
desiring
the
Mayor
to
join
with
us
,
or
it
may
be
upon
once
or
twice
being
refused
;
or
when
the
Mayor
had
been
occasionally
absent
;
or
had
it
any
way
appeared
that
we
meant
a
surprise
in
it
;
or
had
we
made
a
Choice
,
subject
to
the
least
Exception
,
and
had
he
not
obstinately
gone
away
from
us
,
being
in
person
upon
the
place
,
without
so
much
as
giving
us
the
least
reason
for
his
refusal
,
I
should
have
held
my
tongue
and
not
have
concern'd
my self
any
farther
in
it
.
I
hope
it
sufficiently
appears
,
that
I
have
been
no
Enemy
to
Government
and
Order
.
But
to
choose
an
Alderman
was
our
Duty
,
and
we
were
under
an
Oath
to
do
our
Duty
,
and
we
did
but
discharge
our
Trust
.
I
may
(
I
think
)
save
my self
the
labour
of
arguing
,
that
however
,
if
we
were
mistaken
in
the
Construction
of
the
Charter
,
and
in
the
point
of
Law
in
the
making
of
our
Election
,
yet
here
is
in
the
Case
(
for
we
are
indicted
for
a
Riot
)
for
a
Riot
is
the
doing
of
an
unlawful
act
neither
are
we
an
unlawful
Assembly
,
for
that
is
,
where
there
is
an
intent
to
do
an
unlawful
Act
,
but
still
but
they
go
away
without
doing
it
,
as
appears
by
And
in
case
the
Election
we
made
be
adjudged
duly
made
,
then
the
pretence
of
a
Riot
vanishes
of
it self
,
as
is
held
in
If
the
Indictment
be
void
for
the
principal
matter
,
which
in
the
Case
there
,
was
an
unlawful
Entry
against
the
Statute
of
where
that
Statute
was
mis-recited
,
they
were
not
allowed
in
that
case
to
stand
upon
the
Riot
.
I
have
but
a
short
word
more
.
I
have
been
the
Recorder
of
these
one
and
twenty
years
,
longer
I
think
than
any
Man
can
be
remembred
.
I
have
sworn
all
the
Aldermen
that
are
now
upon
the
Bench
,
in
my
time
,
and
many
more
who
are
now
dead
.
I
can
say
it
without
vanity
,
till
the
time
of
this
unhappy
Election
of
Members
to
the
Parliament
(
which
I
sought
not
)
I
had
the
good
Will
of
all
sides
,
even
of
this
Mr.
Mayor
,
who
was
,
Sir
for
I
never
would
join
with
any
Party
,
but
did
all
I
could
,
when
I
came
amongst
them
,
to
join
them
together
and
unite
them
:
For
ever
since
they
grew
rich
and
full
of
Trade
and
Knighthood
,
too
much
Sail
and
too
little
Ballast
,
they
have
been
miserably
divided
.
And
unless
this
Court
(
to
whom
I
think
it
properly
belongs
upon
complaint
in
such
Cases
)
will
examine
their
Dis-orders
and
command
Peace
and
Order
to
be
observed
in
our
Proceedings
,
I
cannot
safely
attend
there
any
more
,
nor
hold
any
Gaol
Delivery
.
I
submit
what
I
have
said
to
the
Court.
Whereupon
the
Court
arrested
the
Iudgment
.
IN
a
the
Case
was
died
Intestate
leaving
an
only
Sister
then
an
Infant
.
The
who
was
her
Great
Grandmother
,
came
into
the
and
prayed
to
be
assigned
her
Guardian
which
was
granted
,
and
thereupon
she
obtained
Administration
Afterwards
my
Lord
brought
a
Prohibition
suggesting
that
the
Court
had
granted
Administration
upon
a
surprise
,
and
being
Grandfather
to
the
Children
,
and
so
nearer
of
kinred
,
prayed
that
Administration
might
be
committed
to
him
.
The
Lady
replyed
,
that
it
was
obtained
after
great
deliberation
,
and
without
any
surprize
;
and
upon
a
Demurrer
the
Question
was
,
Whether
this
Administration
was
well
granted
to
the
Lady
.
It
was
argued
now
by
Dr.
for
the
Plaintiff
,
and
afterwards
by
a
Common
Lawyer
on
the
same
side
,
in
Term
following
.
And
by
Dr.
and
Sir
for
the
Defendant
The
Civilian
argued
,
That
the
Father
of
both
the
Children
,
died
intestate
,
and
that
their
Mother
administred
,
and
afterwards
made
a
Will
,
of
which
she
appointed
my
Lord
to
be
Executor
,
and
thereby
committed
the
Infant
to
his
Custody
;
which
being
in
Fact
true
,
the
Curatorship
of
the
Living
Child
,
by
the
Civil
Law
,
draws
to
it
the
Administration
of
the
Estate
of
the
dead
Child
.
There
is
a
And
wherever
a
Father
or
Mother
has
made
such
a
disposition
,
a
Iudge
cannot
assign
a
Guardian
.
The
Spiritual
Courts
have
power
to
repeal
this
Administration
granted
to
my
Lady
the
Right
is
not
in
question
,
for
whoever
has
it
reaps
no
advantage
,
because
't
is
for
the
benefit
of
the
Infant
;
the
contest
is
,
who
ought
to
be
admitted
by
the
Spiritual
Court
to
Administer
?
It
cannot
be
denied
but
that
the
Great
Grandmother
is
a
degree
more
remote
than
the
Grandfather
:
If
therefore
that
Court
hath
entrusted
one
who
ought
not
to
have
Administration
,
they
have
an
undoubted
power
in
such
case
to
make
an
Alteration
.
If
my
Lord
had
been
Administrator
,
it
had
been
agreeable
to
the
Common-Law
,
for
he
is
Guardian
in
Socage
It
was
said
,
That
my
Lord
was
really
indebted
to
the
Estate
of
the
Infant
intestate
,
and
therefore
as
this
Case
is
,
the
Spiritual
Court
ought
not
to
repeal
the
Administration
once
granted
,
for
't
is
for
the
benefit
of
the
Infant
.
'T
is
not
material
who
shall
be
Administrator
,
for
he
who
is
so
hath
no
power
over
the
Estate
;
he
is
only
a
in
the
Civil
Law
,
which
is
in
the
nature
of
a
Bayliff
in
our
Law
,
who
hath
only
power
to
sell
did
not
Originally
belong
to
the
Spiritual
Courts
they
had
that
Authority
And
as
those
Courts
had
not
original
Iurisdiction
in
such
Cases
,
so
they
had
no
power
to
grant
Administration
,
'till
enabled
by
the
Statute
of
For
before
that
time
the
Kings
of
by
their
proper
Officers
'T
is
plain
that
the
Ordinary
had
no
power
by
the
Common
Law
over
an
Intestate's
Estate
,
for
he
could
not
maintain
an
Action
to
recover
any
part
of
it
:
now
if
the
Law
had
given
him
a
power
over
the
Goods
;
it
would
likewise
have
given
him
an
Authority
or
Remedy
to
recover
them
.
An
Action
would
have
lain
against
him
at
the
Common
Law
,
and
by
the
Statute
of
which
was
made
in
affirmance
thereof
,
if
he
had
possessed
himself
of
such
Goods
,
and
refused
to
pay
the
Debts
.
Then
since
he
hath
no
original
Power
in
this
Case
,
and
this
being
a
special
kind
of
Administration
,
when
he
hath
once
executed
that
power
he
shall
not
repeal
it
;
and
the
Court
enclined
to
that
Opinion
,
IN
a
upon
a
Iudgment
in
the
in
an
Action
upon
the
Case
,
wherein
the
Plaintiff
declar'd
,
That
the
King
had
made
him
one
of
his
Ireland
,
and
that
he
was
a
Middlesex
,
and
had
serv'd
in
several
Parliaments
for
the
Burrough
of
and
that
the
King
having
summon'd
a
to
meet
at
he
did
stand
to
be
a
of
that
and
that
the
Defendant
did
then
speak
these
words
of
him
,
(
meaning
the
Plaintiff
Vpon
a
Tryal
there
was
a
Verdict
and
a
Iudgment
for
the
Plaintiff
.
This
Case
was
argued
by
Sir
for
the
Plaintiff
in
the
Errors
,
and
by
Mr.
for
the
Defendant
The
Questions
were
these
Whether
the
words
abstracted
from
the
Offices
set
forth
in
this
Declaration
were
actionable
or
not
?
Whether
they
are
actionable
as
joined
to
those
Capacities
?
The
Councel
for
the
Plaintiff
in
the
Errors
,
held
the
Negative
in
both
Points
.
The
word
is
not
defin'd
either
by
the
Common
Law
,
or
the
Statutes
of
this
Realm
;
for
from
the
first
of
the
Queen
to
the
it
is
not
to
be
found
what
a
There
are
several
Statutes
between
those
times
which
provide
against
the
Iurisdiction
of
the
and
which
inflict
particular
Punishments
upon
committing
Offences
therein
prohibited
,
but
none
of
those
Laws
give
any
definition
of
a
If
by
a
is
meant
him
who
embraces
the
Doctrine
of
the
it
was
punishable
before
the
Reformation
to
be
of
a
contrary
Opinion
:
Now
in
the
vulgar
acceptation
of
the
word
,
a
man
may
hold
the
same
Opinion
with
the
Rome
,
and
yet
not
profess
the
so
as
to
bring
himself
in
danger
of
any
of
the
Penalties
in
these
Laws
.
There
was
never
yet
an
Indictment
against
a
person
for
being
a
but
many
have
been
indicted
upon
the
breach
of
those
Laws
made
against
Recusants
,
by
which
they
incurred
the
Penalties
thereby
appointed
.
an
Action
on
the
Case
was
brought
in
the
for
calling
of
the
Plaintiff
the
King's
Serjeant
argued
,
That
the
Action
would
not
lye
,
because
the
word
did
import
a
Spiritual
Matter
,
of
which
the
Temporal
Courts
had
no
knowledge
;
and
of
that
Opinion
were
the
Shelley
:
The
same
may
be
said
in
this
Case
,
that
the
word
relates
to
something
which
is
Spiritual
,
of
which
this
Court
hath
no
cognizance
.
Words
which
are
actionable
must
immediately
the
person
of
whom
they
are
spoken
,
either
in
his
or
bring
him
in
danger
of
some
as
to
call
an
which
are
adjectively
spoken
,
yet
't
is
an
Injury
done
to
him
in
his
It
was
said
at
the
Trial
in
the
That
't
is
actionable
to
call
a
Man
at
this
time
,
though
it
might
not
be
so
at
another
time
.
This
seems
to
be
a
very
vain
assertion
,
for
though
the
Times
may
alter
,
the
Law
is
still
the
same
.
It
would
be
a
very
great
inconvenience
,
if
Men
should
be
deterr'd
by
Actions
to
call
another
Man
a
for
this
would
be
an
encouragement
to
and
a
check
upon
the
to
punish
the
Professors
thereof
,
for
saying
a
Man
is
a
who
is
really
so
both
in
his
Iudgment
and
Profession
.
But
admitting
the
word
to
be
actionable
,
't
is
not
so
before
Conviction
,
for
't
is
very
improperly
used
,
and
of
no
signification
or
discredit
before
that
time
.
These
words
are
not
actionable
as
coupled
with
his
Offices
,
because
he
hath
alledged
no
particular
damage
or
Loss
,
and
his
Offices
are
only
Honorary
,
and
of
no
Profit
,
and
therefore
he
could
receive
no
Damage
by
speaking
these
words
,
if
true
,
when
they
in
no
sort
relate
to
his
Offices
,
and
are
too
remote
to
be
applied
to
them
.
The
words
are
actionable
in
themselves
,
for
they
scandalize
the
Plaintiff
in
his
Reputation
,
and
may
be
a
means
to
bring
him
to
corporal
Punishment
;
for
by
several
Acts
of
Parliament
many
Punishments
are
inflicted
upon
which
is
the
same
thing
with
a
they
are
disabled
from
holding
any
Office
or
Imployment
in
the
Kingdom
,
they
are
not
to
come
into
the
Kings
presence
,
or
within
five
Miles
of
the
City
of
and
the
calling
of
him
subjects
him
to
the
danger
of
being
Indicted
for
a
Traytor
,
for
the
words
are
took
upon
him
the
Supremacy
which
the
had
unlawfully
Vsurped
,
there
were
certain
in
those
days
who
called
themselves
that
they
might
be
distinguished
from
those
who
bore
Allegiance
to
their
lawful
King
;
which
general
appellation
was
afterwards
changed
into
the
word
so
that
both
signifie
the
same
thing
.
The
Objection
that
tho
Times
change
,
the
Law
is
still
the
same
,
may
receive
this
Answer
,
That
when
the
force
of
words
is
changed
with
the
Times
,
those
words
shall
be
actionable
now
,
which
were
not
so
at
another
time
.
As
for
Example
:
the
proper
and
genuine
signification
of
the
word
is
a
Servant
,
but
now
the
Times
have
altered
the
sense
of
that
word
,
and
made
it
to
be
a
term
of
Reproach
;
so
that
't
is
actionable
to
call
an
Attorny
who
is
but
a
Servant
to
his
Client
.
Then
as
to
the
Objection
that
the
word
is
not
defin'd
in
our
Law
.
There
is
a
Statute
which
disables
a
Man
from
having
any
Office
whatsoever
who
shall
affirm
the
King
to
be
a
that
is
,
a
person
who
endeavours
to
introduce
But
if
the
word
is
not
actionable
of
it self
,
yet
as
coupled
with
his
Offices
't
is
otherwise
,
and
the
Plaintiff
may
well
maintain
this
Action
.
And
of
that
Opinion
was
all
the
Court
:
So
the
Iudgment
was
affirmed
.
ERror
of
a
Iudgment
in
for
Lands
in
the
County
of
the
Case
upon
the
special
Verdict
was
this
.
was
seized
in
Fee
of
the
Lands
in
question
,
who
had
Issue
his
only
Daughter
:
He
by
made
a
Settlement
of
those
Lands
upon
the
Earl
of
and
other
Trustees
therein
named
,
and
their
Heirs
,
to
the
use
of
himself
for
Life
,
and
after
his
Decease
to
the
use
of
his
Daughter
in
Tail
died
,
his
Daughter
being
then
but
two
years
old
.
She
afterwards
at
the
Age
of
fourteen
had
of
this
Settlement
,
but
not
by
the
Direction
of
the
Trustees
.
That
on
the
in
the
year
of
her
Age
Edward
Villiers
and
that
her
Husband
Fitzgerald
after
the
said
Marriage
.
That
the
Aunt
was
married
to
who
likewise
did
not
take
upon
him
the
Name
of
The
Questions
were
,
Whether
the
Estate
limited
to
be
forfeited
,
without
Notice
given
to
her
of
the
Settlement
,
by
the
Trustees
themselves
?
Whether
her
Estate
be
not
determined
by
her
marrying
Mr.
without
their
consent
And
it
was
argued
,
That
the
Estate
Tail
was
determined
.
And
first
as
to
the
point
of
Notice
;
't
is
not
necessary
to
be
given
to
the
Daughter
,
because
the
Father
had
not
made
it
in
the
Settlement
.
He
might
dispose
of
his
Estate
at
his
pleasure
,
and
having
made
particular
Limitations
of
it
,
there
is
no
room
now
for
the
Law
to
interpose
,
to
supply
the
defect
of
Notice
in
the
Deed.
And
to
this
purpose
the
Mayor
of
's
Case
was
cited
,
which
was
,
That
Devised
certain
Houses
to
his
Executors
in
Trust
,
and
their
Heirs
,
upon
condition
to
pay
mony
to
several
Charitable
uses
,
which
if
not
performed
,
then
he
devised
them
over
to
his
Heir
in
Tail
,
upon
the
same
Conditions
,
and
if
not
performed
by
him
,
then
to
the
Mayor
and
Commonalty
of
The
Trusts
were
not
performed
by
the
first
Devisees
.
A
Stranger
entered
and
levied
a
Fine
with
Proclamations
,
and
five
Years
passed
.
Then
the
Mayor
of
brought
his
Action
,
supposing
he
had
a
right
of
Entry
,
for
the
non
performance
of
the
Trusts
,
but
was
barred
by
the
Fine
,
although
it
was
argued
for
him
,
that
he
had
not
notice
of
the
Devise
or
breach
of
the
Trust
till
after
the
Fine
levied
;
which
shews
that
Notice
was
not
necessary
,
for
if
it
had
been
so
when
his
Title
accrewed
,
he
could
not
have
been
barred
by
the
Fine
.
the
Daughter
takes
notice
what
Estate
she
hath
in
the
Land
,
so
as
to
pursue
a
proper
Remedy
to
recover
it
,
so
she
ought
to
take
notice
of
the
Limitations
in
the
Settlement
,
and
hath
the
same
means
to
acquaint
her self
with
the
one
as
with
the
other
;
and
the
same
likewise
as
her
Aunt
had
to
know
the
Remainder
.
Suppose
a
Promise
is
made
to
indempnifie
another
from
all
Bonds
which
he
should
enter
into
for
a
third
person
,
and
then
an
Action
is
brought
against
him
,
wherein
the
Plaintiff
declared
that
he
was
bound
accordingly
,
and
not
saved
harmless
,
but
doth
not
shew
that
he
gave
notice
of
his
being
bound
,
yet
the
Plaintiff
shall
recover
.
As
to
the
Case
of
a
Copyholder
having
three
Sons
who
surrendred
to
the
use
of
his
Will
,
and
then
devised
to
his
middle
Son
in
Fée
,
upon
condition
to
pay
Legacies
to
his
Sisters
at
full
age
,
which
were
not
paid
.
Now
tho'
it
was
adjudged
that
his
Estate
was
not
determined
upon
the
non-performance
of
this
Condition
,
without
an
actual
demand
and
denial
,
and
that
he
was
not
bound
to
take
notice
of
the
full
age
of
his
Sisters
;
yet
this
is
not
an
Authority
which
can
any
wise
prevail
in
this
Case
,
because
't
is
a
Condition
to
pay
Legacies
,
which
is
a
thing
in
its
nature
not
to
be
paid
without
a
demand
,
which
implies
notice
.
In
all
Cases
where
Conditions
are
annexed
to
Estates
to
pay
Mony
,
there
notice
is
necessary
;
but
where
Estates
are
limited
upon
the
performance
of
collateral
acts
,
't
is
not
necessary
:
And
this
has
been
held
the
constant
difference
.
So
is
's
Case
,
which
was
this
.
The
Earl
of
had
two
Daughters
,
and
he
devised
House
to
the
Daughter
of
his
eldest
Daughter
in
Tail
,
which
she
had
by
the
Earl
of
if
not
,
or
if
she
should
dye
without
Issue
,
then
he
devised
the
said
House
to
in
Fee
,
who
was
the
Son
of
his
youngest
Daughter
,
and
who
had
married
one
without
her
Fathers
consent
The
Lady
the
first
Devisee
married
and
it
was
adjudg'd
against
her
upon
point
of
that
it
was
not
necessary
,
because
her
Grandfather
had
not
appointed
any
person
to
give
notice
;
he
might
have
imposed
any
Terms
or
Conditions
upon
his
own
Estate
,
and
all
Parties
concerned
had
the
same
means
to
inform
themselves
of
such
Conditions
.
The
third
Resolution
in
comes
nearest
to
this
now
in
question
,
it
was
the
Defendant
avowed
the
taking
The
Plaintiff
pleaded
in
Barr
to
the
Avowry
,
that
was
seized
in
Fee
of
the
place
where
,
and
devised
it
to
(
who
was
his
eldest
Son
)
for
sixty
years
,
if
he
so
long
lived
,
Remainder
to
for
Life
,
and
that
made
a
Lease
to
the
Plaintiff
for
a
year
.
The
Defendant
replied
,
that
after
the
Devise
made
a
Feoffment
in
Fee
of
the
same
Lands
amongst
others
,
to
the
use
of
himself
for
Life
.
Then
as
to
the
other
Lands
to
divers
Vses
contained
in
the
Deed
;
but
as
to
those
Lands
in
which
the
Distress
was
taken
,
to
the
same
Vses
as
in
the
Will
,
in
which
Conveyance
there
was
this
Priviso
,
He
did
hinder
the
Executors
to
carry
away
the
Goods
,
yet
it
was
adjudged
that
he
should
keep
his
Estate
,
because
being
a
Stranger
to
the
Feoffment
,
he
shall
not
lose
it
without
notice
of
the
Proviso
.
But
in
answer
to
that
Case
,
notice
was
not
the
principal
matter
of
that
Iudgment
,
it
turned
upon
a
point
in
Pleading
,
for
the
Avowant
had
not
shewed
any
special
act
of
disturbance
,
and
a
bare
denial
without
doing
any
more
was
held
to
be
no
breach
of
the
Condition
.
Some
other
Authorities
may
be
cited
to
prove
notice
necessary
,
as
where
Tenant
for
Life
of
a
Mannor
to
which
an
Advowson
was
appendant
did
in
the
year
who
neglecting
to
read
the
Articles
was
deprived
nine
years
afterwards
by
the
Ordinary
at
the
Suit
of
the
Patron
who
presented
him
,
who
also
dyed
two
years
after
the
Deprivation
;
then
the
Queen
presented
by
Lapse
,
whose
Presentee
was
inducted
,
and
six
years
afterwards
dyed
,
after
whose
death
he
in
Remainder
presented
now
though
the
Patron
was
a
Party
to
the
Suit
of
Deprivation
,
and
thereby
had
sufficient
notice
that
the
Church
was
vacant
,
yet
it
was
adjudged
that
a
Lapse
should
not
incurr
but
only
after
notice
given
by
the
Ordinary
himself
,
and
not
by
any
other
person
whatsoever
.
But
this
Case
may
receive
this
Answer
,
That
notice
had
not
been
necessary
at
Law
,
but
it
was
provided
by
a
particular
Act
of
Parliament
,
that
no
Title
by
Lapse
shall
accrue
upon
any
deprivation
,
but
after
six
months
notice
thereof
given
by
the
Ordinary
himself
to
the
Patron
.
'T
is
true
the
Law
is
very
tender
in
divesting
the
Rights
of
the
Subject
;
but
where
an
Estate
is
created
by
the
Act
of
the
Party
,
and
restrained
by
particular
limitations
without
any
appointment
of
notice
,
there
the
Law
will
not
add
notice
and
make
it
necessary
,
because
the
person
who
made
such
a
disposition
of
his
Estate
might
have
given
it
upon
what
conditions
he
pleased
.
Therefore
it
may
seem
hard
that
this
Estate
should
be
determined
by
the
neglect
or
omission
of
the
Trustees
to
give
notice
of
this
Proviso
;
but
't
is
apparent
that
it
was
the
intent
of
the
Father
it
should
be
so
;
for
by
this
Limitation
the
Estate
is
bound
in
the
Hands
of
an
Infant
;
the
reason
is
,
because
there
is
a
Privity
between
an
Heir
and
an
Ancestor
,
and
therefore
the
Heir
is
bound
to
take
notice
of
such
Conditions
which
his
Ancestor
hath
imposed
on
the
Estate
.
This
Estate
is
determined
by
the
Marriage
of
the
Daughter
with
Mr.
because
there
is
an
express
Limitation
in
the
Deed
,
for
that
very
purpose
she
is
enjoyned
to
marry
a
or
one
who
should
take
upon
him
that
name
,
which
is
still
more
extensive
,
and
she
having
neglected
to
do
the
one
,
and
her
Husband
having
refused
to
do
the
other
,
the
Aunt
in
Remainder
shall
take
advantage
of
this
Non-performance
.
And
't
is
this
Remainder
over
which
makes
it
a
Limitation
for
if
it
had
been
a
Condition
then
the
intent
of
the
Father
had
been
utterly
defeated
;
for
none
but
the
Heir
at
Law
can
enter
for
the
breach
of
a
Condition
,
and
such
was
in
this
Case
The
Proviso
in
this
Deed
depends
upon
another
Sentence
immediately
going
before
,
to
which
it
hath
reference
,
and
then
by
the
express
resolution
in
't
is
a
Limitation
or
Qualification
of
the
Estate
,
and
not
a
Condition
,
which
Estate
is
now
determined
without
Entry
or
Claim
.
It
was
argued
that
in
this
Case
three
things
are
to
be
considered
:
The
Nature
of
the
Proviso
That
Notice
is
absolutely
necessary
That
the
Notice
given
was
not
sufficient
,
being
not
such
as
is
required
by
Law
.
As
to
the
The
very
nature
of
this
Proviso
is
condemned
by
the
Civil
Law
,
and
because
it
works
the
destruction
of
Estates
it
hath
never
been
favoured
at
the
Common
Law
.
All
Conditions
to
restrain
Marriage
generally
are
held
void
by
both
Laws
,
so
likewise
are
such
which
restrain
people
from
marrying
without
the
consent
of
particular
persons
;
because
they
may
impose
such
hard
terms
before
they
give
their
consent
,
that
may
hinder
the
Marriage
it self
,
and
therefore
a
bare
request
of
such
,
without
their
subsequent
assent
,
has
been
always
allowed
to
preserve
the
Estate
.
And
which
was
the
principal
Point
,
Notice
in
this
Case
is
absolutely
necessary
both
by
the
intent
of
the
Father
,
and
by
the
construction
of
the
Law
.
There
are
three
things
of
which
the
Law
makes
an
equal
Interpretation
,
in
which
,
if
the
intention
of
the
Parties
and
of
the
Law
makers
can
be
discerned
,
the
Cases
which
severally
fall
under
the
direction
of
either
shall
be
governed
by
the
intention
without
respect
to
the
disagreeing
words
,
nay
sometimes
the
Law
will
supply
the
defect
of
words
themselves
.
The
Books
are
full
of
Authorites
,
where
Constructions
have
been
made
of
Acts
of
Parliament
according
to
the
intent
of
the
Makers
,
and
not
according
to
the
Letter
of
the
Law
.
As
in
in
the
where
the
Husband
and
Wife
levyed
a
Fine
of
the
Lands
of
the
Wife
,
and
declared
the
Vses
to
their
Heirs
in
Tail
,
the
Remainder
to
the
Heirs
of
the
Wife
,
they
had
Issue
,
and
the
Husband
died
;
the
Widow
married
a
second
Husband
,
and
he
and
his
Wife
join
in
a
second
Fine
,
and
declared
the
Vses
thereof
to
themselves
for
Life
,
the
Remainder
to
the
Husband
and
his
Heirs
for
sixty
years
,
the
Remainder
in
Tail
to
their
Issue
,
the
Remainder
to
the
Heirs
of
the
Wife
;
the
Issue
of
the
first
Husband
entred
supposing
the
Estate
had
been
forfeited
by
the
Statute
of
which
Enacts
Now
this
Case
was
directly
within
the
words
of
the
Statute
,
for
the
which
she
had
discontinued
by
joining
in
the
Fine
with
her
second
Husband
;
but
yet
it
was
adjudged
no
Forfeiture
,
because
it
was
not
within
the
intent
of
the
Statute
to
restrain
Women
to
dispose
of
their
own
Estates
,
but
only
such
as
came
from
the
Husband
.
So
here
Vses
are
in
the
nature
of
private
Laws
,
and
must
be
governed
by
the
like
intention
of
the
Parties
;
now
't
is
not
to
be
supposed
that
the
Father
did
intend
to
disinherit
his
only
Daughter
and
Heir
without
notice
of
this
Settlement
,
therefore
though
he
had
not
appointed
any
person
in
particular
to
give
her
notice
,
yet
it
must
of
necessity
be
presumed
that
his
intention
was
,
that
she
should
have
the
Estate
unless
she
had
refused
upon
notice
to
comply
with
those
Conditions
imposed
upon
her
.
Now
the
Daughter
being
Heir
at
Law
and
so
having
a
good
Title
by
descent
,
if
there
be
any
Conveiance
made
by
her
Ancestor
to
defeat
that
Title
,
and
to
which
she
is
a
Stranger
,
she
ought
by
the
Rules
of
Law
and
Reason
to
have
notice
of
it
,
and
so
is
the
express
Resolution
in
where
the
Devise
and
the
Feoffment
were
both
made
to
the
Heir
at
Law
:
And
the
reason
why
in
notice
was
not
held
necessary
was
,
because
the
Devise
was
to
a
Grandaughter
,
who
was
not
Heir
at
Law
;
for
the
Earl
of
had
three
Sons
then
living
,
and
therefore
the
Parties
whom
it
concerned
had
the
same
means
to
inform
themselves
upon
what
Conditions
they
were
to
have
the
Estate
.
The
notice
here
given
was
not
sufficient
;
for
as
the
Ordinary
himself
in
ought
to
have
given
the
Patron
notice
of
the
Deprivation
before
a
Lapse
should
incurr
,
so
the
Trustees
here
ought
to
give
the
Daughter
notice
of
this
Proviso
before
she
shall
lose
her
Estate
for
Non-performance
of
the
Conditions
on
which
she
should
take
it
,
especially
since
the
notice
she
had
of
this
Proviso
was
not
certain
;
for
't
is
said
she
had
notice
not
to
marry
without
the
consent
of
the
Trustees
,
but
't
is
not
shewed
who
they
are
,
or
how
she
should
apply
her self
to
them
.
Besides
there
is
something
in
this
Proviso
which
the
finding
in
the
Verdict
will
not
supply
,
for
it
may
be
literally
true
that
the
Daughter
married
without
the
consent
of
the
Trustees
,
and
yet
no
breach
of
the
Condition
,
because
the
Proviso
is
to
restrain
her
from
marrying
without
the
consent
of
them
or
their
Heirs
;
now
it
was
not
found
that
the
Feoffees
were
then
living
,
and
if
they
were
dead
their
Consent
cannot
be
required
,
and
she
might
have
the
consent
of
their
Heirs
.
who
was
the
Husband
of
the
Aunt
in
Remainder
,
hath
likewise
forfeited
that
Estate
which
he
hath
,
or
may
have
,
in
right
of
his
Wife
(
if
she
had
any
right
)
by
not
taking
upon
him
the
name
of
for
if
the
Father
would
have
disinherited
his
Daughter
for
Non-performance
of
this
Proviso
he
shall
be
intended
to
disinherit
his
Sister
for
making
frustrate
his
desire
in
the
settlement
of
his
Estate
.
following
Iudgment
was
given
,
That
the
Estate
Tail
was
not
determined
for
want
of
notice
according
to
the
resolution
in
AN
Action
of
was
brought
against
the
Defendant
who
pleaded
the
Statute
of
but
did
not
shew
any
particular
Agreement
,
only
in
general
that
he
was
indebted
to
the
Plaintiff
in
a
Sum
not
exceeding
neither
did
he
seth
forth
when
the
Interest
of
the
Mony
did
commence
,
and
on
what
day
it
became
due
:
And
upon
a
Demurrer
it
was
objected
,
that
this
Plea
was
too
general
,
because
the
Defendant
ought
to
shew
in
particular
what
the
Sum
was
in
which
he
was
indebted
,
and
how
much
the
Plaintiff
took
above
for
if
the
certainty
thereof
did
not
appear
,
there
could
be
no
Fact
applied
to
it
.
But
on
the
other
side
it
was
alledged
that
it
was
not
material
to
shew
the
certain
Sum
which
the
Plaintiff
took
above
and
therefore
not
necessary
to
set
forth
the
particular
Agreement
between
them
;
for
having
pleaded
and
made
a
substantial
Averment
to
bring
his
Case
within
it
,
't
is
well
enough
without
shewing
how
much
he
took
above
six
in
the
hundred
.
And
this
Case
was
compared
to
Debt
against
an
Administrator
,
who
pleaded
in
Bar
a
Iudgment
,
and
that
he
had
fully
administred
,
and
had
not
Assets
and
upon
Demurrer
this
was
held
a
good
Plea
;
for
though
in
strictness
of
Pleading
the
Defendant
ought
to
have
shewed
the
certain
value
of
the
Goods
,
and
not
to
have
said
yet
the
substance
sufficiently
appears
that
he
had
not
more
than
to
satisfie
a
Debt
of
an
for
which
that
Action
was
brought
.
Chief
Iustice
and
the
Court
gave
Iudgment
for
the
Plaintiff
,
because
the
Defendant
ought
to
have
set
forth
the
Agreement
,
and
to
apply
it
to
the
Sum
in
the
Declaration
.
for
the
Mannor
of
Vpon
Not-guilty
pleaded
there
was
a
Trial
at
Bar
by
an
The
Title
of
the
Lessor
of
the
Plaintiff
was
,
That
Esquire
was
seized
in
Fee
of
the
said
Mannor
,
part
in
Demesnes
,
some
part
in
Leases
for
years
with
Rent
reserved
,
and
some
part
in
Services
,
and
being
so
seized
made
a
Feoffment
in
Fee
to
Sir
and
Sir
and
their
Heirs
in
Trust
for
Sir
This
Deed
was
dated
in
and
the
consideration
was
paid
to
there
was
a
Letter
of
Attorny
of
the
same
date
with
the
Deed
and
Livery
and
Seisin
endorsed
.
who
was
of
Council
for
the
Defendant
,
put
the
Plaintiff
to
prove
an
of
the
Tenants
;
for
having
declared
for
a
those
would
not
pass
without
an
and
of
this
Opinion
was
the
whole
Court
,
but
the
Plaintiff
would
not
prove
an
Attornment
.
The
Defendant
made
a
Title
under
the
Marriage
Settlement
of
the
said
who
in
and
then
he
setled
the
said
Mannor
upon
himself
for
life
,
and
upon
his
Issue
in
Tail
Male
,
and
that
the
Defendant
was
the
Heir
in
Tail
.
But
on
the
other
side
it
was
insisted
that
this
Settlement
was
fraudulent
against
the
Purchasor
,
and
that
it
could
not
be
thought
otherwise
,
because
both
the
Original
and
Counterpart
were
found
in
Mr.
Study
after
his
death
;
and
because
he
had
made
Oath
before
a
Master
in
that
there
was
no
incumberance
upon
the
Estate
,
which
was
produced
in
Court
,
but
not
suffered
to
be
read
but
as
a
Note
or
Letter
,
unless
the
Plaintiff
would
produce
a
Witness
to
swear
that
he
was
present
when
the
Oath
was
taken
before
the
Master
.
And
an
Objection
was
made
to
the
Settlement
it self
,
which
recited
,
Edmund
Goodier
Elizabeth
Mees
,
now
in
consideration
thereof
and
of
a
Portion
he
conveyed
the
said
Mannor
to
the
Feoffees
,
to
the
use
of
himself
for
life
,
and
after
his
decease
,
to
the
use
of
the
said
for
life
,
but
doth
not
say
,
so
that
if
she
had
not
married
Mr.
yet
after
his
decease
she
would
have
enjoyed
the
Estate
for
life
.
Vpon
the
whole
matter
the
Iury
found
for
the
Defendant
.
THE
Defendants
were
convicted
for
the
Murder
of
Mr.
and
Mr.
in
a
Duel
,
and
now
pleaded
their
Pardon
,
in
which
there
was
a
Clause
the
Statute
of
which
appoints
him
that
hath
a
Pardon
of
Felony
to
find
Sureties
for
his
Good
Behaviour
before
it
shall
be
allowed
;
and
another
to
the
Statute
of
which
enacts
,
that
if
the
Offence
be
not
specified
in
the
Pardon
it
shall
not
be
allowed
.
Now
the
Word
was
not
in
this
Pardon
,
the
Offence
was
expressed
by
these
general
Words
and
whether
it
did
extend
to
pardon
Murder
was
the
Question
.
the
Clerk
of
the
Crown
,
informed
the
Court
that
one
pleaded
the
like
Pardon
for
Murder
,
but
it
was
held
insufficient
,
and
the
Court
gave
him
time
to
get
his
Pardon
amended
,
which
was
done
likewise
in
this
Case
.
The
Defendants
came
again
on
another
day
,
and
Councel
being
allowed
to
plead
for
them
,
insisted
that
the
Pardon
was
good
,
and
that
the
Murder
was
sufficiently
pardoned
by
these
Words
,
that
it
is
in
the
power
of
the
King
to
pardon
by
general
Words
,
and
his
intent
did
plainly
appear
to
pardon
the
Defendants
.
That
the
murther
of
a
person
is
rightly
expressed
by
though
not
so
properly
as
by
the
word
it self
,
the
omission
of
which
word
will
not
make
the
Pardon
void
.
And
to
prove
this
he
cited
the
Sheriff
of
who
was
indebted
to
the
King
during
the
time
he
was
Sheriff
,
and
was
pardoned
by
the
Name
of
Esquire
(
who
was
the
same
person
)
Afterwards
he
was
charged
in
the
where
he
pleaded
this
Pardon
,
and
it
was
held
good
,
though
he
was
not
named
and
so
not
pardoned
by
the
name
of
his
Office
;
yet
the
Kings
intention
appearing
in
his
Charter
,
and
having
pardoned
him
by
his
right
Name
,
that
was
sufficient
,
and
in
that
Case
the
King
himself
was
concerned
in
point
of
interest
.
The
Books
all
agree
that
before
the
Statute
of
the
King
might
pardon
by
the
word
now
this
Prerogative
being
incident
to
the
Crown
and
inseparable
from
the
person
of
the
King
was
not
designed
to
be
wholly
restrained
by
that
Act
;
for
the
Parliament
only
intended
that
by
specifying
the
Offence
in
the
Pardon
the
King
should
be
rightly
informed
of
the
nature
of
it
,
and
when
he
understands
it
to
be
Murder
he
would
not
grant
a
Pardon
.
But
admitting
his
power
to
be
restrained
by
that
Statute
,
yet
a
is
a
dispensation
of
it
,
and
therefore
this
Pardon
ought
to
be
allowed
.
The
Pardon
was
held
good
by
the
whole
Court
;
And
the
Chief
Justice
,
said
,
that
he
had
proposed
this
Case
to
all
the
Judges
of
and
they
were
all
of
the
same
Opinion
,
and
that
he
remembred
where
a
Pardon
in
general
words
was
allowed
.
Covenant
upon
a
Charter
Party
for
the
Freight
of
a
Ship
.
The
Defendant
pleaded
that
the
Ship
was
loaded
with
and
upon
Demurrer
Judgment
was
given
for
the
Plaintiff
;
for
the
Court
were
all
of
Opinion
,
That
if
the
thing
to
be
done
was
lawful
at
the
time
when
the
Defendant
did
enter
into
the
Covenant
,
though
it
was
afterwards
prohibited
by
Act
of
Parliament
,
yet
the
Covenant
is
binding
.
TRespass
for
breaking
his
Close
of
his
Cattle
Vpon
Not
Guilty
pleaded
the
Plaintiff
had
a
Verdict
,
but
Damages
Whereupon
Mr.
the
Secondary
,
refused
to
tar
full
Costs
,
alledging
it
to
be
within
the
Statute
of
by
which
't
is
Enacted
moved
for
Costs
,
alledging
that
this
Act
doth
not
extend
to
all
trespasses
,
but
only
to
such
where
the
Freehold
of
the
Land
is
in
question
.
If
the
Action
had
been
for
a
Trespass
in
breaking
his
Close
,
and
Damages
given
under
there
might
not
have
been
full
Costs
;
but
here
is
another
Count
for
the
Cattle
,
of
which
the
Defendant
is
found
guilty
,
and
therefore
must
have
his
Costs
.
The
like
Case
was
adjudged
in
this
Court
in
which
was
Trespass
for
breaking
and
flinging
down
Stalls
in
the
Market
place
:
The
Plaintiff
had
a
Verdict
and
damages
,
and
upon
a
debate
whether
he
should
have
full
Costs
,
the
Court
were
of
Opinion
,
that
it
was
not
within
that
Statute
,
because
the
Title
could
not
come
in
question
upon
the
destruction
of
a
Chattle
.
In
the
principal
Case
the
Plaintiff
had
ordinary
Costs
.
THE
Plaintiff
obtained
a
Iudgment
in
an
and
brought
an
Action
of
Debt
upon
that
Iudgment
in
this
Court
for
and
did
not
shew
that
the
was
discharged
,
and
upon
pleaded
,
and
a
Demurrer
to
that
Plea
,
the
Declaration
was
held
to
be
naught
for
that
very
reason
;
for
if
a
Debt
upon
a
Specialty
be
demanded
,
the
Declaration
must
be
for
the
whole
Sum
;
if
for
less
,
you
must
shew
how
the
other
was
satisfied
.
THE
Plaintiff
brought
an
Action
upon
the
Statute
against
Sir
for
that
he
being
Foreman
of
the
Grand
Iury
in
spoke
these
Words
of
the
Plaintiff
,
The
Plaintiff
desired
that
the
Defendant
might
put
in
Special
Bail
,
but
the
Court
would
not
grant
it
,
and
said
it
was
a
discretionary
thing
and
not
to
be
demanded
of
right
:
It
was
denied
to
the
Duke
of
unless
Oath
made
of
the
words
spoken
,
and
therefore
the
Court
ordered
Common
Bail
to
be
filed
.
HE
was
taken
at
in
the
and
brought
over
hither
,
and
now
appeared
in
Custody
at
the
Barr
being
in
the
late
Conspiracy
Clerk
of
the
Crown
read
the
Indictment
upon
which
he
was
outlawed
,
and
the
King
by
his
Attorney
General
consented
that
the
Outlawry
should
be
reversed
(
which
could
not
have
been
done
without
such
consent
)
and
that
he
might
come
to
his
Trial
;
but
he
having
nothing
to
alledge
in
his
defence
,
other
than
that
he
had
made
an
ingenuous
Confession
to
the
King
,
and
hoped
that
he
might
deserve
Mercy
,
the
Court
made
a
Rule
for
his
Execution
to
be
on
following
,
and
did
not
pronounce
any
Sentence
against
him
,
and
he
was
executed
accordingly
.
THE
Defendant
and
others
were
for
not
coming
to
their
Parish
Churches
,
who
pleaded
the
Statute
of
which
inflicts
pecuniary
Penalties
for
not
appearing
upon
the
but
enacts
Now
Mr.
made
these
Objections
The
Defendant
was
excommunicated
for
not
coming
to
his
Parish
Church
,
which
is
not
required
by
this
Statute
;
for
if
he
doth
not
tefuse
to
hear
Divine
Service
in
any
Church
the
Penalties
are
saved
.
The
Statute
of
Additions
requires
that
the
Condition
and
Dwelling
place
of
the
Defendant
shall
be
inserted
,
which
was
not
done
in
this
Case
,
for
they
are
excommunicated
by
the
Names
of
which
last
Addition
of
the
Parish
shall
referr
to
him
only
last
mentioned
,
and
not
to
all
the
rest
;
and
so
it
was
always
ruled
in
Indictments
.
Attorney
General
The
Statute
of
is
grounded
upon
that
of
of
the
Queen
,
which
enjoins
every
person
to
resort
to
his
Parish
Church
,
or
(
upon
lett
thereof
)
to
some
other
,
or
to
forfeit
every
Sunday
and
Holy
day
,
to
be
levied
by
the
Churchwardens
there
for
the
use
of
the
Poor
.
Now
though
the
Parish
is
not
named
in
this
Act
,
yet
the
Law
must
be
interpreted
,
as
it
was
then
.
The
word
goes
to
all
,
so
't
is
in
Informations
for
Riots
.
And
by
Clerk
of
the
Crown
,
t
is
always
so
in
If
the
Defendant
had
pleaded
below
or
here
that
he
had
heard
Divine
Service
in
any
other
Church
,
though
not
in
his
own
Parish
,
the
Penalties
should
not
have
went
out
,
but
being
now
incurred
there
is
no
remedy
,
and
the
word
goes
to
all
preceding
IN
Trespass
,
The
Defendant
pleaded
,
that
before
the
time
of
the
Trespass
supposed
to
be
committed
,
was
seized
in
Fee
of
the
Lands
in
question
,
who
by
a
Writ
was
found
to
be
an
not
having
any
lucid
intervals
by
virtue
whereof
the
King
was
entituled
,
who
granted
the
Custody
to
Sir
who
died
,
and
that
the
Defendant
was
his
Executrix
The
Plaintiff
replyed
and
confessed
the
Ideocy
,
but
that
the
King
granted
the
Custody
of
the
Ideot
to
the
Plaintiff
:
And
upon
this
Replication
the
Defendant
demurred
.
In
this
Case
it
was
agreed
by
the
Council
on
both
sides
,
that
the
King
by
his
Prerogative
hath
the
sole
interest
in
him
of
granting
the
Estate
of
an
Ideot
to
whom
he
pleaseth
without
any
account
,
but
't
is
otherwise
in
case
of
a
Lunatique
;
for
there
the
Grantee
shall
have
nothing
to
his
own
use
,
but
must
put
in
Security
to
account
to
the
Lunatick
,
if
ever
he
comes
to
be
capable
,
or
else
to
his
Executors
or
Administrators
,
But
the
Questions
that
did
arise
in
this
Case
were
:
That
there
was
not
sufficient
Title
found
for
the
King
;
for
by
the
Inquisition
the
Ideot
was
found
to
be
so
which
is
incertain
,
because
before
that
time
she
might
have
and
then
she
cannot
be
an
Ideot
without
being
naturally
so
,
therefore
the
Iury
ought
to
have
found
her
an
Ideot
for
that
is
the
only
matter
which
vests
an
interest
in
the
King
.
But
it
was
answered
and
agreed
by
the
Court
,
that
the
finding
her
to
be
an
Ideot
was
sufficient
without
the
addition
of
any
other
words
,
and
therefore
shall
be
surplusage
;
for
in
this
Case
Words
are
not
so
much
to
be
regarded
as
the
reason
of
the
Law
,
which
doth
not
allow
of
Ideocy
otherwise
than
But
supposing
a
seeming
incertainty
in
this
Office
found
,
yet
it
being
said
generally
,
that
she
was
an
Ideot
,
the
subsequent
words
shall
not
hurt
,
because
the
general
finding
shall
be
taken
in
that
sense
,
which
is
most
for
the
advantage
of
the
King
.
As
for
Example
It
was
found
by
Office
that
a
person
died
seised
of
two
Mannors
,
and
that
he
held
one
of
the
Queen
by
Knights
Service
generally
,
and
the
other
of
a
Mesne
Lord
in
Chivalry
which
is
the
same
Tenure
;
now
it
was
held
that
the
first
general
finding
shall
be
intended
Knights
Service
because
it
was
most
for
the
King's
benefit
,
that
he
might
thereby
be
entituled
to
the
Wardship
of
the
Heir
,
who
was
found
to
be
under
Age.
Whether
the
Grant
of
the
Custody
of
an
Ideot
will
pass
any
Interest
to
the
Executor
of
the
Grantee
,
because
such
a
Grant
carries
a
Trust
with
it
,
and
the
King
may
have
some
knowledge
and
consideration
of
the
Grantee
,
but
not
of
his
Executor
.
To
which
it
was
answered
,
that
here
was
an
interest
coupled
with
a
Trust
,
as
in
the
Case
of
Wardship
formerly
,
which
always
went
to
the
Executor
of
the
Grantee
,
and
which
was
of
greater
consideration
in
the
Law
than
the
feeding
or
clothing
of
an
Ideot
,
and
of
that
Opinion
was
the
Court
,
that
the
King
had
a
good
Title
to
dispose
of
both
the
Ward
and
the
Ideot
,
one
till
he
was
of
Age
,
and
the
other
during
his
Ideocy
.
Iudgment
for
the
Defendant
THE
Testator
was
a
and
being
seised
in
Fee
of
a
Mesuage
,
and
likewise
possessed
of
a
considerable
personal
Estate
made
his
Will
,
in
which
there
was
this
Clause
,
John
Reeves
The
Question
was
,
Whether
by
these
words
the
Devisee
had
an
Estate
for
Life
or
in
Fee
in
the
Mesuage
?
It
was
argued
that
she
had
only
an
Estate
for
life
,
because
the
Words
cannot
be
construed
to
pass
a
Fee
,
for
it
doth
not
appear
what
Estate
was
intended
;
and
Words
in
a
Will
,
which
go
to
disinherit
an
Heir
,
must
be
plain
and
apparent
.
A
Devise
was
in
these
Words
,
and
it
was
adjudged
that
a
Fee
did
not
pass
,
which
is
as
strong
a
Case
as
this
;
for
by
the
word
it
must
be
intended
that
was
in
his
power
to
give
,
which
is
as
comprehensive
as
if
he
had
said
'T
is
true
it
hath
been
adjudged
that
where
a
Man
devised
his
to
his
Wife
,
paying
his
Debts
and
Legacies
,
that
the
word
there
passed
a
Fee
,
because
it
was
for
the
benefit
of
the
Creditors
,
there
being
not
personal
Assets
sufficient
to
pay
all
the
Debts
.
But
that
is
not
found
in
this
Case
,
therefore
the
Word
being
doubtful
,
and
which
will
admit
of
a
double
construction
,
shall
not
be
intended
to
pass
a
Fee
.
The
first
part
of
this
Sentence
consists
in
negative
words
,
and
those
which
are
subsequent
explain
the
intention
of
the
Testator
,
should
take
nothing
by
the
Will
.
The
Word
doth
comprehend
the
whole
in
which
the
Owner
hath
either
an
Interest
or
Property
,
like
a
Release
of
all
Actions
,
which
is
a
good
discharge
as
well
of
real
as
personal
Actions
.
In
common
understanding
it
carries
an
interest
in
the
Land
,
and
then
't
is
the
same
as
if
he
had
devised
all
his
Fee-simple
Estate
.
In
the
Case
of
it
was
adjudged
that
a
Fee-simple
did
not
pass
by
the
Particle
because
it
was
a
Relative
Word
and
had
no
Substantive
joined
with
it
,
and
therefore
it
might
have
been
intended
for
which
incertainty
it
was
held
void
;
yet
Iustice
in
that
Case
said
,
that
it
was
adjudged
,
that
if
a
Man
promise
to
give
to
his
Daughter
in
Marriage
,
that
the
Lands
as
well
as
the
Goods
are
included
.
The
Testator
devised
held
of
such
a
Manor
and
this
being
found
specially
,
the
Question
was
,
Whether
any
more
passed
than
because
he
did
not
mention
what
Estate
he
intended
;
but
it
was
held
that
the
Devisee
had
a
Fee-simple
,
because
the
Words
were
as
comprehensive
,
as
if
he
had
devised
and
by
these
Words
a
Fee-simple
would
pass
.
It
plainly
appears
,
that
the
Testator
intended
nothing
for
therefore
he
can
take
nothing
by
this
Will
,
and
that
the
Devisee
hath
an
Estate
in
Fee-simple
,
for
the
Words
are
sufficient
to
pass
the
same
.
THE
Defendant
was
outlawed
for
High-Treason
,
and
being
taken
at
was
brought
into
and
being
now
at
the
Bar
he
desired
that
he
might
have
leave
of
the
Court
to
reverse
the
Outlawry
,
and
he
tried
by
virtue
of
the
Stature
of
which
Enacts
He
alledged
,
that
it
was
not
a
year
since
he
was
outlawed
,
and
therefore
desired
the
benefit
of
this
Law
.
But
it
was
denied
,
because
he
had
not
himself
according
to
the
Statute
,
but
was
and
brought
before
the
Chief
Iustice
;
Whereupon
a
Rule
was
made
for
his
Execution
at
which
was
done
accordingly
AN
Action
on
the
Case
was
brought
in
the
for
diverting
of
a
Watercourse
.
The
Declaration
was
,
That
the
Defendant
did
break
down
an
ancient
Damm
upon
the
River
by
which
he
did
divert
The
Defendant
pleaded
,
that
before
the
said
Breach
made
,
he
was
seised
in
Fee
of
an
ancient
Mill
,
and
of
six
Acres
of
Land
adjoyning
,
upon
which
the
said
Damm
was
erected
,
to
turn
the
Water
to
his
said
Mill
,
which
Damm
was
always
repaired
and
maintained
by
the
Defendant
,
and
the
Tenants
of
the
said
Land
;
that
his
Mill
was
casually
burnt
,
and
he
not
intending
to
Re-build
it
,
suffered
the
Damm
to
be
broken
down
,
and
converted
the
Timber
to
his
own
use
,
being
upon
his
own
Soil
,
The
Plaintiff
replied
,
that
by
the
breaking
of
the
Damm
the
Water
was
diverted
from
his
Mill
,
The
Defendant
rejoyned
,
and
justified
his
Plea
,
and
Traversed
that
the
Mill
of
the
Plaintiff
was
an
ancient
Mill.
And
upon
a
Demurrer
to
this
Rejoynder
,
Iudgment
was
given
for
the
Plaintiff
,
and
a
Writ
of
Error
now
brought
to
reverse
that
Iudgment
:
and
for
the
Defendant
in
the
Action
,
it
was
argued
.
That
the
Declaration
is
not
good
,
because
the
Plaintiff
had
not
set
forth
that
his
Mill
was
an
ancient
Mill.
Because
he
had
not
entituled
himself
to
the
Watercourse
.
That
the
Plea
was
good
in
Bar
to
this
Action
,
because
the
Defendant
had
sufficiently
justified
having
a
Right
to
the
Land
upon
which
the
Damm
was
erected
,
and
always
repaired
it
.
As
to
the
first
Point
,
it
hath
been
the
constant
course
for
many
years
in
such
Actions
,
to
set
forth
the
of
the
thing
,
either
in
express
terms
,
or
in
words
which
amount
to
it
.
such
an
Action
was
brought
(
of
the
Plaintiff
Which
word
doth
imply
,
that
it
was
an
ancient
Mill
,
for
otherwise
the
Water
could
not
be
accustomed
to
run
to
it
.
the
like
Action
was
brought
wherein
the
Plaintiff
declared
whereof
he
was
seized
,
and
the
Defendant
erected
a
new
Mill
And
eighteen
years
afterwards
was
's
Case
in
this
Court
wherein
the
Plaintiff
shewed
that
he
was
seized
of
two
old
and
ruinous
Fulling
Mills
,
and
that
did
run
from
a
certain
place
to
the
said
Mills
;
and
that
there
had
been
a
certain
Bank
to
keep
the
current
of
the
said
Water
within
its
bounds
,
That
the
Plaintiff
did
pull
down
those
old
Mills
and
erected
two
new
Mills
,
and
the
Defendant
digged
down
the
Bank
,
The
like
Action
happened
it
was
for
diverting
an
ancient
Watercourse
,
to
the
Plaintiffs
Mill.
In
all
which
Cases
tho'
there
are
various
ways
of
declaring
,
yet
they
all
shew
that
the
constant
course
was
to
alledge
that
the
Mills
were
ancient
;
for
't
is
that
which
intitles
the
Party
to
his
Action
.
'T
is
for
this
reason
also
,
that
if
two
Men
have
contiguous
Houses
,
and
one
stops
the
other's
Lights
,
if
they
are
not
an
Action
will
not
lye
for
stopping
of
them
up
.
There
may
be
some
seeming
difference
between
a
Right
to
a
Watercourse
,
and
to
Lights
in
a
Window
;
for
no
Man
can
prescribe
to
Light
such
,
because
't
is
of
common
Right
to
all
Men
,
and
cannot
be
claimed
but
as
affixed
to
a
particular
thing
or
purpose
.
A
Watercourse
may
be
claimed
to
several
purposes
,
but
Water
is
of
as
universal
use
and
benefit
to
Mankind
as
Light
;
and
therefore
no
particular
Man
hath
a
Right
to
either
,
but
as
belonging
to
an
antient
House
,
or
ruunning
to
an
ancient
Mill
,
or
for
some
other
antient
Vse
.
The
Plaintiff
declared
,
that
he
was
seised
in
Fee
of
a
Mill
,
and
had
a
Watercourse
running
thro'
the
Defendants
Lands
to
the
said
Mill
,
and
that
he
stopped
it
up
:
There
was
a
Demurrer
to
this
Declaration
,
and
the
same
Objection
as
now
was
then
taken
to
it
,
that
he
had
not
shewed
that
it
was
an
ancient
Mill.
And
though
the
Court
seemed
to
over-rule
that
Objection
,
yet
no
Iudgment
was
given
.
The
Case
of
was
there
cited
(
which
is
Reported
by
Mr.
and
is
this
That
the
Plaintiff
was
seised
in
Fee
of
certain
Lands
,
and
the
Defendant
had
stopped
a
Watercourse
,
by
which
his
Land
was
drowned
;
it
was
adjudged
that
the
Action
would
lie
for
this
Injury
;
but
that
is
no
Authority
to
support
this
Declaration
.
The
Plaintiff
hath
not
entituled
himself
to
this
Water-course
,
either
by
or
that
the
Water
to
his
Mill
,
for
so
is
the
Pleading
in
's
Case
,
and
in
all
the
other
Cases
before
cited
.
Therefore
the
Plea
in
Bar
is
good
,
the
Defendant
having
sufficiently
justified
his
Right
,
and
the
Plaintiff
having
not
Prescribed
to
it
,
here
can
be
no
Trespass
done
,
and
so
concluded
that
Iudgment
ought
to
be
reversed
.
This
Case
depends
upon
the
Declaration
for
the
Plea
in
Bar
is
only
argumentative
,
't
is
no
direct
answer
to
it
,
and
the
Replication
and
Rejoynder
are
not
material
.
The
Plaintiff
hath
a
good
cause
of
Action
,
for
it
cannot
be
denied
,
but
where
an
injury
is
done
to
another
,
and
Damages
ensue
,
't
is
sufficient
to
maintain
an
Action
of
Trespass
,
or
upon
the
Case
.
'T
is
plain
,
that
an
Injury
was
done
to
the
Plaintiff
,
and
the
Damage
is
as
manifest
,
by
diverting
of
the
Watercourse
,
and
the
loss
of
his
Mill
;
and
the
Fact
is
laid
to
be
The
Defendant
gives
no
reason
why
he
injured
him
,
but
only
that
he
had
no
use
of
the
Water
,
because
his
Mill
was
burnt
.
This
is
an
Action
brought
by
the
Plaintiff
upon
his
Possession
against
a
wrong
doer
,
in
which
it
is
not
necessary
to
be
so
particular
,
as
where
one
prescribes
for
a
Right
.
A
Man
may
have
a
Watercourse
by
Grant
as
well
as
by
Prescription
,
and
in
such
case
be
need
not
set
forth
any
particular
use
of
the
Water
,
as
that
it
ought
to
run
to
his
Mill
;
neither
is
it
absolutely
necessary
to
mention
the
Mill
,
for
that
is
only
to
inform
the
Court
of
the
Damages
.
In
the
Printed
Entries
there
are
many
Forms
of
Declarations
,
without
any
Prescription
,
or
setting
forth
that
the
Mill
was
antient
;
as
where
an
Action
was
brought
against
the
Defendant
,
(
the
Plaintiff
and
this
was
only
upon
the
Possession
.
The
Case
in
is
a
good
Authority
to
support
this
Action
,
for
't
is
as
general
as
this
,
for
diverting
a
Watercourse
and
doth
not
shew
where
it
was
erected
,
or
what
Title
he
had
to
it
.
So
where
the
Action
was
for
disturbing
the
Plaintiff
,
in
collecting
of
Toll
,
and
doth
not
shew
what
Title
he
had
to
it
,
either
by
but
declared
only
that
he
was
seised
in
Fee
of
a
Manor
and
Fair
,
and
held
good
:
And
it
was
the
Opinion
of
my
Lord
That
a
Declaration
for
breaking
down
of
a
Bank
generally
running
to
the
Plaintiffs
Mill
,
was
good
.
The
Authorities
cited
on
the
other
side
,
do
rather
maintain
this
way
of
Pleading
,
than
the
contrary
,
for
those
Cases
are
wherein
the
Plaintiff
declared
,
that
the
Water
to
the
Plaintiffs
Mill
,
time
out
of
mind
,
which
words
are
of
the
same
signification
as
if
he
had
shewed
it
to
be
an
antient
Mill
;
and
that
agrees
in
substance
with
this
Case
,
for
the
Water
cannot
be
diverted
if
the
Mill
was
not
ancient
.
The
word
implies
Antiquity
The
Writ
And
it
was
the
Opinion
of
a
learned
Iudge
,
that
the
words
did
supply
a
Prescription
or
Custom
.
Thus
it
was
in
an
Assise
of
Nusance
,
wherein
the
Plaintiff
set
forth
,
that
he
had
a
Fountain
of
Water
and
that
the
Defendant
and
this
was
held
good
The
Cases
of
stopping
up
of
Lights
and
diverting
of
Water-courses
are
not
parallel
;
the
Prescription
to
Lights
must
be
and
therefore
if
a
Man
will
erect
a
new
House
,
and
a
Stranger
will
stop
the
Lights
;
't
is
an
injury
done
,
and
the
Action
may
be
maintained
upon
the
Possession
.
's
Case
was
grounded
upon
the
Possession
;
for
upon
the
Plaintiff
's
own
shewing
the
Prescription
was
gone
,
because
he
set
forth
,
that
he
had
pulled
down
the
old
Mills
,
and
that
the
Defendant
diverted
the
Water
from
running
to
those
Mills
which
the
Plaintiff
newly
built
.
All
which
prove
that
a
Prescription
goes
to
the
Right
,
but
a
possession
is
sufficient
to
support
an
Action
against
a
in
the
Case
of
a
Common
or
a
Rent
,
which
cannot
pass
without
Deed
,
if
the
Plaintiff
shews
a
he
must
produce
the
Deed
by
which
it
was
granted
;
but
where
he
prescribes
for
a
Way
,
he
may
set
forth
his
Estate
without
shewing
how
he
came
by
it
,
because
't
is
but
a
Conveyance
to
the
Action
,
which
is
grounded
upon
the
disturbance
done
to
the
Possession
.
The
word
implies
Antiquity
,
and
will
amount
to
a
Prescription
;
and
running
to
a
Mill
,
makes
the
Mill
to
be
antient
;
for
if
it
be
newly
erected
there
cannot
be
towards
that
Mill
:
For
which
Reasons
the
Iudgment
in
the
Original
Action
was
affirmed
in
But
the
Chief
Iustice
was
of
Opinion
,
that
if
the
Cause
had
been
tried
upon
such
a
Oeclaration
,
that
the
Plaintiff
ought
to
prove
his
Prescription
,
or
else
he
must
be
Nonsuit
.
ONE
was
Indicted
for
drinking
of
an
Health
to
the
Pious
Memory
of
who
was
Executed
at
for
High
Treason
.
He
was
Fined
and
had
Sentence
to
stand
in
the
Pillory
,
and
was
ordered
to
find
Sureties
for
his
good
Behaviour
.
THE
Defendant
was
a
Non-conformist
Minister
,
and
Indicted
for
High-Treason
,
in
Preaching
of
these
words
,
innuendo
the
People
of
(
innuendo
,
the
People
,
(
innuendo
,
the
King
and
all
his
Loyal
Subjects
)
Vpon
this
Indictment
he
was
arraigned
,
and
pleaded
and
was
Tried
at
Bar
,
and
found
Guilty
of
High
Treason
upon
the
Evidence
of
two
Women
.
And
the
Court
having
assigned
Mr.
and
Mr.
to
be
his
Council
;
they
moved
in
Arrest
of
Iudgment
.
First
,
That
the
Words
discharged
of
the
if
taken
seperate
,
or
altogether
,
have
no
tendency
to
Treason
.
The
first
Paragraph
doth
not
import
any
Crime
;
and
may
be
a
Misdemeanor
,
but
't
is
not
Treason
,
either
by
intendment
of
the
Death
of
the
King
,
or
by
levying
War
against
him
.
The
Crime
seems
to
consist
in
the
next
Words
,
which
are
This
seems
to
stir
up
the
People
to
Rebellion
,
but
as
they
are
placed
in
the
Indictment
,
they
will
not
admit
of
such
a
Construction
,
neither
as
they
have
reference
to
the
words
precedent
,
or
as
they
stand
by
themselves
.
The
words
which
go
before
are
,
'T
is
not
expressed
what
Kings
,
or
when
they
Reigned
,
which
is
very
uncertain
which
word
is
relative
,
and
must
refer
and
then
it
must
be
which
is
the
proper
and
natural
sense
of
the
words
.
But
now
if
the
must
be
incerted
it
must
be
under
some
Authority
of
Law
,
either
to
design
the
person
or
the
thing
,
which
was
not
certain
before
,
that
the
intention
of
the
Party
speaking
,
may
be
more
easily
collected
;
and
this
is
the
most
proper
Office
of
an
It
will
not
change
the
meaning
of
the
words
,
for
that
is
to
make
them
still
more
incertain
.
Now
most
of
the
in
this
Indictment
are
naught
,
because
they
do
not
ascertain
the
subject
matter
.
First
,
by
the
word
(
innuendo
the
People
of
may
be
as
well
intended
any
other
People
,
because
there
was
no
previous
Discourse
of
the
People
of
Then
follow
these
words
(
innuendo
King
the
First
and
Second
which
may
be
as
well
intended
of
King
because
the
words
denote
a
time
past
,
and
therefore
cannot
possibly
intend
the
King
,
of
whom
there
was
no
precedent
Discourse
.
And
the
Rule
is
,
Besides
,
those
words
are
insensible
,
and
indeed
impossible
,
for
we
cannot
have
two
wicked
Kings
it
ought
to
be
successively
Then
to
say
cannot
be
intended
the
Enemies
of
the
King
,
because
the
word
is
of
a
large
sense
;
for
Man
,
by
reason
of
his
Sins
and
Infirmities
hath
many
Enemies
,
and
possibly
such
might
be
intended
.
If
therefore
it
be
doubtful
what
Enemies
were
meant
,
if
it
shall
not
be
in
the
power
of
a
Clerk
,
by
an
to
make
Words
of
another
sense
than
what
they
will
naturally
bear
,
nor
to
help
where
they
are
insensible
,
as
in
this
Case
:
If
there
was
no
precedent
Discourse
either
of
Kings
,
People
,
or
Enemies
,
which
must
be
proved
by
the
Evidence
,
then
is
this
Indictment
naught
,
and
therefore
Iudgment
ought
to
be
arrested
.
Mr.
Attorney
and
Solliciter
'T
is
laid
in
this
Indictment
,
that
the
words
were
spoken
to
stir
up
Rebellion
,
and
to
depose
the
King
,
and
't
is
so
found
by
the
Verdict
of
twelve
Men.
That
which
aggravates
the
offence
is
,
That
it
was
spoken
in
a
publick
Assembly
to
the
People
,
which
must
be
intended
the
People
of
for
to
such
the
Defendant
Preached
,
and
to
them
he
declared
the
power
given
unto
him
by
God
,
to
heal
them
by
Prayer
:
Then
he
tells
them
that
their
King
is
wicked
,
and
having
insinuated
this
Doctrine
into
their
Minds
,
he
then
bids
them
stand
to
their
Principles
in
opposing
and
subduing
wicked
Kings
.
'T
is
objected
that
there
ought
to
have
been
a
precedent
Discourse
of
the
King
,
but
the
Presidents
are
otherwise
.
There
was
an
Indictment
against
the
Lord
for
words
spoken
against
the
King
,
without
setting
forth
any
precedent
Discourse
of
him
.
So
was
my
Lord
's
Case
in
for
that
he
without
an
Avernient
that
the
words
were
spoken
And
in
's
Case
Reported
by
my
Lord
who
was
Indicted
for
High
Treason
,
for
writing
two
Books
,
in
which
were
many
Traiterous
Assertions
,
but
no
Averment
of
any
previous
Discourse
concerning
the
King
,
all
these
Indictments
were
thus
,
such
words
Therefore
the
Indictment
is
good
in
form
if
the
words
therein
contained
amount
to
Treason
;
now
they
do
import
Treason
or
not
,
if
they
do
import
it
,
then
't
is
unnecessary
to
aver
that
they
were
spoken
because
it
cannot
be
intended
to
be
Treason
against
any
other
King
.
If
a
Man
should
say
that
he
would
go
to
and
kill
the
King
;
't
is
not
necessary
to
averr
any
precedent
Discourse
In
Actions
on
the
Case
for
Words
,
there
must
be
an
Averment
of
the
person
,
because
many
men
are
of
the
same
Name
;
but
in
Indictments
the
form
will
govern
the
Case
.
Several
Traitors
have
suffered
Death
in
such
Cases
as
this
at
Bar
,
and
many
learned
Men
in
all
Ages
have
attended
this
Court
,
and
this
Objection
was
never
made
till
now
;
and
therefore
the
Presidents
being
without
this
Averment
where
the
overt
Act
is
by
words
,
Iudgment
was
prayed
against
the
Prisoner
.
Words
may
be
an
overt
Act
;
but
then
they
must
be
so
certain
and
positive
,
as
plainly
to
denote
the
intention
of
the
speaker
.
If
a
Man
should
tell
another
that
he
would
drive
the
King
out
of
there
needs
no
averment
that
such
words
were
spoken
because
they
tend
immediately
to
depose
the
King
;
but
if
he
had
said
that
he
would
go
to
and
destroy
his
Enemies
,
that
is
not
Treason
without
an
Averment
,
Iudgment
was
arrested
THE
Defendant
was
sued
in
the
Spiritual
Court
for
Dilapidations
,
and
pleaded
the
general
Pardon
by
which
&c.
were
pardoned
against
Pledges
in
a
Replevin
brought
by
Pleint
,
Sci.
Fac.
setting
forth
,
that
did
levy
a
Pleint
in
the
Sheriffs
Court
of
for
the
taking
of
three
Baggs
of
Mony
,
in
which
Suit
he
found
if
it
should
be
awarded
That
this
Pleint
was
transmitted
out
of
that
Court
into
the
and
by
Re
falo
removed
into
the
where
the
Plaintiff
declared
as
aforesaid
,
avowed
the
taking
was
Non-suited
and
thereupon
a
was
awarded
to
the
Sheriff
,
who
returned
Then
a
was
brought
against
the
Pledges
upon
the
Statute
of
which
provides
that
where
The
Defendants
appeared
and
prayed
of
the
which
was
returned
by
the
Mayor
and
Sheriffs
only
without
the
Aldermen
.
And
upon
a
Demurrer
the
Question
was
,
Whether
a
will
lie
against
them
by
virtue
of
this
Statute
,
they
being
only
Pledges
in
brought
by
Pleint
without
Writ
This
Case
was
argued
by
Mr.
for
the
Defendants
And
for
the
Defendants
it
was
said
,
that
they
could
not
be
charged
by
this
because
the
Pleint
was
removed
by
and
thereby
the
Plaintiff
had
lost
the
benefit
he
had
against
the
Pledges
in
the
Sheriffs
Court
.
This
Case
was
compared
to
other
Actions
in
inferior
Courts
,
which
if
removed
by
the
Bail
below
are
discharged
of
course
.
By
the
Common
Law
there
were
no
Pledges
of
for
before
this
Statute
the
Sheriff
could
not
make
a
without
the
King
's
Writ
:
Now
he
hath
power
to
take
Pledges
;
but
if
he
will
make
deliverance
of
the
Goods
the
fault
is
still
in
him
;
for
he
may
compel
the
Party
to
bring
a
Writ
,
and
then
the
Pledges
will
be
liable
,
because
it
will
appear
who
they
are
.
And
therefore
it
hath
been
adjudged
,
that
where
a
is
brought
by
Writ
the
Sheriff
cannot
make
deliverance
without
taking
Pledges
,
because
if
the
Plaintiff
should
recover
,
he
hath
a
remedy
against
them
by
but
if
he
recover
upon
a
brought
by
Pleint
the
Iudgment
shall
not
be
avoided
by
assigning
the
want
of
Pledges
for
Error
,
because
in
such
Case
the
Sheriff
is
not
by
Law
obliged
to
take
Pledges
.
is
brought
too
soon
,
for
there
ought
to
go
an
before
the
Return
of
and
then
,
and
not
before
,
the
is
properly
brought
The
Pledges
are
answerable
and
the
is
well
brought
,
and
this
grounded
upon
the
Statute
of
which
directs
Pledges
to
be
taken
before
the
delivery
of
the
Goods
:
It
takes
notice
that
were
sued
in
inferior
Courts
by
the
Tenants
against
their
Lords
,
who
had
distrained
for
Rents
due
for
Services
or
Customs
;
and
that
such
Lords
could
not
have
Iustice
done
in
those
Courts
,
and
therefore
to
remedy
this
mischief
the
Statute
gives
the
Writ
to
remove
the
Pleint
before
the
Iustices
;
and
because
such
Tenants
,
after
they
had
replevied
their
Cattle
,
did
usually
sell
them
,
so
that
a
could
not
be
made
to
the
Party
distraining
,
therefore
it
directs
that
the
Sheriff
shall
take
Pledges
for
returning
the
Beasts
,
if
a
Return
should
be
awarded
,
which
would
be
to
little
purpose
if
such
Pledges
were
not
liable
upon
the
Now
as
to
the
removing
of
the
Pleint
by
that
makes
the
Case
more
strong
in
the
Plaintiffs
behalf
,
because
the
Record
it self
is
removed
;
but
by
an
the
person
is
only
removed
,
and
the
Court
hath
thereby
a
Iurisdiction
over
his
Cause
,
which
the
inferior
Court
hath
lost
,
because
it
hath
lost
his
Person
.
is
not
brought
too
soon
,
as
hath
been
objected
,
for
't
is
in
vain
to
bring
an
after
the
Sheriff
had
returned
't
is
like
the
common
Case
where
a
is
brought
against
the
Bail
and
is
returned
,
after
which
there
never
was
an
And
afterwards
in
following
Iudgment
was
given
that
the
Pledges
are
liable
.
BY
the
Statute
of
Distribution
of
Intestates
Estates
't
is
provided
,
A
Man
died
at
the
time
of
his
death
,
and
but
who
was
an
Infant
,
afterwards
Administration
was
granted
of
the
Fathers
Estate
of
the
Child
who
died
before
the
Age
of
seventeen
.
Then
Administration
was
granted
by
a
peculiar
to
the
next
of
Kin
of
the
Infant
,
and
an
Appeal
was
brought
in
the
by
the
next
of
Kin
of
the
Father
to
revoke
that
Administration
.
In
a
Prohibition
the
Question
was
,
Whether
Administration
of
the
first
Intestate
shall
be
granted
to
the
next
of
Kin
of
the
Father
or
the
Child
?
argued
this
Term
for
the
Plaintiff
in
the
Prohibition
,
That
the
Statute
gives
a
power
to
the
Ordinary
to
take
Bonds
of
such
persons
to
whom
Administration
is
committed
,
the
Forms
of
which
Bonds
are
expressed
in
the
Act
,
and
the
Conditions
are
to
make
a
true
and
perfect
Inventory
,
and
to
exhibit
it
into
the
Registry
.
He
hath
also
a
power
to
distribute
what
remains
after
Debts
,
Funeral
Charges
and
Expences
.
Thus
the
Law
stands
now
Then
as
to
the
Case
at
the
Barr
three
things
are
to
be
considered
:
If
a
Man
dies
intestate
leaving
two
Sons
and
no
Wife
,
each
hath
a
Moiety
of
his
personal
Estate
immediately
vested
in
him
,
so
that
if
one
Brother
should
afterwards
die
intestate
the
other
shall
have
the
whole
.
If
an
Interest
be
vested
in
two
,
then
by
this
Statute
the
like
Interest
is
vested
in
one
,
so
that
if
he
die
Intestate
his
Administrator
shall
have
the
Estate
.
If
so
,
then
the
consequence
will
be
,
that
in
this
case
Administration
of
the
first
Intestate
shall
go
to
the
next
of
Kin
of
the
Infant
.
is
meant
a
Right
to
sue
for
a
share
after
Debts
paid
,
which
every
person
hath
in
a
As
if
a
Man
doth
covenant
with
two
,
that
they
shall
have
such
an
Estate
after
Debts
paid
,
an
in
them
by
this
Covenant
,
and
if
they
die
,
it
goes
to
their
Executors
,
such
also
is
the
of
every
Residuary
Legatee
Now
if
any
of
them
die
before
the
Residue
can
be
distributed
,
the
Wife
or
Children
of
him
so
dying
shall
have
it
.
And
to
make
this
more
clear
it
will
be
necessary
to
consider
how
the
Law
stood
before
the
making
of
this
Act.
At
the
Common
Law
neither
the
Wife
,
Child
or
next
of
Kin
had
any
Right
to
a
Share
of
the
Intestates
Estate
,
but
the
Ordinary
was
to
distribute
it
according
to
his
Conscience
to
pious
Vses
,
and
sometimes
the
Wife
and
Children
might
be
amongst
the
number
of
those
whom
he
appointed
to
receive
it
;
but
the
Law
entrusted
him
with
the
sole
disposition
of
it
.
Afterward
by
the
Statute
of
he
was
bound
to
pay
the
Intestate's
Debts
so
far
as
he
had
Assets
,
which
at
the
Common
Law
he
was
not
bound
to
do
,
and
an
Action
of
Debt
would
then
,
and
not
before
,
lie
against
him
,
if
he
did
alien
the
Goods
and
not
pay
the
Debts
.
Then
the
Statute
of
was
made
,
by
which
he
was
impowred
to
grant
Admstration
to
the
next
of
Kin
,
and
most
lawful
Friend
of
the
Intestate
and
by
this
Statute
the
person
to
whom
Administration
was
committed
might
have
an
Action
to
recover
the
Intestate's
Estate
,
for
at
the
Common
Law
he
had
no
remedy
.
But
then
afterwards
the
Statute
of
and
this
was
the
first
Law
which
gave
any
Interest
to
the
Wife
,
to
whom
Administration
being
once
granted
the
power
of
the
Ordinary
was
determined
,
and
he
could
not
repeal
it
at
his
pleasure
as
he
might
at
the
Common
Law
.
But
after
the
making
of
this
Statute
many
mischiefs
did
still
remain
,
because
the
Administration
being
once
committed
,
the
person
to
whom
it
was
granted
,
had
the
whole
Estate
,
and
the
rest
of
the
Relations
of
the
deceased
were
undone
;
and
therefore
if
his
Children
were
under
Age
,
or
beyond
the
Seas
,
and
a
Stranger
had
got
Administration
,
it
would
have
been
a
Bar
to
them
.
And
thus
it
continued
many
years
,
the
Ordinary
still
making
distribution
as
he
thought
fit
,
taking
only
a
Bond
from
the
person
to
whom
he
granted
Administration
for
the
purposes
aforesaid
,
and
sometimes
to
dispose
the
Surplus
after
Debts
and
Legacies
,
as
he
should
direct
,
and
no
Prohibition
was
granted
to
remedy
these
inconveniences
till
about
the
year
of
King
But
now
by
this
Act
a
good
remedy
is
provided
against
these
mischiefs
,
and
't
is
such
which
takes
away
the
Causes
thereof
,
which
is
,
that
the
Administrator
shall
not
have
the
whole
Estate
,
but
that
a
Distribution
shall
be
made
.
The
Title
of
the
Act
shews
the
meaning
thereof
to
be
for
the
better
Settlement
of
Intestates
Estates
,
and
the
Body
of
it
shews
how
Distribution
shall
be
made
;
so
that
such
Bonds
which
were
usually
given
by
the
Administrator
before
this
Law
to
make
Distribution
,
as
the
Ordinary
should
direct
,
are
now
taken
away
,
and
other
Forms
are
prescribed
;
and
there
can
be
no
remedy
taken
upon
such
new
Bonds
till
the
Ordinary
hath
appointed
the
Distribution
,
so
that
in
effect
this
Act
makes
the
Will
of
a
person
dying
intestate
,
and
tells
what
share
his
Relations
shall
have
;
and
't
is
probable
that
the
Custom
of
might
guide
the
Parliament
in
the
making
of
this
Law
,
which
Custom
distributes
the
Estate
of
a
Freeman
amongst
his
Wife
and
Children
.
This
shews
that
an
Interest
is
vested
in
them
,
which
goes
to
the
Administrator
,
the
consequence
whereof
is
very
considerable
,
for
if
such
Children
should
marry
they
have
a
Security
by
this
Act
that
a
Portion
shall
be
paid
;
and
if
the
Wife
should
take
another
Husband
he
will
be
entituled
to
her
share
,
and
this
may
be
a
means
of
giving
credit
in
the
World
,
when
the
certainty
of
their
Portions
are
so
well
known
and
secured
.
'T
is
such
an
Interest
which
is
known
in
the
Law
and
may
be
compared
to
that
in
Sir
who
sold
Cord
of
Wood
to
a
Man
,
who
assigned
it
to
another
,
and
afterwards
the
Vendor
sold
Cord
to
one
to
be
taken
at
his
Election
,
the
Assignee
of
the
first
person
cutt
Cord
and
carried
it
away
,
thereupon
an
Action
was
brought
and
the
Plaintiff
had
Iudgment
,
because
the
first
Vendee
had
an
Interest
vested
in
him
which
he
might
well
assign
.
This
Case
is
a
plain
proof
that
a
Man
may
have
an
Interest
in
a
Chattle
without
a
Property
,
and
such
an
Interest
which
gives
the
person
a
remedy
to
recover
,
and
where
there
is
a
remedy
there
must
be
a
Right
,
for
they
are
convertibles
.
'T
is
not
a
new
thing
in
the
Law
that
a
contingent
Interest
in
the
Ancestor
shall
survive
to
the
Heir
Case
,
cited
in
as
if
a
Man
be
seized
of
the
Mannor
of
and
covenants
that
when
shall
make
a
Feoffment
to
him
of
the
Mannor
of
then
he
will
stand
seized
of
the
said
Mannor
of
to
the
use
of
the
Covenantee
and
his
Heirs
,
who
dyed
leaving
Issue
an
Heir
,
who
was
then
an
Infant
,
made
a
Feoffment
to
the
Covenantor
accordingly
;
it
was
held
that
no
Right
descended
to
the
Heir
of
the
Covenantee
,
but
only
a
possibility
of
an
Vse
which
might
have
vested
in
the
Ancestor
,
and
therefore
the
Heir
shall
claim
it
by
descent
.
'T
is
like
a
Debt
to
be
paid
at
a
day
to
come
,
which
is
and
though
the
Obligee
cannot
have
an
Action
before
the
day
is
come
,
yet
such
an
Interest
is
vested
in
him
that
he
may
release
it
before
that
day
,
and
so
bar
himself
for
ever
.
Now
if
this
Act
makes
a
Will
it
ought
to
be
construed
as
such
,
and
it
cannot
be
denied
,
that
if
this
Case
had
happened
upon
a
Will
the
Executor
of
the
Son
would
have
a
very
good
Title
.
'T
is
a
weak
Objection
to
affirm
that
this
Law
was
made
to
establish
the
practice
of
the
Ecclesiastical
Courts
,
and
that
't
is
only
explanatory
of
the
Statutes
of
because
't
is
plainly
introductory
of
a
new
Law
,
for
Distribution
is
now
made
otherwise
than
it
was
before
.
An
Interest
is
vested
where
there
is
but
one
Child
.
For
the
better
understanding
of
this
Point
the
Clause
in
the
Act
ought
to
be
considered
,
which
is
,
upon
which
Clause
these
Objections
have
been
made
.
That
't
is
insignificant
,
because
the
Statute
of
gives
the
right
of
Administration
to
the
Child
.
That
Distribution
cannot
be
made
where
there
is
but
one
.
That
this
Clause
ought
to
be
construed
according
to
the
Law
in
the
Spiritual
Courts
.
Now
as
to
the
first
Objection
't
is
true
,
that
before
this
Act
the
Child
had
a
Right
of
Administration
,
but
that
Right
was
only
so
that
if
he
had
died
before
he
had
administred
his
Executor
or
Administrator
could
not
have
it
.
Besides
,
many
inconveniences
did
attend
this
which
are
now
prevented
by
the
vesting
of
an
For
when
the
Right
was
and
the
Administrator
gave
Bond
with
Sureties
to
administer
truly
,
and
the
Ordinary
had
appointed
Distribution
to
be
made
,
the
Administrator
was
bound
to
perform
it
though
not
in
equal
degree
;
and
if
he
died
before
the
Estate
was
got
in
,
it
was
lost
for
ever
.
But
now
by
this
Clause
Distribution
must
be
made
equally
,
one
third
part
of
the
Surplus
to
the
Wife
,
the
rest
by
equal
portions
to
the
Children
,
so
that
what
was
very
incertain
before
,
and
almost
at
the
Will
of
the
Ordinary
,
is
now
reduced
to
a
certainty
;
and
therefore
an
Interest
must
vest
in
such
persons
to
whom
such
equal
Distributions
of
filial
Portions
are
given
.
That
Distribution
cannot
be
made
where
there
is
but
one
Child
.
This
also
is
true
in
propriety
of
Speech
and
taking
the
Word
in
the
strict
sense
But
this
was
never
intended
by
the
Statute
as
may
plainly
appear
upon
the
construction
of
the
whole
;
for
the
Word
doth
comprehend
a
and
more
,
and
the
form
of
the
Bond
directed
by
this
Statute
is
that
the
Administrator
shall
deliver
the
Goods
to
such
person
and
persons
,
which
shews
that
one
is
comprehended
,
and
therefore
in
this
Case
is
no
more
than
and
must
be
so
taken
The
Parliament
never
intended
that
Distribution
should
not
be
made
where
there
is
but
one
Child
,
as
may
be
easily
collected
from
the
reason
of
the
thing
and
the
inconveniences
which
would
ensue
.
If
a
Man
should
die
leaving
a
Wife
and
one
Child
,
the
Wife
would
be
entituled
to
one
third
and
the
to
the
other
two
thirds
of
the
personal
Estate
;
now
if
the
shall
have
two
thirds
being
comprehended
under
the
Word
what
reason
can
be
given
why
he
should
not
have
the
whole
where
there
is
no
Wife
,
which
he
could
not
have
if
the
Word
did
not
comprehend
in
this
Case
If
a
Man
hath
a
personal
Estate
to
the
value
of
and
dieth
leaving
Issue
three
Sons
,
but
hath
in
his
life
time
made
provision
for
the
second
Son
to
the
value
of
the
eldest
Son
dies
intestate
shall
the
youngest
be
totally
excluded
from
the
remaining
because
there
is
none
left
to
have
distribution
,
his
second
Brother
being
preferred
in
the
life
time
of
his
Father
by
an
equal
portion
with
what
remains
.
If
the
Father
hath
a
Son
married
,
and
two
Brothers
,
and
dies
intestate
,
now
if
his
Estate
should
not
be
vested
in
the
Son
,
then
if
he
should
also
die
intestate
,
his
Wife
could
have
nothing
,
but
it
would
go
to
the
Vncles
;
and
this
would
be
a
very
hard
construction
of
this
Law
to
carry
the
Estate
to
the
Vncles
and
their
Executors
from
the
Son
and
his
Administrator
.
But
there
is
a
Case
which
proves
that
a
is
intended
by
the
Word
't
is
between
cited
in
which
was
,
A
Man
being
possessed
of
a
Term
for
years
devised
it
to
his
Wife
for
life
,
and
after
her
death
to
her
unpreferred
,
and
made
her
Executrix
and
died
,
she
married
again
and
had
but
and
after
the
death
of
the
Mother
this
Executory
Devise
was
held
good
to
the
Daughter
,
though
it
was
by
the
Name
of
and
she
enjoyed
the
Term.
That
this
Act
should
be
construed
according
to
the
Spiritual
Law
.
That
cannot
be
,
for
all
Statutes
ought
to
be
expounded
according
to
the
Rules
of
the
Common
Law
and
not
according
to
their
Law
;
for
they
have
no
Law
which
gives
power
to
sue
,
nor
to
distribute
to
the
Wife
or
next
of
Kin
,
but
the
usual
course
was
for
the
Ordinary
to
dispose
of
Intestates
Goods
to
pious
uses
.
Then
admitting
this
to
be
an
Interest
vested
,
the
consequence
will
be
that
it
shall
go
to
the
Administrator
,
and
then
Administration
must
be
granted
where
the
Estate
legally
ought
to
go
.
The
Administration
of
the
Husband
to
the
Goods
of
the
Wife
is
grounded
upon
this
reason
,
because
the
Marriage
is
a
gift
to
him
in
Law
.
It
was
not
the
only
mischief
before
this
Law
that
the
Administrator
run
away
with
the
whole
Estate
;
for
if
a
Man
died
intestate
leaving
but
one
Son
then
beyond
Sea
,
and
Administration
was
granted
to
a
Stranger
,
he
who
had
right
could
not
appeal
after
fourteen
days
,
which
the
Son
could
not
do
at
that
distance
,
and
so
by
this
means
a
wrongful
Administrator
was
entituled
to
the
whole
,
and
he
whose
right
it
was
had
no
remedy
to
recover
at
his
return
.
But
now
this
inconvenience
is
likewise
redressed
by
the
Statute
of
Distributions
,
for
when
the
Son
returns
he
may
put
the
Bond
in
suit
;
and
for
these
reasons
it
was
prayed
that
the
Prohibition
might
stand
.
argued
for
the
Defendant
in
the
substance
of
whose
Argument
was
,
that
though
the
Plaintiff
had
gotten
Administration
,
yet
no
Interest
was
thereby
vested
in
him
,
but
that
the
Appeal
was
proper
;
and
for
this
he
cited
the
Case
of
which
was
Baron
and
Feme
Administratrix
of
her
former
Husband
recover
in
Debt
;
the
Feme
died
,
the
surviving
Husband
brought
a
to
have
Execution
;
and
upon
a
Demurrer
all
the
Court
,
but
agreed
that
the
would
not
lie
for
the
Husband
alone
,
because
it
was
a
debt
demanded
by
the
Administratrix
in
This
Statute
hath
not
wholly
altered
the
Common
Law
in
this
matter
;
it
only
limits
the
Practice
of
Ecclesiastical
Courts
and
makes
provision
for
particular
purposes
,
That
Distribution
shall
be
made
to
the
Wife
and
Children
,
and
their
Children
,
which
is
so
far
introductory
of
a
new
Law
,
but
no
farther
;
so
that
the
Right
of
Administration
is
as
it
was
before
,
and
therefore
must
be
granted
to
the
next
of
Kin
of
the
Father
.
This
Court
hath
no
power
to
grant
a
Prohibition
in
such
a
Case
,
and
if
it
should
,
't
is
the
first
which
ever
was
granted
of
this
kind
,
for
it
ought
not
to
be
determined
here
,
but
in
an
Ecclesiastical
Court
,
which
hath
an
original
Iurisdiction
of
this
Cause
,
and
the
Appeal
is
To
which
Mr.
answered
,
that
the
contrary
was
very
plain
,
for
here
have
been
many
Prohibitions
granted
even
upon
this
very
Act
;
and
the
Question
now
before
the
Court
is
not
concerning
the
manner
of
Distribution
,
but
the
Right
of
Administration
,
whether
any
Interest
is
vested
in
the
Son
or
not
?
'T
is
true
,
the
Estate
in
Law
goes
to
the
Administrator
,
but
the
Interest
and
Right
to
sue
for
and
to
recover
the
Estate
goes
to
the
Son
;
so
that
if
he
should
die
before
he
is
in
actual
possession
,
his
Administrator
shall
have
it
to
pay
Debts
and
to
distribute
,
In
the
Case
of
a
Will
,
if
a
Man
should
devise
his
Estate
to
his
Wife
and
Children
after
Debts
and
Legacies
paid
,
an
Interest
vests
in
those
Children
,
which
doth
not
differ
from
the
Case
at
the
Bar
,
but
that
in
the
one
Case
the
Testator
makes
the
Will
,
and
in
the
other
't
is
made
by
an
Act
of
Parliament
.
Some
Inconveniencies
have
been
already
mentioned
if
the
Law
should
be
otherwise
taken
,
but
there
be
many
more
;
for
if
no
Interest
should
vest
in
the
Child
till
actual
Distribution
he
could
neither
be
trusted
for
his
Education
or
Necessaries
whilst
living
,
and
no
body
would
bury
him
if
he
should
happen
to
die
before
the
year
and
a
day
,
for
the
Funeral
Charges
would
be
lost
.
It
will
likewise
occasion
delays
in
Administrators
to
make
Distribution
in
hopes
of
gain
,
neither
will
any
honest
man
take
an
Administration
upon
himself
,
because
he
can
neither
pay
Mony
safely
,
or
take
a
Release
,
for
if
the
Infant
die
before
distribution
it
is
void
.
But
notwithstanding
these
Reasons
the
Court
gave
Iudgment
in
following
,
That
a
Consultation
should
go
,
the
Chief
Iustice
being
absent
.
were
indicted
upon
the
Coroners
Inquest
for
the
Murder
of
and
upon
this
Indictment
they
were
arraigned
and
tried
at
the
Barr
this
Term.
The
Fact
upon
the
Evidence
appeared
to
be
,
that
the
Prisoners
were
Custom-House
Officers
,
who
suspecting
that
some
would
be
transported
,
went
to
the
Sea-side
in
the
Night
time
,
where
there
happened
an
Afray
,
and
the
Prisoner
was
twice
knocked
down
,
and
recovering
himself
shot
the
deceased
;
they
were
all
acquitted
of
the
Murder
;
and
then
upon
complaint
made
that
was
only
found
guilty
upon
the
Coroners
Enquest
,
two
of
the
said
Iury
were
now
sworn
in
Court
,
who
deposed
,
that
they
upon
the
Coroners
Enquest
found
the
Indictment
against
alone
,
which
Indictment
was
in
English
;
but
that
one
who
was
then
and
who
by
virtue
of
that
Office
was
also
took
the
Indictment
and
told
the
Iury
it
must
be
turn'd
into
Latin
,
which
was
done
,
and
he
then
inserted
the
Names
of
the
two
other
Prisoners
now
at
the
Barr
,
whereupon
the
said
Mr.
was
now
called
,
and
he
appearing
was
bound
in
a
Recognizance
to
answer
this
matter
;
and
the
two
Prisoners
,
who
were
acquitted
,
were
likewise
bound
to
prosecute
him
,
and
the
Iury
Men
were
ordered
to
put
their
in
writing
,
and
swear
it
in
Court
.
An
Information
was
afterwards
exhibited
against
Mr.
which
was
tried
at
the
Barr
in
following
,
and
he
was
found
guilty
;
but
having
spoke
with
the
Prosecutor
in
the
long
Vacation
he
was
only
fined
Nobles
in
IN
a
Prohibition
to
the
Court
of
the
Case
was
The
Plaintiff
was
presented
by
the
Mayor
and
Aldermen
of
to
the
Parish
Church
of
in
the
said
City
,
and
the
Defendant
libelled
against
him
because
he
was
not
when
made
when
he
entred
into
the
Orders
of
a
and
the
Statute
requires
that
none
shall
be
made
a
Minister
or
admitted
to
preach
being
under
that
Age.
The
reason
now
alledged
for
a
Prohibition
was
,
because
this
Matter
was
triable
at
Law
,
and
not
in
the
Spiritual
Court
,
because
if
true
,
a
Temporal
Loss
,
Deprivacion
might
follow
But
the
Court
denied
the
Prohibition
,
and
compared
this
Case
to
that
of
a
Drunkard
or
ill
Liver
,
who
are
usually
punished
in
the
Ecclesiastical
Courts
,
though
a
temporal
loss
may
ensue
;
and
if
Prohibitions
should
be
granted
in
all
Cases
where
Deprivation
is
the
consequence
of
the
Crime
,
it
would
very
much
lessen
the
Practice
of
those
Courts
.
THE
Parishioners
of
St.
gave
this
Man
(
who
had
a
Wife
and
five
Children
)
in
Mony
to
remove
into
another
Parish
,
upon
Condition
that
if
he
returned
in
days
that
he
should
repay
the
Mony
;
he
removed
accordingly
and
stayed
away
by
the
space
of
days
;
the
Parish
to
which
he
removed
obtained
an
Order
upon
an
Appeal
for
his
settlement
in
the
last
Parish
,
where
he
was
lawfully
an
Inhabitant
;
which
Order
being
removed
into
this
Court
and
the
Matter
appearing
thus
upon
they
declared
their
Opinion
only
upon
the
Order
to
remove
,
That
the
Man
had
gained
a
Settlement
in
the
Parish
to
which
he
removed
;
for
he
being
an
Inhabitant
there
for
so
long
time
,
as
was
required
by
Law
to
make
a
Settlement
,
and
not
disturbed
by
the
Officers
,
they
were
remiss
in
their
Duty
,
and
the
Court
would
not
help
their
negligence
.
THE
Defendant
was
convicted
of
publishing
a
Libel
wherein
he
had
accused
the
King
(
when
Duke
of
that
he
had
hired
him
to
kill
the
late
King
And
on
He
was
brought
to
the
Barr
where
he
received
this
Sentence
,
That
he
should
pay
the
Fine
of
That
he
should
stand
twice
in
the
Pillory
,
and
go
about
the
Hall
with
a
Paper
in
his
Har
signifying
his
Crime
;
That
on
next
he
should
be
whipped
from
and
on
following
from
which
Sentence
was
executed
accordingly
;
and
as
he
was
returning
in
a
Coach
on
one
Mr.
a
Barrister
of
asked
him
in
a
jeering
manner
,
whether
he
had
run
his
Heat
that
day
?
who
replied
again
to
him
in
scurrilous
words
;
whereupon
Mr.
run
him
into
the
Eye
with
a
small
Cane
which
he
had
then
in
his
Hand
,
of
which
wound
the
said
Mr.
died
on
the
was
indicted
for
this
Murder
,
and
upon
Not-guilty
pleaded
was
tried
at
the
and
found
guilty
,
and
executed
at
in
the
same
year
HE
was
a
Nonconformist
Minister
,
against
whom
an
Information
was
exhibited
for
writing
of
a
Book
which
he
Entituled
and
the
Crime
alledged
against
him
in
the
said
Information
was
,
That
he
intending
to
bring
the
Protestant
Religion
into
contempt
,
and
likewise
the
the
Bishops
of
did
publish
the
Libel
in
which
was
contained
such
words
,
setting
forth
the
words
.
He
was
convicted
:
And
Mr.
moved
in
arrest
of
Iudgment
,
that
the
words
in
the
Information
and
the
Bishops
therein
mentioned
were
misapplied
to
the
Protestant
Religion
and
the
Bishops
of
by
such
which
could
not
support
this
Charge
against
the
Defendant
.
That
the
which
could
not
be
,
because
the
Information
was
exhibited
in
the
name
of
the
Attorney
General
.
But
the
Court
over-ruled
these
Exceptions
,
and
said
,
that
by
the
word
in
this
Information
no
other
could
be
reasonably
intended
but
the
thereupon
the
Court
fined
him
and
ordered
him
to
give
Security
for
his
Good
Behavior
for
seven
years
.
AN
Action
of
was
brought
by
an
setting
forth
the
Indenture
,
by
which
the
Defendant
,
his
Master
,
had
covenanted
to
find
and
allow
the
Plaintiff
Meat
,
Drink
,
Lodging
and
during
such
a
time
;
and
the
Breach
was
as
general
as
the
Covenant
,
That
he
did
not
find
hind
him
Meat
,
Drink
,
Lodging
,
The
Plaintiff
had
Iudgment
by
and
upon
a
Writ
of
Enquity
brought
entire
Damages
were
given
against
the
Defendant
:
And
in
a
Writ
of
Error
upon
this
Iudgment
the
Error
assigned
was
,
that
the
and
that
entire
Damages
were
given
amongst
other
things
for
and
doth
not
say
for
what
and
a
Case
was
cited
in
the
Point
in
where
the
Iudgment
was
reversed
for
this
very
reason
.
The
Council
argued
that
that
which
is
required
in
an
Action
of
Covenant
is
,
that
there
may
be
such
a
certainty
,
as
the
Defendant
may
plead
a
former
Recovery
in
Barr
if
he
be
sued
again
;
and
therefore
one
need
not
be
so
particular
in
assigning
of
the
Breach
upon
a
Covenant
as
upon
a
Bond
;
for
in
a
Bond
for
performance
of
Covenants
where
there
is
a
Covenant
to
repiar
;
if
it
be
put
in
suit
,
't
is
not
sufficient
to
say
,
but
you
must
shew
how
;
but
in
a
Covenant
't
is
enough
to
say
,
If
in
this
Case
the
Plaintiff
had
shewed
what
necessaries
were
not
provided
for
him
,
it
would
have
made
the
Record
too
long
,
and
therefore
't
is
sufficient
for
him
to
say
,
that
the
Defendant
did
not
find
That
Case
in
has
since
been
adjudged
not
to
be
Law
,
for
many
contrary
Iudgments
have
weakened
the
Authority
of
it
,
That
the
Breach
may
be
assigned
as
general
as
the
Covenant
;
as
where
a
Man
covenanted
that
he
had
a
lawful
Estate
and
Right
to
let
,
the
Breach
assigned
was
that
he
had
no
lawful
Estate
and
Right
to
let
,
and
doth
not
shew
that
the
Lessor
had
not
such
Right
,
or
that
he
was
evicted
,
yet
it
was
held
good
.
In
a
they
formerly
set
out
the
Matter
at
length
,
but
now
of
late
in
that
Action
in
general
Words
and
also
in
hath
been
held
good
,
which
is
as
general
as
this
Case
.
There
are
many
instances
where
Breaches
have
been
generally
assigned
and
held
ill
;
that
in
is
so
,
but
the
later
Opinions
are
otherwise
:
Lease
was
made
of
Tythes
for
three
years
rendring
Rent
at
and
an
Action
of
Debt
was
brought
for
Rent
arrear
for
two
years
:
Vpon
pleaded
the
Plaintiff
had
a
Verdict
,
and
it
was
now
moved
in
Arrest
of
Iudgment
that
the
Declaration
was
too
general
,
for
the
Rent
being
reserved
at
two
Feasts
,
the
Plaintiff
ought
to
have
shewed
at
which
of
those
Feasts
it
was
due
.
But
the
Council
for
the
Plaintiff
said
,
That
it
appears
by
the
Declaration
that
two
years
of
the
three
were
expired
;
so
there
is
but
one
to
come
which
makes
it
certain
enough
.
This
is
helped
by
the
Verdict
,
but
it
had
not
been
good
upon
a
Demurrer
.
Francis
North
George
Jefferies
Edward
Herbert
Thomas
Walcott
Robert
Wright
IN
an
Action
on
the
Case
for
Words
.
The
Plaintiffs
declared
that
they
were
Iustices
of
the
Peace
for
the
County
of
&c.
and
that
the
Defendant
spake
these
scandalous
Words
of
them
.
John
Newton
&
postea
eodem
die
John
Newton
And
afterwards
these
words
were
laid
in
Latin
without
an
There
was
a
Verdict
for
the
Plaintiffs
,
and
entire
damages
,
and
now
Mr.
moved
in
Arrest
of
Iudgment
That
the
words
in
the
Declaration
are
laid
in
Latin
,
without
an
and
without
an
Averment
that
the
hearers
did
understand
Latin
.
'T
is
not
expressly
alledged
,
that
the
Defendant
spoke
those
very
words
,
for
being
laid
something
may
be
omitted
which
may
alter
the
sense
and
meaning
of
them
and
for
this
very
reason
Iudgment
was
staied
,
though
the
Court
held
the
words
to
be
actionable
.
THey
were
Outlawed
for
High-Treason
and
on
day
of
they
were
brought
to
the
Bar
,
and
a
Rule
of
Court
was
made
for
their
Execution
on
The
Chief
Iustice
said
,
that
there
was
no
hardship
in
this
proceeding
to
a
Sentence
upon
an
Outlawry
;
because
those
Malefactors
who
wilfully
flie
from
Iustice
,
and
a
new
Crime
to
their
former
Offence
,
and
therefore
ought
to
have
no
benefit
of
the
Law
;
for
tho'
a
Man
is
Guilty
,
yet
if
he
put
himself
upon
his
Tryal
,
he
may
by
his
submissive
Behaviour
and
shew
of
Repentance
,
incline
the
King
to
mercy
.
In
Felonies
which
are
of
a
lower
nature
than
the
Crimes
for
which
these
persons
are
attainted
,
flight
even
for
an
Hour
,
is
a
forfeiture
of
the
Goods
of
the
Criminal
;
so
likewise
a
Challenge
to
three
Iuries
is
a
defiance
to
Iustice
,
and
if
that
be
so
,
then
certainly
flying
from
it
,
is
both
despising
the
mercy
of
the
King
,
and
contemning
the
Iustice
of
the
Nation
.
They
were
both
Executed
on
AN
Information
was
exhibited
against
the
Defendants
,
setting
forth
,
that
they
,
with
others
,
did
riotously
assemble
themselves
together
,
to
divert
a
Watercourse
,
and
that
they
set
up
a
Bank
in
a
certain
place
,
by
which
the
Water
was
hindred
from
running
to
an
antient
Mill
in
so
plentifull
a
manner
as
formerly
,
Vpon
Not
Guilty
pleaded
,
it
came
to
a
Tryal
,
and
the
Iury
found
that
the
Defendants
were
Guilty
,
and
not
Guilty
And
now
Mr.
moved
in
arrest
of
Iudgment
,
because
that
by
this
Verdict
the
Defendants
were
acquitted
of
the
charge
in
the
Information
,
which
was
the
and
as
for
the
erecting
of
the
Bank
,
an
Action
on
the
Case
would
lie
,
and
the
Iudgment
was
accordingly
arrested
.
THE
Plaintiff
brings
his
Action
against
the
Defendant
,
and
sets
forth
,
That
in
consideration
that
he
would
suffer
the
Defendant
to
enjoy
a
House
and
three
Water-Mills
,
he
promised
to
pay
so
much
yearly
as
they
were
reasonably
worth
;
and
avers
that
they
were
worth
so
much
:
And
upon
a
Demurrer
the
Question
was
,
whether
this
Action
would
lie
for
Rent
.
It
was
argued
for
the
Defendant
that
it
would
not
lie
,
because
it
was
a
real
Contract
.
'T
is
true
,
there
is
a
Case
which
seems
to
be
otherwise
;
't
is
between
which
was
in
consideration
that
the
Plaintiff
would
demise
to
the
Defendant
certain
Lands
for
three
years
,
at
the
Rent
of
by
the
year
,
he
promised
to
pay
it
;
this
was
held
to
be
a
personal
Promise
,
grounded
upon
a
real
Contract
,
and
by
the
Opinion
of
three
Iudges
,
the
Action
did
lie
,
because
there
was
an
express
promise
alledged
,
which
must
also
be
proved
.
But
Iustice
was
of
a
contrary
Opinion
If
a
Lease
be
made
for
years
,
reserving
a
Sum
in
gross
for
Rent
,
and
which
is
made
certain
by
the
Lease
;
in
such
case
an
Action
of
will
lie
for
the
in
arrear
:
But
if
where
no
Sum
certain
is
reserved
,
as
in
this
Case
,
a
will
lie
;
and
no
reason
can
be
given
why
a
Man
may
not
have
such
an
Action
for
the
Rent
of
his
Land
,
as
well
as
for
his
Horse
or
Chamber
:
And
Iudgment
was
given
for
the
Plaintiff
.
THere
was
a
in
the
Spiritual
Court
for
scandalous
Words
,
And
a
Prohibition
was
now
prayed
by
Mr.
because
some
of
the
words
were
actionable
at
Law
,
and
some
punishable
in
the
Spiritual
Court
;
and
therefore
prayed
that
it
might
go
those
words
which
were
actionable
at
Law
.
The
Chief
Iustice
granted
it
,
because
the
words
were
an
entire
Sentence
,
and
spoken
altogether
at
the
same
time
,
and
therefore
if
a
Prohibition
should
not
go
,
it
would
be
a
double
vexation
.
THE
Plaintiff
brought
an
Action
on
the
Case
,
setting
forth
Letters
Patents
of
King
by
which
the
were
granted
to
him
,
excepting
such
Forms
which
belonged
to
the
Custom-House
,
and
which
were
formerly
granted
to
Sir
that
this
Grant
was
to
continue
for
the
space
of
Years
,
and
that
the
Defendant
had
notice
thereof
,
and
had
printed
which
he
laid
to
his
damage
of
the
sum
of
Vpon
Not
Guilty
pleaded
,
the
Iury
found
a
special
Verdict
,
the
substance
of
which
was
,
that
the
Defendant
was
a
and
that
the
Company
of
for
the
space
of
years
last
past
,
before
the
granting
of
these
Letters
Patents
,
had
constantly
printed
and
so
made
a
general
conclusion
.
argued
for
the
Plaintiff
,
and
the
only
Question
was
,
Whether
this
Patent
did
vest
a
sole
Interest
in
the
Plaintiff
,
exclusive
to
all
others
?
In
his
Argument
he
insisted
on
these
Points
.
That
the
King
hath
a
Prerogative
in
Printing
,
and
may
grant
it
Exclusive
to
others
.
That
this
Prerogative
extends
to
the
Case
at
the
Bar.
That
he
hath
such
a
Prerogative
,
't
is
confirm'd
by
constant
Vsage
,
for
such
Grants
have
been
made
by
the
Kings
of
ever
since
Printing
was
invented
:
But
to
instance
in
a
few
,
The
Patent
for
Printing
of
was
granted
to
one
on
the
day
of
in
the
year
of
King
And
when
that
Patent
was
expired
,
another
was
granted
to
and
others
,
on
the
day
of
in
the
year
of
King
a
Patent
was
granted
to
the
Company
of
for
the
sole
Printing
of
for
the
space
of
years
.
And
on
the
the
like
Patent
was
granted
to
for
Life
.
Another
Patent
to
the
Company
of
for
printing
of
&c.
These
and
many
more
of
the
like
nature
,
shew
what
the
constant
usage
hath
been
Now
the
Statute
of
doth
not
reach
to
this
Case
,
because
of
the
Proviso
therein
to
exempt
all
such
Grants
of
sole
Printing
:
and
by
the
Statute
of
King
for
regulating
of
the
Press
't
is
Enacted
And
upon
the
breaches
of
these
Statutes
several
Iudgments
have
been
given
.
in
this
Court
't
is
true
,
the
Iudgment
was
against
the
Plaintiff
;
but
upon
a
Writ
of
Error
brought
in
Parliament
that
Iudgment
was
reversed
.
The
same
Term
there
was
a
Iudgment
given
upon
a
special
Verdict
in
the
for
the
Plaintiffs
who
were
the
Company
of
for
Printing
of
And
they
obtained
the
like
Iudgment
against
for
Printing
of
Now
to
apply
this
to
the
principal
Case
;
't
is
to
be
considered
,
that
these
Books
for
which
the
sole
Printing
was
so
claimed
,
were
of
a
publick
nature
and
importance
,
relating
to
the
good
and
benefit
of
the
Subjects
;
and
so
likewise
are
Blank
Bonds
,
for
there
may
be
false
and
vitious
Impressions
,
to
the
ruin
and
destruction
of
many
innocent
people
.
And
as
a
farther
Argument
that
the
King
hath
this
Prerogative
,
't
is
likewise
to
be
considered
,
that
where
no
individual
person
can
claim
a
Property
in
a
thing
there
the
King
hath
a
Right
vested
in
him
by
Law
;
and
it
cannot
be
pretended
that
any
particular
person
hath
a
Right
to
Print
those
Bonds
,
therefore
the
finding
that
such
were
printed
by
the
Company
for
above
years
,
is
immaterial
;
because
there
being
an
inherent
Prerogative
in
the
King
,
whenever
he
exerts
it
,
all
other
persons
are
bound
up
who
were
at
liberty
before
.
To
prove
which
,
the
Iudgment
in
the
Case
of
the
Company
is
express
in
point
;
for
before
that
Patent
the
subject
had
liberty
to
Trade
to
those
places
prohibited
by
that
Grant
;
but
afterwards
they
were
restrained
by
that
Grant
.
Neither
is
this
in
the
nature
of
a
Monopoly
't
is
not
like
that
of
the
sole
Grant
of
making
which
hath
been
adjudged
void
,
and
with
great
reason
,
because
that
Grant
reached
to
prohibit
a
whole
Trade
,
and
therefore
differs
from
this
Case
;
for
the
Defendant
may
print
other
Instruments
or
Books
,
and
exercise
his
Trade
in
some
other
lawful
and
profitable
Commodities
;
and
so
might
the
Merchants
in
the
Case
of
the
Company
,
for
they
were
restrained
by
the
Patent
as
to
particular
places
,
but
might
Trade
to
any
other
part
of
the
World
.
Neither
will
the
Subjects
in
general
receive
any
prejudice
by
this
or
such
like
Grants
;
for
if
the
Patentees
make
ill
use
of
their
Priviledges
,
tho'
it
cannot
be
properly
called
an
Office
,
yet
't
is
a
Trust
,
and
a
will
lie
to
repeal
their
Grants
.
It
was
argued
by
the
Councel
for
the
Defendant
,
That
the
Verdict
having
found
that
the
Company
of
had
used
to
print
those
Bonds
for
above
years
before
the
making
of
this
Grant
:
the
Question
will
be
,
Whether
they
are
now
divested
of
a
Right
so
long
enjoyed
?
And
as
to
that
,
't
is
not
a
new
thing
to
object
,
That
notwithstanding
such
Grants
,
yet
other
persons
have
insisted
on
a
Right
to
Print
,
and
have
printed
accordingly
.
Thus
the
sole
Printing
of
was
granted
to
one
yet
the
Reports
of
Iustice
and
my
Lord
Chief
Iustice
were
printed
without
the
direction
of
the
Patentees
.
Printing
,
as
't
is
a
manual
Occupation
,
makes
no
alteration
in
this
Case
,
for
the
King
hath
as
great
a
Prerogative
in
Writing
any
thing
that
is
of
a
publick
Nature
,
as
he
hath
in
Printing
of
it
.
Now
considering
Printing
as
an
Art
exclusive
from
the
thing
printed
,
this
Patent
is
not
good
:
For
if
a
Man
invent
a
new
Art
,
and
another
should
learn
it
before
the
Inventor
can
obtain
a
Patent
,
if
afterwards
granted
't
is
void
.
Then
consider
it
in
relation
to
the
thing
printed
,
which
in
this
Case
are
't
is
not
a
new
Invention
,
because
the
Company
of
have
printed
such
above
years
,
and
for
that
reason
this
Patent
is
void
;
for
where
the
Invention
is
not
New
,
there
Trade
shall
not
be
restrained
.
No
Man
can
receive
any
prejudice
by
the
printing
of
such
Bonds
,
for
they
are
of
no
Vse
till
filled
up
;
't
is
only
a
bare
Manufacture
of
setting
of
so
many
Letters
together
:
but
filling
up
the
Blanks
makes
them
of
another
nature
.
Grants
of
things
of
less
moment
have
been
adjudged
as
a
Patent
for
the
sole
making
of
all
Bills
,
Pleas
and
Briefs
in
the
Council
of
for
by
the
same
reason
a
like
Patent
might
be
granted
to
make
all
Declarations
in
the
Courts
of
The
King
hath
a
Prerogative
to
Grant
the
sole
Printing
to
a
particular
person
;
all
the
Cases
cited
for
the
Plaintiff
do
not
reach
the
reason
of
this
Case
;
for
there
is
a
difference
between
things
of
a
publick
Vse
and
those
which
are
publick
in
their
Nature
;
even
have
been
used
to
ill
purposes
,
as
to
foretel
future
Events
;
yet
they
are
of
publick
Vse
to
shew
the
Feasts
and
Fasts
of
the
Church
.
The
Court
enclined
that
the
Patent
was
not
good
.
Motion
was
made
in
arrest
of
Iudgment
,
for
that
the
when
the
Assises
were
to
be
held
,
and
were
left
out
of
the
and
so
a
mis-tryal
:
But
the
Court
were
of
another
Opinion
,
for
if
there
had
been
no
Distringas
the
Tryal
had
been
good
;
because
they
is
the
Warrant
to
try
the
Cause
,
which
was
right
,
and
therefore
the
was
ordered
to
be
amended
by
the
Roll.
'T
IS
Enacted
by
the
Statute
And
by
the
Statute
of
King
The
Defendant
was
indicted
at
the
Quarter-Sessions
in
for
using
in
the
Church
than
mentioned
in
the
said
Book
,
and
concludes
He
was
found
Guilty
,
and
fined
Marks
;
and
upon
a
Writ
of
Error
brought
Mr.
and
Mr.
argued
for
the
Plaintiff
in
Error
,
that
this
Indictment
was
not
warranted
by
any
Law
;
and
the
Verdict
shall
not
help
in
the
case
of
an
Indictment
,
for
all
the
Statutes
of
have
left
them
as
they
were
before
.
Now
the
Fact
,
as
't
is
said
in
this
Indictment
,
may
be
no
offence
,
because
to
use
Prayers
than
enjoyn'd
by
the
Book
of
Common-Prayer
,
may
be
upon
an
extraordinary
occasion
,
and
so
no
Crime
.
But
if
this
should
not
be
allowed
,
the
Iustices
of
Peace
have
not
power
in
their
Sessions
to
enquire
into
this
matter
,
or
if
they
had
power
,
they
could
not
give
such
a
Iudgment
,
because
the
punishment
is
directed
by
the
Statute
;
and
of
this
Opinion
was
the
whole
Court
.
The
Chief
Iustice
said
,
that
the
Statute
of
the
could
have
no
influence
upon
this
Case
,
because
another
Form
is
now
enjoyned
by
later
Statutes
;
but
admitted
that
Offences
against
that
Statute
were
enquitable
by
the
Iustices
.
The
Indictment
ought
to
have
alledged
that
the
Defendant
used
other
Forms
and
Prayers
instead
of
those
enjoyned
,
which
were
neglected
by
him
;
for
otherwise
every
Parson
may
be
indicted
that
useth
prayers
before
his
Sermon
,
other
than
such
which
are
required
by
the
Book
of
Common-Prayer
.
DEbt
upon
a
Bond
for
the
performance
of
Covenants
in
certain
Articles
of
Agreement
,
in
which
it
was
recited
,
That
whereas
the
now
Defendant
had
found
out
a
Mystery
in
colouring
Stuffs
,
and
had
entred
into
a
Partnership
with
the
Plaintiff
for
the
term
of
seven
Years
;
he
did
thereupon
Covenant
with
him
,
that
he
would
not
procure
any
person
to
obtain
Letters
Patents
within
that
Term
to
exercise
that
Mystery
alone
.
The
Defendant
pleaded
that
he
did
not
procure
any
person
to
obtain
Letters
Patents
,
The
Plaintiff
replied
and
assigned
for
breach
,
that
the
Defendant
did
within
that
term
procure
Letters
Patents
for
another
person
to
use
this
Mystery
alone
,
for
a
certain
time
.
And
upon
a
Demurrer
to
the
Replication
,
these
Exceptions
were
taken
.
That
the
Plaintiff
hath
not
set
forth
what
Term
is
contained
in
the
Letters
Patents
.
That
he
had
pleaded
both
Record
and
Fact
together
;
for
the
procuring
is
the
Fact
,
and
the
Letters
Patents
are
the
Record
,
and
then
he
ought
not
to
have
concluded
to
the
Country
To
which
it
was
answered
,
That
the
Plaintiff
was
a
Stranger
to
the
Term
contained
in
the
Letters
Patents
,
and
therefore
could
not
possibly
shew
it
;
but
if
he
hath
assigned
a
full
breach
,
't
is
well
enough
.
Then
as
to
the
other
Exception
,
the
pleading
of
the
Letters
Patents
here
,
is
not
matter
of
Record
;
here
is
a
plain
negative
and
affirmative
upon
which
the
Issue
is
joyned
,
and
therefore
ought
to
conclude
,
There
is
a
Covenant
that
the
Defendant
shall
not
procure
Letters
Patents
to
hinder
the
Plaintiff
within
the
seven
Years
of
the
Partnership
:
Now
this
must
be
the
matter
upon
which
the
breach
ariseth
,
and
not
the
Letters
Patents
;
so
that
it
had
been
very
improper
to
conclude
Iudgment
for
the
Plaintiff
THE
Defendant
was
Melius
inquireddum
and
the
Coroners
Inquest
found
him
a
Lunatick
,
and
now
Mr.
moved
for
a
but
it
was
denied
,
because
there
was
no
defect
in
the
Inquisition
;
but
the
Court
told
him
,
that
if
he
could
produce
an
Affidavit
that
the
Iury
did
not
go
according
to
their
Evidence
,
or
of
any
indirect
Proceedings
of
the
Coroner
,
then
they
would
grant
it
:
But
it
was
afterwards
quashed
,
because
they
had
omitted
the
year
of
the
King
.
upon
the
Demise
of
of
certain
Lands
in
The
Iury
found
this
Special
Verdict
following
,
was
seised
in
Fee
of
the
Lands
in
question
,
who
by
his
last
Will
,
dated
in
the
year
devised
it
to
for
Life
;
Remainder
to
her
first
Son
,
and
to
the
Heirs
of
the
Body
of
such
first
Son
,
and
for
default
of
such
Issue
to
his
Cousin
with
several
Remainders
over
.
And
in
default
of
such
Issue
,
to
and
to
her
Heirs
(
who
was
the
Lessor
of
the
Plaintiff
;
)
That
before
the
sealing
and
publishing
of
this
Will
,
he
made
this
Dorothy
Hopkins
the
Heirs
Male
of
her
Body
had
Issue
who
had
Issue
who
had
Issue
a
Daughter
,
now
the
Defendant
.
The
Question
was
,
Whether
the
Son
of
did
take
an
by
this
Will
,
to
him
and
to
the
Heirs
of
his
Body
or
an
This
Case
was
argued
in
And
in
the
same
Term
a
year
afterwards
,
by
Council
on
both
sides
.
Those
who
argued
for
the
Plaintiff
held
,
that
the
Son
had
an
Estate
in
Tail
Male
;
and
this
seems
plain
by
the
intention
of
the
Testator
,
that
if
had
Issue
Daughters
,
they
should
have
no
benefit
,
for
no
provision
is
made
for
any
such
by
the
Will
;
and
therefore
the
Daughter
of
her
Son
can
have
no
Estate
,
who
is
more
remote
to
the
Testator
.
This
is
like
the
Case
of
Conveyances
,
wherein
the
explains
the
generality
of
the
precedent
words
;
as
if
Lands
be
given
to
Husband
and
Wife
,
and
to
their
Heirs
,
to
them
and
the
Heirs
of
their
Bodies
,
Remainder
to
them
and
the
Survivor
,
to
hold
of
the
chief
Lord
,
with
Waranty
to
them
and
their
Heirs
:
this
is
an
Estate
Tail
,
with
a
Feé
expectant
.
So
it
is
here
,
tho'
the
first
words
in
the
Will
extend
to
Heirs
which
is
general
;
yet
in
the
't
is
particular
to
Heirs
Males
,
and
the
words
Heirs
and
Issues
are
of
the
same
signification
in
a
Will
.
is
a
confirmation
of
the
Will
,
and
the
construction
which
hath
been
made
of
it
,
is
not
only
inconsistent
with
the
Rules
of
Law
,
but
contrary
to
the
intent
of
the
Testator
,
and
against
the
express
words
of
his
Will
.
Cases
upon
Wills
are
different
from
those
which
arise
upon
Deeds
,
because
in
Conveyances
subsequent
words
may
be
explanatory
of
the
former
;
but
in
Wills
the
first
words
of
the
Testator
do
usually
guide
those
which
follow
.
As
if
Land
be
devised
for
Life
,
Remainder
to
and
the
Heirs
of
his
Body
,
and
if
it
happen
that
he
dye
without
Heirs
not
saying
the
Remainder
over
in
Tail
;
this
was
held
not
to
be
a
general
Tail
,
but
an
Estate
in
Tail
Male
,
therefore
the
Daughter
of
could
not
inherit
Now
to
construe
this
to
be
an
Estate
Tail
Male
,
doth
not
only
alter
the
Estate
of
the
Sons
of
but
of
the
Issue
of
and
nothing
is
mentioned
in
this
of
the
Limitation
over
to
so
that
the
whole
Will
is
altered
by
it
.
But
this
cannot
enlarge
the
Estate
of
because
't
is
inconsistent
with
the
intention
of
the
Testator
,
who
gave
her
only
an
Estate
for
Life
by
the
Will
;
but
if
she
should
have
an
Estate
Tail
,
she
might
by
Fine
and
Recovery
bar
it
,
and
so
alien
it
contrary
to
his
express
words
.
Besides
,
there
is
no
Estate
limited
to
by
this
and
she
having
an
express
Estate
for
Life
,
devised
to
her
by
the
Will
,
it
shall
never
be
enlarged
by
such
doubtful
words
which
follow
.
As
where
a
Man
had
Acres
of
Land
called
by
a
particular
Name
,
and
usually
occupied
with
a
House
,
which
House
he
lett
to
Acres
,
parcel
of
that
Land
,
and
then
devised
the
House
and
all
the
Lands
called
by
that
particular
Name
,
to
his
Wife
;
Adjudged
she
should
only
have
the
House
and
the
Acres
,
and
that
the
Devise
shall
not
be
extended
by
implication
to
the
other
sixty
Acres
.
So
that
to
make
the
design
of
this
Will
and
to
be
consistent
,
the
latter
words
must
be
construed
only
to
illustrate
the
meaning
of
the
Testator
in
the
former
Paragraph
of
the
Will
,
and
must
be
taken
as
a
farther
declaration
of
his
intention
,
that
the
Heirs
Males
mentioned
in
the
is
only
a
description
of
the
Persons
named
in
the
Will
.
The
Law
doth
usually
regard
the
intention
of
the
Testator
,
and
will
not
imply
any
contradictions
in
his
Bequests
.
The
Court
was
of
Opinion
that
it
was
a
plain
Case
for
in
the
Limitation
't
is
clear
that
't
is
a
general
Tail
;
and
it
doth
not
follow
that
the
Testator
did
not
design
any
thing
for
his
Grandaughters
,
because
no
provision
was
made
for
Daughters
:
For
where
an
Estate
is
entailed
upon
the
Heirs
of
a
Man's
Body
,
if
he
hath
a
Son
and
a
Daughter
,
and
the
Son
hath
Issue
a
Daughter
,
the
Estate
will
go
to
her
,
and
not
to
the
Aunt
.
Now
this
doth
not
come
to
make
any
alteration
in
the
Limitation
,
because
it
directs
that
the
Estate
shall
go
according
to
the
true
intent
and
meaning
of
the
Will
,
and
is
rather
like
a
than
an
in
a
Deed.
And
therefore
Iudgment
was
given
accordingly
for
the
Defendant
.
day
of
there
was
a
Trial
at
the
Barr
by
a
Iury
in
The
Case
was
thus
The
Plaintiff
claimed
the
Lands
by
virtue
of
the
Statute
of
by
which
't
is
enacted
being
seised
in
Fee
of
the
Lands
in
question
to
the
value
of
had
Issue
a
Son
and
four
Daughters
;
the
Son
had
Issue
his
only
Daughter
,
who
was
married
to
the
Defendant
her
Father
died
in
the
time
of
her
Grandfather
,
and
her
Mother
fearing
that
this
Daughter
might
be
stoln
from
her
,
applies
her self
to
my
Lady
and
entreats
her
to
take
this
Daughter
into
her
House
,
which
she
did
accordingly
.
My
Lady
had
a
Son
then
in
she
sent
for
him
and
married
him
to
this
she
being
then
under
the
Age
of
sixteen
years
,
without
the
Consent
of
her
Mother
,
who
was
her
Guardian
.
The
Question
was
whether
this
was
a
Forfeiture
of
her
Estate
during
Life
.
It
was
proved
at
the
Trial
that
the
Mother
had
made
a
Bargain
with
the
Lessor
of
the
Plaintiff
,
that
in
case
he
recovered
she
should
have
and
the
Chirds
of
the
Estate
,
and
therefore
she
was
not
admitted
to
be
a
Witness
.
The
Plaintiff
could
not
prove
any
thing
to
make
a
Forfeiture
,
and
therefore
was
nonsuited
.
The
Chief
Iustice
said
,
that
the
Statute
was
made
to
prevent
Children
from
being
seduced
from
their
Parents
or
Guardians
by
flattering
or
enticing
Words
,
Promises
or
Gifts
,
and
married
in
a
secret
way
to
their
disparagement
;
but
that
no
such
thing
appeared
in
this
Case
,
for
Dr.
proved
the
Marriage
to
be
at
St.
Church
in
a
Canonical
Hour
,
and
that
many
People
were
present
,
and
that
the
Church
Doors
were
open
whilst
he
married
them
.
BY
the
Statute
of
't
is
Enacted
In
this
Case
Issue
was
joined
,
and
the
Steward
refused
to
allow
the
and
the
Cause
was
tried
,
but
not
before
an
as
is
directed
by
the
Statute
.
The
Steward
ought
to
return
the
and
they
having
proceeded
to
try
the
Cause
no
being
Steward
,
let
an
Attachment
go
.
THE
Plaintiff
being
a
Merchant
brought
an
Action
upon
a
Bill
of
Exchange
,
setting
forth
the
Custom
of
Merchants
,
and
that
were
ancient
Cities
,
and
that
there
was
a
Custom
amongst
Merchants
,
that
if
any
person
living
in
draw
a
Bill
upon
another
in
and
if
this
Bill
be
accepted
and
endorsed
,
the
first
Endorser
is
liable
to
the
payment
.
That
one
drew
a
Bill
of
upon
Mr.
paiable
to
the
Defendant
or
Order
.
endorsed
this
Bill
to
or
Order
,
and
endorsed
it
to
The
Mony
not
being
paid
brings
his
Action
against
and
recovers
,
but
did
not
take
out
Execution
.
Afterwards
he
sued
Mr.
who
was
the
first
Endorser
,
and
he
pleads
the
first
Recovery
against
in
barr
to
this
Action
,
and
avers
that
it
was
for
the
same
Bill
,
and
that
they
were
the
same
Parties
.
To
this
Plea
the
Plaintiff
demurred
,
and
the
Defendant
joyned
in
the
Demurrer
.
argued
that
it
was
a
good
Barr
,
because
the
Plaintiff
had
his
Election
to
bring
his
Action
against
either
of
the
Endorsers
or
against
the
Drawer
,
but
not
against
all
;
and
that
he
had
now
determined
his
Election
by
suing
the
Drawer
,
and
shall
not
go
back
again
though
he
never
have
Execution
;
for
this
is
not
in
the
nature
of
a
joint
Action
which
may
be
brought
against
all
.
'T
is
true
that
it
may
he
made
joint
or
several
by
the
Plaintiff
;
but
when
he
has
made
his
choice
by
suing
of
one
he
shall
never
sue
the
rest
,
because
the
Action
sounds
in
Damages
,
which
are
uncertain
before
the
Iudgment
,
but
afterwards
are
made
certain
,
and
is
as
effectual
in
Law
as
a
Release
.
As
in
the
Defendant
pleaded
that
at
another
time
the
Plaintiff
had
recovered
against
another
person
for
the
same
Goods
so
much
Damages
,
and
had
the
Defendant
in
Execution
;
and
upon
a
Demurrer
this
was
held
a
good
Plea
;
for
though
in
that
Case
it
was
objected
,
that
a
Iudgment
and
Execution
was
no
satisfaction
unless
the
Mony
was
paid
,
yet
it
was
adjudged
that
the
cause
of
Action
being
against
several
,
for
which
Damages
were
to
be
recovered
;
and
because
a
Sum
certain
was
recovered
against
one
,
that
is
a
good
discharge
against
all
the
other
,
but
't
is
otherwise
in
Debt
,
because
each
is
liable
to
the
entire
Sum.
Chief
Iustice
.
If
the
Plaintiff
had
accepted
of
a
Bond
from
the
first
Drawer
in
satisfaction
of
this
Mony
,
it
had
been
a
good
Barr
to
any
Action
which
might
have
been
brought
against
the
other
Indorsers
for
the
same
;
and
as
this
Case
is
the
Drawer
is
still
liable
,
and
if
he
fail
in
payment
,
the
first
Endorser
is
chargeable
,
because
if
he
make
Endorsement
upon
a
bad
Bill
,
't
is
Equity
and
good
Conscience
that
the
Endorsee
may
resort
to
him
to
make
it
good
:
But
the
other
Iustices
being
against
the
Opinion
of
the
Chief
Iustice
,
Iudgment
was
given
for
the
Defendant
.
DEBT
upon
a
Bond.
The
Condition
was
,
That
if
shall
appear
such
a
day
that
then
The
Defendant
pleaded
,
that
after
the
day
of
the
day
of
the
appearance
,
he
did
render
himself
to
the
Officer
in
discharge
of
this
Bond
,
and
to
this
the
Plaintiff
demurred
.
for
the
Defendant
admitted
that
if
a
be
brought
against
the
Bail
upon
a
Writ
of
Error
,
who
plead
that
after
the
Recognizance
,
and
before
the
Iudgment
against
the
Principal
affirmed
,
he
rendred
himself
to
the
Marshal
in
discharge
of
his
Bail
,
that
this
is
not
a
good
Plea
,
but
that
the
Sureties
are
still
liable
,
because
by
the
Statute
they
are
not
only
liable
to
render
his
Body
but
to
pay
the
Debt
recovered
.
But
if
a
Iudgment
be
had
in
this
Court
,
and
a
Writ
of
Error
brought
in
the
and
pending
that
Writ
of
Error
the
Principal
is
rendred
,
the
Bail
in
the
Action
are
thereby
discharged
.
It
was
argued
on
the
other
side
,
that
this
is
not
the
like
Case
of
Bail
upon
a
Writ
of
Error
,
for
the
Condition
of
a
Recognizance
and
that
of
a
Bond
for
Appearance
are
different
in
their
nature
;
the
one
is
barely
that
the
Party
shall
appear
on
such
a
day
,
the
other
is
that
he
shall
not
only
appear
and
render
his
Body
to
Prison
,
but
the
Bail
likewise
do
undertake
to
pay
the
Debt
,
if
Iudgment
should
be
against
the
Principal
.
Now
where
the
Condition
is
only
for
an
Appearance
at
a
day
if
the
Party
render
himself
either
before
or
after
the
day
,
't
is
not
good
.
Chief
Iustice
.
If
the
Party
render
himself
to
the
Officer
before
the
day
of
Appearance
he
is
to
see
that
he
appear
at
the
day
,
either
by
keeping
of
him
in
Custody
or
letting
of
him
to
Bail
,
the
end
of
the
Arrest
is
to
have
his
Body
here
.
If
he
had
not
been
bailed
then
he
had
still
remained
in
Custody
,
and
the
Plaintiff
would
have
his
proper
remedy
;
but
being
once
let
to
Bail
,
and
not
appearing
in
Court
according
to
the
Condition
of
the
Bond
,
that
seems
to
be
the
fault
of
the
Defendant
who
had
his
Body
before
the
day
of
Appearance
.
Iudgment
for
the
Defendant
BY
the
Statute
of
Queen
't
is
Enacted
was
excommunicated
for
and
now
Mr.
moved
that
he
might
be
discharged
,
because
none
of
the
aforesaid
Causes
were
contained
in
the
He
may
be
discharged
of
the
Forfeiture
for
that
reason
,
but
not
of
the
Excommunication
.
ONE
who
was
outlawed
for
the
Murder
of
Sir
now
brought
a
Writ
of
Error
in
his
Hand
to
the
Bar
,
praying
that
it
might
be
read
and
allowed
.
It
was
read
by
Mr.
Clerk
of
the
Crown
The
Errors
assigned
were
That
it
did
not
appear
upon
the
Return
of
the
in
the
first
that
the
Court
was
held
That
the
Outlawry
being
against
him
and
two
other
persons
,
't
is
said
in
the
last
but
doth
not
say
For
these
Reasons
the
Outlawry
was
reversed
,
and
he
held
up
his
Hand
at
the
Barr
and
pleaded
Not-guilty
to
his
Indictment
,
and
was
admitted
to
Bail
,
and
afterwards
he
was
brought
to
his
Trial
,
and
no
Witness
in
behalf
of
the
King
appearing
against
him
he
was
acquitted
.
A
Writ
of
was
brought
to
reverse
a
Iudgment
given
for
the
Plaintiff
in
the
in
an
Action
of
Executor
de
son
tort
The
Declaration
was
,
that
the
Plaintiff
demised
a
Barn
to
one
for
a
certain
Term
,
by
vertue
whereof
he
was
possessed
,
and
being
so
possessed
died
;
that
the
Defendant
was
his
who
entred
and
made
by
pulling
down
of
the
said
Barn
.
The
Defendant
pleaded
that
died
intestate
,
and
that
he
did
not
administer
.
The
Plaintiff
replyed
,
that
he
entred
as
and
to
this
Plea
the
Defendant
demurred
,
and
the
Plaintiff
joined
in
the
Demurrer
.
This
Case
was
argued
by
Mr.
for
the
Plaintiff
,
who
said
,
That
an
would
not
lie
against
the
Defendant
,
because
the
Mayor
and
Commonalty
,
had
a
remedy
by
an
to
recover
the
Land
upon
which
the
Barn
stood
,
and
a
to
recover
the
Goods
or
Materials
,
and
that
such
an
Action
would
not
lie
against
him
at
the
Common
Law
,
because
he
neither
was
Tenant
by
the
Curtesie
nor
in
Dower
,
against
whom
only
lay
So
that
if
the
Plaintiff
is
entituled
to
this
Action
it
must
be
by
vertue
of
the
Statute
of
but
it
will
not
lie
against
the
Defendant
even
by
that
Statute
,
because
the
Action
is
thereby
given
against
the
Tenant
by
the
Curtesie
,
in
Dower
,
for
Life
or
Years
,
and
treble
Damages
,
But
the
Defendant
is
neither
of
those
,
and
this
being
a
penal
Law
,
which
not
only
gives
treble
damages
,
but
likewise
the
Recovery
of
the
place
wasted
,
ought
therefore
not
to
be
taken
strictly
,
but
according
to
Equity
.
Tenants
at
sufferance
,
or
at
Will
,
by
or
Tenants
by
Statute
Staple
and
also
Pernors
of
Profits
were
never
construed
to
be
within
this
Statute
,
and
therefore
a
particular
Act
was
made
to
give
him
in
Reversion
an
Action
of
where
Tenant
for
life
or
years
had
granted
over
their
Estates
,
and
yet
took
the
Profits
and
committed
Waste
.
Then
the
Question
will
be
what
Estate
this
hath
gained
by
his
Entry
And
as
to
that
he
argued
that
he
had
got
a
Fee-simple
by
and
that
for
this
reason
the
Plaintiff
was
barred
from
this
Action
;
for
if
the
Son
purchase
Lands
in
Fee
and
is
disseised
by
his
Father
,
who
maketh
a
Feoffment
in
Fee
to
another
with
Warranty
and
dieth
,
the
Son
is
for
ever
barred
;
for
though
the
was
not
done
with
any
intention
to
make
such
a
Feoffment
,
yet
he
is
bound
by
this
Alienation
.
So
where
a
man
made
a
Lease
for
life
and
died
,
and
then
his
Heir
suffered
a
Recovery
of
the
same
Land
without
making
an
actual
Entry
,
this
is
an
absolute
because
the
Lessee
had
an
Estate
for
life
;
but
if
he
had
been
Tenant
at
Will
,
it
might
be
otherwise
.
But
admitting
that
the
Defendant
is
not
a
Disseisor
,
then
the
Plaintiffs
must
bring
their
Case
to
be
within
the
Statute
of
as
that
he
is
either
Tenant
for
life
or
years
.
If
he
is
Tenant
for
Life
,
he
must
be
so
either
by
right
or
by
wrong
.
He
cannot
be
so
by
right
,
because
he
had
no
lawful
Conveyance
made
to
him
of
this
Estate
;
besides
't
is
quite
contrary
to
the
Pleading
,
which
is
that
he
entred
wrongfully
.
Neither
can
he
be
so
by
wrong
,
for
such
particular
Estates
,
as
for
life
or
years
,
cannot
be
gained
by
and
so
is
Then
if
this
should
be
construed
an
Estate
for
years
,
it
must
be
gained
either
by
the
Act
of
the
Party
or
by
the
Act
of
the
Law
;
but
such
an
Estate
cannot
be
gained
by
either
of
those
means
.
First
it
cannot
be
gained
by
the
Act
of
the
Party
,
because
an
cannot
have
any
interest
in
a
Term
,
and
for
this
there
is
an
express
Authority
in
this
Court
,
which
was
thus
,
A
Lease
in
Reversion
for
years
was
granted
to
a
man
who
died
intestate
,
his
Wife
,
before
she
had
administred
,
sold
this
Term
to
the
Defendant
,
and
afterwards
she
obtained
Letters
of
Administration
,
and
made
a
Conveiance
of
the
same
Term
to
the
Plaintiff
,
and
Iudgment
was
given
for
the
last
Vendee
,
because
it
was
in
the
case
of
a
Reversion
of
a
Term
for
years
,
upon
which
no
Entry
could
be
made
,
and
of
which
there
could
be
no
though
it
was
admitted
by
the
Court
,
that
such
an
Executor
might
make
a
good
sale
of
the
Goods
before
Administration
granted
.
Neither
can
any
Entry
or
Claim
make
the
Defendant
an
of
a
Term
for
years
,
because
a
wrongful
Entry
can
never
gain
any
Estate
but
a
Fee-simple
;
for
't
is
not
to
be
satisfied
with
any
particular
or
certain
Estate
,
as
for
life
or
years
.
It
cannot
be
gained
by
Act
of
Law
,
because
that
abhors
all
manner
of
wrong
.
If
it
should
be
objected
that
though
this
Executor
doth
not
gain
any
Estate
for
his
own
benefit
;
yet
he
in
the
Reversion
may
take
him
for
a
Disseisor
,
and
it
shall
be
in
his
election
,
either
to
make
him
so
,
or
a
Tenant
for
years
.
To
this
it
may
be
answered
,
that
the
Defendant
doth
not
claim
by
colour
of
any
Grant
;
if
he
did
,
then
he
might
be
a
Disseisor
at
the
Election
of
him
in
the
Reversion
;
and
this
was
the
very
difference
taken
in
the
Case
of
So
likewise
if
it
be
objected
that
the
Defendant
is
an
Occupant
,
and
therefore
punishable
for
but
the
reason
is
not
the
same
,
because
the
Entry
of
an
Occupant
is
lawful
,
and
he
gains
an
Estate
for
life
,
which
is
not
this
Case
.
is
not
a
person
taken
notice
of
in
the
Law
in
respect
to
him
in
the
Reversion
,
but
in
respect
of
the
Creditors
of
the
Intestate
,
and
therefore
if
what
he
doth
may
be
advantageous
to
them
the
Law
will
make
a
Construction
upon
it
for
their
benefit
;
but
if
such
a
person
should
be
within
the
intention
or
meaning
of
this
Statute
,
then
the
natural
Consequences
will
be
:
That
the
place
wasted
would
be
recovered
.
That
the
Plaintiff
would
also
have
treble
damages
.
Both
which
would
be
a
manifest
means
to
defeat
the
Creditors
of
their
Debts
,
for
which
reasons
he
prayed
Iudgment
for
the
Plaintiff
in
the
Errors
.
It
was
argued
by
the
Council
on
the
other
side
,
That
it
is
plain
that
the
Defendant
was
for
such
must
that
person
be
who
intermeddles
with
the
Intestates
Estate
,
where
there
is
no
rightful
Executor
or
Administrator
.
Now
a
Man
may
be
Executor
of
his
own
wrong
of
a
Term
for
years
,
as
appears
even
in
that
case
cited
out
of
on
the
other
side
,
and
if
so
,
the
Defendant
must
be
liable
to
this
Action
.
The
Statute
may
be
expounded
as
well
against
a
wrongful
as
a
rightful
Executor
,
't
is
plain
here
is
a
and
the
Law
is
now
settled
,
that
it
shall
be
in
the
election
of
him
in
the
Reversion
to
make
it
so
.
This
Defendant
would
justifie
one
wrong
by
another
,
for
he
confesseth
that
he
hath
committed
a
and
therefore
will
not
be
answerable
for
committing
of
Waste
.
As
to
the
Objection
that
an
is
liable
only
in
respect
of
Creditors
,
and
that
if
he
should
be
punished
for
it
would
be
an
injury
to
them
,
because
of
the
treble
damages
recovered
against
him
.
Such
damages
must
be
answered
out
of
his
own
Estate
;
for
even
in
the
Case
of
a
rightful
Executor
,
if
he
commit
he
will
be
chargeable
in
a
This
is
not
properly
a
penal
,
but
a
remedial
Law
,
and
as
such
may
be
construed
according
to
Equity
.
'T
is
true
,
Tenants
by
or
by
Statute
are
not
within
this
Statute
,
because
by
them
committed
is
no
wrong
;
for
if
they
should
fell
the
Timber
,
it
sinks
the
Debt
,
and
the
Cognizor
may
have
a
It
would
be
an
infinite
trouble
for
him
in
the
Reversion
to
seek
his
remedy
for
done
,
if
the
Law
did
oblige
him
to
stay
till
there
was
a
rightful
Administrator
,
and
't
is
not
to
be
doubted
,
but
that
there
may
be
an
of
a
Term
for
years
This
is
a
remedial
and
yet
a
penal
Law
,
and
therefore
shall
have
a
favourable
Construction
:
The
Iudgment
was
affirmed
.
DEBT
upon
a
Bond
for
performance
of
Covenants
in
a
Lease
of
a
House
for
a
certain
Term
of
years
rendring
Rent
,
And
the
Breach
assigned
was
,
That
there
was
Rent
in
arrear
The
Defendant
pleaded
the
Statute
of
and
sets
forth
that
the
Defendant
was
a
Vintner
and
an
Alien
Artificer
.
And
upon
a
Demurrer
Mr.
for
the
Defendant
said
,
that
a
Vintner
was
an
Artificer
within
the
meaning
of
the
Act
,
which
was
made
to
prevent
a
mischief
by
Foreigners
encroaching
upon
the
Trades
of
the
King's
Subjects
by
which
they
gained
their
Livelihood
,
and
therefore
shall
be
expounded
largely
and
beneficially
for
them
.
A
Mercer
,
a
Draper
or
Grocer
are
not
properly
Artificers
,
yet
they
are
within
the
meaning
of
this
Act.
Chief
Iustice
This
Statute
refers
to
another
of
so
that
't
is
plain
,
that
such
who
used
any
Art
or
manual
Occupation
were
restrained
from
using
it
here
to
the
prejudice
of
the
King's
Subjects
.
Now
the
Mystery
of
a
Vintner
chiefly
consists
in
mingling
of
Wines
,
and
that
is
not
properly
an
Art
,
but
a
Cheat
;
so
the
Plaintiff
had
his
Iudgment
.
A
Distress
was
taken
for
Chimny-Mony
,
and
the
Parties
distrained
apply
themselves
to
the
two
next
Iustices
of
the
Peace
,
before
whom
it
did
appear
that
let
a
Cottage
to
which
was
not
of
the
yearly
value
of
The
Collectors
of
this
Duty
distrained
upon
the
Land-Lord
,
which
the
said
Iustices
thought
to
be
illegal
,
and
therefore
they
ordered
a
Restitution
:
And
a
being
brought
to
remove
the
Order
into
this
Court
.
Mr.
Attorny
prayed
that
it
might
be
●●●d
.
But
it
was
opposed
by
Mr.
for
that
the
Statute
of
King
&c.
and
then
these
Words
do
follow
,
Now
here
was
Mony
levyed
by
virtue
of
this
Act
,
and
a
Controversie
did
arise
by
reason
of
the
Distress
,
and
an
Order
was
made
by
the
Iustices
,
which
according
to
the
letter
and
meaning
of
the
Act
ought
to
be
final
;
the
intention
whereof
was
to
prevent
the
charge
and
trouble
of
poor
Men
in
Suits
at
Law
about
small
Matters
,
and
therefore
it
gave
the
Iustices
power
to
determine
particular
Offences
and
Oppressions
.
Mr.
Attorney
If
the
Iustices
of
Peace
have
power
to
determine
,
that
is
to
make
them
Iudges
whether
this
Duty
is
payable
or
not
;
and
so
the
Courts
of
who
are
the
proper
Iudges
of
the
Revenue
of
the
King
,
who
by
this
means
will
be
without
an
Appeal
,
will
be
excluded
.
This
Court
may
take
Cognizance
of
this
Matter
as
well
as
in
Cases
of
Bastardy
;
't
is
frequent
to
remove
those
Orders
into
this
Court
though
the
Act
says
,
The
Statute
doth
not
mention
any
which
shews
that
the
intention
of
the
Law-makers
was
that
a
might
he
brought
,
otherwise
they
would
have
enacted
,
as
they
have
done
by
several
other
Statutes
that
no
shall
lie
Therefore
the
meaning
of
the
Act
must
be
,
that
the
determination
of
the
Iustices
of
the
Peace
shall
be
final
in
Matters
of
Fact
only
;
as
if
a
Collector
should
affirm
that
a
person
hath
four
Chimnies
when
he
hath
but
two
,
or
when
the
Goods
distrained
are
sold
under
the
value
,
and
the
Overplus
not
returned
;
but
the
Right
of
the
Duty
arising
by
virtue
of
this
Act
was
never
intended
to
be
determined
by
them
.
Then
the
Order
was
filed
,
and
Mr.
moved
that
it
might
be
quashed
;
for
that
by
the
Statute
of
was
only
chargeable
and
the
Land-Lord
exempted
.
Now
by
the
Proviso
in
that
Act
such
a
Cottage
as
is
expressed
in
this
Order
is
likewise
exempted
,
because
't
is
not
of
greater
value
than
by
the
year
,
and
't
is
not
expressed
that
the
person
inhabiting
the
same
hath
any
Lands
of
his
own
of
the
value
of
nor
any
Lands
or
Goods
to
the
value
of
Now
there
having
been
several
abuses
made
of
this
Law
to
deceive
the
King
of
this
Duty
,
occasioned
the
making
of
this
subsequent
Act.
The
abuses
were
these
The
taking
a
great
House
and
dividing
it
into
several
Tenements
,
and
then
letting
them
to
Tenants
,
who
by
reason
of
their
poverty
might
pretend
to
be
exempted
from
this
Duty
.
The
dividing
Lands
from
Houses
,
so
that
the
King
was
by
these
Practices
deceived
,
and
therefore
in
such
Cases
the
charge
was
laid
upon
the
Land-Lord
;
but
nothing
of
this
appearing
upon
the
Order
it
was
therefore
quashed
.
The
Defendant
avowed
the
taking
of
a
Cup
as
a
Fine
,
for
a
Distress
towards
the
repairing
of
the
High-way
.
The
Plaintiff
replyed
,
and
set
forth
a
Grant
from
the
King
,
by
which
the
Lands
which
were
chargeable
to
send
Men
for
the
repairing
,
were
exempted
from
that
Duty
.
And
upon
a
Demurrer
the
Question
was
,
Whether
the
Kings
Letters
Patents
are
sufficient
to
exempt
Lands
from
the
Charge
of
the
repairing
of
the
High-ways
,
which
by
the
Statute
of
and
other
subsequent
Statutes
are
chargeable
to
send
Men
for
that
purpose
.
And
it
was
argued
,
that
such
Letters
Patents
were
not
sufficient
,
because
they
were
granted
in
this
Case
before
the
making
of
the
Statute
,
and
so
by
consequence
before
any
cause
of
Action
;
and
to
prove
this
a
Case
was
cited
to
this
purpose
.
an
Action
was
brought
against
an
Hundred
for
a
Robbery
upon
the
Statute
of
The
Bishop
of
pleaded
a
Charter
of
by
which
that
Hundred
,
which
was
held
in
Right
of
his
Church
,
was
exempted
,
But
it
was
held
that
this
Charter
could
not
discharge
the
Action
,
because
no
such
Action
was
given
when
the
Letters
Patents
were
made
,
but
long
afterwards
.
Iudgment
was
given
for
the
Avowant
.
he
did
break
and
enter
,
and
one
hundred
Trouts
ipsius
querentis
in
libera
piscaria
in
the
Fishery
aforesaid
did
take
and
carry
away
.
Vpon
Not
guilty
pleaded
,
there
was
a
Verdict
for
the
Plaintiff
,
and
this
Exception
was
taken
in
arrest
of
Iudgment
,
For
that
the
Plaintiff
declared
in
Trespass
for
taking
so
many
Fish
which
cannot
be
,
because
he
hath
not
such
a
property
to
call
the
Fish
his
own
.
If
there
had
not
been
a
Verdict
such
a
Construction
might
have
been
made
of
this
Declaration
upon
a
Demurrer
;
but
now
't
is
helped
,
and
the
rather
because
a
Man
may
call
them
in
a
free
Fishery
;
for
they
may
be
in
a
Trunk
;
so
a
Man
may
have
a
property
though
not
in
himself
,
as
in
the
Case
of
Iointenants
,
where
't
is
not
in
one
,
but
in
both
;
yet
if
one
declare
against
the
other
,
unless
he
plead
the
Iointenancy
in
Abatement
the
Plaintiff
shall
recover
.
But
notwithstanding
the
Iudgment
was
reversed
.
THE
Defendant
was
indicted
for
the
Evidence
against
him
was
,
that
one
was
arrested
at
the
Suit
of
in
an
Action
of
and
was
brought
before
a
Iudge
to
give
Bail
to
the
Action
;
and
that
the
Defendant
,
who
was
a
Barrister
at
Law
,
was
then
present
,
and
did
sollicite
this
Suit
,
when
in
truth
at
the
same
time
was
indebted
to
and
that
he
did
not
owe
the
said
one
farthing
The
Chief
Iustice
was
first
of
Opinion
,
that
this
might
be
Maintenance
,
but
that
it
was
not
Barretry
unless
it
appeared
that
the
Defendant
did
know
that
had
no
cause
of
Action
after
it
was
brought
.
If
a
Man
should
be
arrested
for
a
trifling
Cause
,
or
for
no
Cause
,
this
is
no
Barretry
,
though
't
is
a
sign
of
a
very
ill
Christian
,
it
being
against
the
express
Word
of
God
.
But
a
Man
may
arrest
another
thinking
he
hath
a
just
cause
so
to
do
,
when
as
in
truth
he
hath
none
,
for
he
may
be
mistaken
especially
where
there
hath
been
great
dealings
between
the
Parties
.
But
if
the
design
was
not
to
recover
his
own
Right
,
but
only
to
ruine
and
oppress
his
Neighbour
,
that
is
Barretry
.
A
Man
may
lay
out
mony
in
behalf
of
another
in
Suits
at
Law
to
recover
a
just
Right
,
and
this
may
be
done
in
respect
of
the
Poverty
of
the
Party
;
but
if
he
lend
mony
to
promote
and
stirr
up
Suits
then
he
is
a
Barretor
.
Now
it
appearing
upon
the
Evidence
that
the
Defendant
did
entertain
in
his
House
,
and
brought
several
Actions
in
his
Name
where
nothing
was
due
,
that
he
was
therefore
guilty
of
that
Crime
.
But
if
an
Action
be
first
brought
,
and
then
profecuted
by
another
,
he
is
no
Barretor
though
there
is
no
cause
of
Action
.
The
Defendant
was
found
guilty
.
Thomas
Jones
Henry
Beddingfield
William
Mountagu
Edward
Atkyns
Job
Charleton
Edward
Lutwich
THE
Father
and
Son
join
in
a
Fine
,
in
order
to
make
a
Settlement
upon
the
second
Wife
of
the
Father
,
who
was
only
Tenant
by
the
Curtesie
,
the
Remainder
in
Tail
to
his
said
Son
.
One
of
the
Cognizors
died
after
the
Caption
,
and
before
the
Return
of
the
Writ
of
Covenant
;
and
now
a
Writ
of
Error
was
brought
to
Reverse
it
,
and
this
was
assigned
for
Error
.
If
it
had
been
in
the
Case
of
a
Purchasor
for
a
valuable
Consideration
,
the
Court
would
have
shewed
him
some
favour
;
but
it
being
to
do
a
wrong
to
a
young
Man
,
they
would
leave
it
open
to
the
Law
.
John
Holt
Ambrose
Phillips
Christopher
Milton
,
John
Powell
,
John
Tate
,
William
Rawlinson
,
George
Hutchins
,
William
Killingworth
,
Hugh
Hodges
,
Thomas
Geers
drowned
himself
in
a
Pond
,
and
the
Coroners
Enquest
found
him
because
't
is
more
generally
supposed
that
a
Man
in
his
Senses
will
not
be
The
Kings
Councel
moved
for
a
and
that
the
Inquisition
might
be
quashed
,
for
that
it
sets
forth
,
which
is
insensible
Here
is
no
Exception
taken
to
the
substance
of
the
Inquisition
,
and
the
word
had
been
sufficient
,
if
the
word
had
been
left
out
The
Court
were
of
Opinion
,
that
there
being
another
word
in
this
Inquisition
,
which
carries
the
sense
;
't
is
therefore
sufficient
,
but
if
it
had
stood
singly
upon
this
word
it
had
not
been
good
And
this
Fact
happening
about
the
time
of
the
general
Pardon
,
the
Court
was
of
Opinion
that
where
an
Interest
is
vested
in
the
King
,
a
Pardon
of
all
Forfeitures
will
not
divest
it
,
but
that
nothing
was
vested
here
before
Inquisition
found
.
It
was
objected
,
that
this
Inquisition
ought
to
set
forth
that
came
by
his
death
by
this
means
,
To
which
it
was
answered
by
that
in
matters
of
Form
only
,
the
Iudges
have
sent
for
the
Coroner
into
Court
,
and
ordered
him
to
amend
it
.
AN
Action
on
the
Case
was
brought
against
three
Defendants
,
one
of
them
suffered
Iudgment
to
go
by
default
,
and
the
other
two
pleaded
Not
Guilty
.
The
Cause
was
tryed
the
last
Assises
at
and
it
was
for
imposing
the
Crime
of
Treason
upon
the
Plaintiff
,
and
for
assaulting
and
imprisoning
of
him
;
there
was
a
Verdict
for
the
Plaintiff
and
damages
against
Mr.
against
the
other
Defendant
,
who
pleaded
.
The
Plaintiff
entred
a
against
him
,
who
let
the
Iudgment
go
by
default
;
and
against
the
other
Defendant
for
the
damages
,
and
took
judgment
only
against
Mr.
moved
for
a
new
Trial
,
by
reason
of
the
excessive
Damages
,
which
were
not
proportioned
to
the
quality
of
the
Plaintiff
,
he
being
a
Man
of
mean
Fortune
.
But
it
was
opposed
by
the
Plaintiff
,
for
that
the
Defendant
pursued
him
as
a
Traytor
,
and
when
he
was
apprehended
for
that
Crime
,
he
caused
him
to
be
arrested
for
at
the
Suit
of
another
person
,
to
whom
he
was
not
indebted
.
,
so
that
upon
consideration
of
the
Circumstances
of
the
Case
,
the
Court
refused
to
grant
a
new
Tryal
.
Then
Serjeant
for
the
Defendants
,
moved
in
arrest
of
Iudgment
,
and
for
cause
shewed
,
that
the
Iury
have
found
both
guilty
,
and
assessed
several
Damages
,
which
they
cannot
do
,
because
this
is
a
to
which
the
Defendants
have
pleaded
jointly
,
and
being
found
guilty
the
Iury
cannot
assess
the
damages
severally
,
for
the
damage
is
the
same
by
the
one
as
the
other
&
al'
and
therefore
it
hath
been
adjudged
,
that
where
an
Action
of
Battery
was
brought
against
three
,
and
one
pleaded
not
guilty
,
and
the
other
two
and
several
damages
found
against
them
,
it
was
held
ill
,
for
that
very
reason
,
because
it
was
a
joint
offence
.
'T
is
true
,
where
there
are
divers
Defendants
and
damages
assessed
severally
,
the
Plaintiff
hath
his
election
to
take
execution
but
this
is
when
the
Trials
are
at
several
times
.
So
't
is
where
they
plead
several
Pleas
as
in
an
Action
of
Battery
,
one
pleads
not
guiity
,
and
the
other
justifies
,
and
both
Issues
are
found
for
the
Plaintiff
;
in
such
case
he
may
enter
a
against
one
,
and
take
Iudgment
against
the
other
,
because
their
Pleas
are
several
;
but
where
they
plead
jointly
,
the
Iury
cannot
sever
the
Damages
.
But
Mr.
&
al'
for
the
Plaintiff
insisted
,
that
even
in
this
case
damages
may
be
assessed
severally
;
for
where
two
Defendants
are
sued
for
the
same
Battery
,
and
they
plead
the
same
Plea
,
yet
damages
may
be
assessed
So
was
's
Case
in
this
Court
,
which
was
an
Action
for
an
Assault
and
Battery
and
false
Imprisonment
;
one
of
the
Defendants
pleaded
not
Guilty
,
and
the
other
justified
;
Issue
was
joined
,
and
there
was
a
Verdict
for
the
Plaintiff
,
and
damages
assessed
severally
;
the
Plaintiff
entred
a
as
to
one
,
and
took
judgment
against
the
other
,
and
upon
this
a
Writ
of
Error
was
brought
in
this
Court
,
and
the
Iudgment
was
affirmed
.
So
if
an
Action
of
Trespass
be
brought
against
two
for
taking
of
the
one
took
and
the
other
damages
shall
be
assessed
severally
It
was
admitted
that
regularly
the
damages
ought
to
be
entire
,
especially
where
the
Action
is
joint
;
but
where
the
Facts
are
several
,
damages
may
likewise
be
so
assessed
;
but
in
this
Case
the
Iury
hath
done
what
the
Court
would
do
,
had
it
béen
in
a
Criminal
Cause
.
This
is
all
but
one
Fact
which
the
Iury
is
to
try
:
'T
is
true
,
when
several
Persons
are
found
Guilty
criminally
,
then
the
damages
may
be
severed
in
proportion
to
their
Guilt
;
but
here
all
are
equally
guilty
of
the
same
offence
;
and
it
seems
to
be
a
contradiction
to
say
that
the
Plaintiff
is
injured
by
one
to
the
value
of
and
by
the
other
to
the
value
of
when
both
are
equally
Guilty
Every
Defendant
ought
to
answer
full
as
much
as
the
Plaintiff
is
damnified
;
now
how
is
it
possible
he
should
be
damnified
so
much
by
one
and
so
little
by
the
other
?
But
notwithstanding
this
Opinion
,
Iudgment
was
afterwards
given
for
the
Plaintiff
.
IN
an
Action
on
the
Case
for
Words
,
the
Plaintiff
declared
that
he
was
a
Merchant
,
and
bred
up
in
the
Church
of
and
that
when
the
present
King
came
to
the
Crown
,
the
said
Plaintiff
made
a
Bonfire
at
his
Door
in
the
City
of
and
that
the
Defendant
then
spoke
of
him
these
words
for
which
he
now
brought
this
Action
,
the
Plaintiff
The
Plaintiff
had
a
Verdict
,
and
Damages
were
given
:
A
Writ
of
Error
was
brought
,
but
it
was
adjudged
without
argument
,
that
the
words
were
actionable
.
AN
Action
was
brought
upon
the
Statute
of
for
prosecuting
of
a
Cause
in
the
Court
,
which
did
arise
upon
the
Land
;
it
was
tried
before
the
Chief
Iustice
in
and
a
Verdict
for
the
Plaintiff
.
moved
in
Arrest
of
Iudgment
,
for
that
the
Action
was
brought
by
Original
,
in
which
it
was
set
forth
,
that
the
Defendant
now
the
is
subsequent
to
the
Original
,
and
so
they
have
recovered
Damages
for
that
which
was
done
after
the
Action
brought
.
These
words
must
refer
to
the
time
of
suing
forth
this
Original
;
like
the
Case
of
a
Covenant
for
quiet
Enjoyment
,
and
a
breach
assigned
,
that
the
Defendant
built
a
Shed
,
whereby
he
hindred
the
Plaintiff
that
he
could
not
enjoy
it
which
word
must
refer
to
the
time
of
the
Action
brought
,
and
not
afterwards
.
Iudgment
was
given
for
the
Plaintiff
.
AN
Information
was
brought
against
the
Defendant
for
setting
forth
,
that
the
Defendant
being
a
man
of
ill
fame
,
and
contriving
to
cheat
one
did
forge
dated
the
day
of
in
the
year
He
was
found
Guilty
,
and
afterwards
this
Exception
was
taken
in
arrest
of
Iudgment
,
That
the
Fact
alledged
in
the
Information
was
a
contradiction
of
it self
,
for
how
could
be
Bound
when
the
Bond
was
forged
?
It
is
not
set
forth
what
that
was
,
whether
it
was
or
not
The
Defendant
is
found
Guilty
of
the
forging
of
a
Writing
,
in
which
was
contained
and
that
may
be
a
true
Bond.
Iudgment
was
arrested
.
Tuesday
,
April
Thomas
Powes
IN
Ejectment
a
special
Verdict
was
found
,
in
which
the
Case
did
arise
upon
the
construction
of
the
words
in
a
Will
.
The
Testator
being
seised
in
Fee
,
had
Issue
He
made
his
Will
,
and
devised
his
Estate
,
(
being
in
Houses
)
by
these
words
.
Nicholas
Price
(
naming
them
without
Issue
Anne
Warner
entred
and
died
without
Issue
,
then
the
four
Sisters
entred
,
and
the
eldest
married
and
died
,
leaving
Issue
a
Son
,
who
was
the
Lessor
of
the
Plaintiff
,
who
insisted
upon
his
Title
to
a
fourth
part
of
the
Houses
.
The
Question
was
,
what
Estate
the
Daughters
took
by
this
Will
,
whether
Estates
for
Life
,
or
several
Remainders
in
Tail
?
If
only
Estates
for
Life
,
then
the
Plaintiff
,
as
Heir
to
his
Mother
,
will
not
be
entituled
to
a
fourth
part
;
if
several
Remainders
in
Tail
,
then
the
Father
will
have
it
during
his
Life
,
as
Tenant
by
the
Curtesie
.
This
Case
was
argued
this
Term
by
Mr.
for
the
Plaintiff
:
And
in
Term
following
by
Councel
for
the
Defendant
.
The
Plaintiffs
Council
insisted
,
that
they
took
joint
Estates
for
Life
,
and
this
seemed
to
be
the
intent
of
the
Testator
,
by
the
words
in
his
Will
,
the
first
Clause
whereof
was
,
Nicholas
Price
:
Now
by
these
words
an
Estate
for
Life
only
passed
to
him
,
and
not
an
Inheritance
,
for
there
was
nothing
to
be
done
,
or
any
thing
to
be
paid
out
of
it
The
next
Clause
is
Now
these
words
cannot
give
the
Daughters
a
Fee-simple
,
by
any
intendment
whatsoever
;
but
if
any
word
in
this
Clause
seems
to
admit
of
such
a
Construction
,
it
must
be
the
word
which
sometimes
signifies
the
Land
it self
,
and
sometimes
the
Estate
in
the
Land
.
But
here
the
word
cannot
create
a
Fee-simple
,
because
the
Testator
gave
his
Daughters
that
Estate
which
he
had
given
to
his
Son
before
,
and
that
was
only
for
Lise
.
Then
follow
the
words
and
that
only
makes
them
Tenants
in
Common
.
The
next
Clause
is
These
words
as
they
are
penned
can
have
no
influence
upon
the
Case
.
Then
followeth
the
last
Clause
These
words
create
no
Estate
tail
in
the
Daughters
;
for
the
Testator
having
two
Sons
and
four
Daughters
,
it
cannot
be
collected
by
these
words
,
how
they
shall
take
,
and
by
consequence
it
cannot
be
an
Estate
Tail
by
implication
.
Now
suppose
one
of
the
Daughters
should
dye
without
Issue
,
't
is
uncertain
who
shall
have
her
part
;
and
therefore
there
being
no
appointment
in
what
order
this
Estate
shall
go
,
it
cannot
be
an
Estate
Tail
,
and
to
maintain
this
Opinion
,
this
Case
was
cited
.
was
seised
in
Fee
of
three
Houses
,
and
had
Issue
three
Sons
he
devised
to
each
of
them
a
House
in
Fee
,
Proviso
,
if
all
my
Children
dye
without
Issue
of
their
Bodies
then
the
Houses
to
be
to
his
Wife
.
The
two
eldest
Sons
died
without
Issue
,
the
younger
had
Issue
a
Daughter
,
who
married
the
Lessor
of
the
Plaintiff
.
The
Question
was
,
Whether
by
the
death
of
the
eldest
Son
without
Issue
,
there
was
a
cross
Remainder
to
and
the
Heirs
of
his
Body
,
or
whether
the
Wife
shall
take
immediately
,
or
expect
till
after
the
Death
of
all
the
Sons
without
Issue
?
And
it
was
adjudged
,
that
the
Wife
shall
take
immediately
,
and
that
there
were
no
cross
Remainders
,
nor
any
Estate
by
implication
,
because
it
was
a
devise
to
them
severally
by
express
limitation
.
So
that
if
no
Estate
tail
ariseth
to
the
Daughters
in
this
Case
by
implication
,
then
't
is
no
more
than
a
devise
to
his
Issue
,
which
extends
to
them
all
,
and
gives
only
an
Estate
for
Life
.
For
the
Defendant
it
was
argued
,
that
the
Sons
and
Daughters
have
no
Estate
Tail
by
implication
.
It
was
agreed
that
had
only
an
Estate
for
Life
,
and
that
the
word
in
this
case
means
the
Houses
,
and
not
the
Interest
in
them
.
'T
is
true
,
there
is
no
express
Limitation
of
any
Estate
to
them
,
but
there
is
an
express
determination
of
it
.
Now
if
this
be
not
an
Estate
Tail
by
implication
,
then
the
words
are
void
A
devise
to
his
Son
and
if
he
dye
not
having
a
Son
,
then
't
is
devised
over
,
This
is
an
Estate
tail
in
Remainder
.
It
cannot
be
a
doubt
who
shall
take
first
;
for
the
Daughters
shall
take
it
,
and
after
them
,
as
't
is
most
natural
,
the
eldest
Son
;
for
where
there
is
the
same
proximity
of
Blood
,
the
Estate
shall
go
to
the
eldest
.
As
for
instance
being
seised
in
Fee
of
two
Houses
,
and
having
three
Brothers
,
devised
the
House
which
dwelt
in
to
his
said
three
Brothers
,
and
the
House
in
which
his
Brother
did
dwell
,
he
devised
to
the
said
paying
so
much
or
else
to
remain
to
the
Family
of
the
Testator
,
provided
that
the
Houses
be
not
sold
,
but
go
to
the
next
of
the
Males
,
and
the
blood
of
the
Males
.
died
without
Issue
,
the
eldest
of
the
two
surviving
Brothers
had
Issue
a
Daughter
,
and
died
:
the
Question
was
,
whether
that
Daughter
or
the
youngest
Brother
of
the
Testator
should
have
the
House
?
It
was
adjudged
that
the
Daughter
should
have
it
in
tail
.
For
the
that
the
Houses
be
not
sold
,
made
it
a
tail
;
and
the
words
must
be
intended
to
the
eldest
.
If
this
be
not
an
Estate
tail
,
then
the
Devise
over
to
is
void
As
to
the
Case
of
that
moves
upon
another
reason
;
for
there
every
one
took
by
a
distinct
and
separate
Limitation
.
In
that
Case
all
the
Estate
was
limited
distinctly
to
the
three
Sons
;
but
in
this
't
is
otherwise
,
for
the
Testator
had
two
Sons
,
and
no
Estate
was
limited
to
one
of
them
before
;
then
he
saith
,
&c.
And
thus
the
Cases
differ
,
which
creates
the
difficulty
.
But
no
reason
can
be
given
why
this
Court
should
not
construe
Wills
according
to
the
Rules
of
Common
Law
,
where
an
Estate
by
implication
is
so
incertain
;
for
when
Men
are
sick
and
yet
have
a
disposing
power
left
they
usually
write
Nonsense
,
and
the
Iudges
must
rack
their
Brains
to
find
out
what
is
intended
.
This
cannot
be
an
Estate
tail
in
the
Daughters
,
and
therefore
the
Heir
must
come
in
for
his
fourth
part
.
Iudgment
for
the
Plaintiff
THIS
was
a
special
Issue
,
directed
out
of
and
tried
this
day
at
the
Bar
,
by
a
The
Question
was
,
Whether
had
power
to
keep
a
Fair
at
in
any
one
place
where
they
please
;
the
Bill
being
Exhibited
to
confine
the
Fair
to
a
particular
place
;
which
Fair
was
granted
to
them
by
Charter
from
Queen
They
who
would
have
it
confin'd
to
a
certain
place
,
gave
in
Evidence
,
that
the
was
seised
in
Fee
of
the
Manor
of
within
which
Manor
the
place
was
where
the
Fair
was
always
kept
,
and
that
the
Parson
of
had
Glebe
there
That
this
place
was
called
and
that
the
profits
did
arise
by
Piccage
and
Stallage
,
to
the
yearly
value
of
That
it
was
an
ancient
Fair
held
there
by
Prescription
before
the
Town
of
had
a
Charter
That
upon
the
late
Surrender
of
Charters
,
the
Town
of
did
likewise
surrender
and
took
a
new
Charter
,
in
which
liberty
was
given
to
them
to
keep
this
Fair
in
what
place
they
would
.
That
both
the
Hospitaller
and
Parson
petitioned
the
King
in
Council
,
and
obtained
an
Order
to
Try
where
the
Fair
ought
to
be
kept
,
which
was
tried
accordingly
at
the
Bar
,
and
a
Verdict
for
the
Parson
.
If
the
Fair
belongs
to
they
may
chuse
whether
they
will
keep
it
at
any
place
;
and
that
may
create
another
Question
,
Whether
they
may
not
forfeit
this
Franchise
by
disuser
?
But
certainly
if
the
place
be
not
limited
by
the
King's
Grant
,
they
may
keep
it
where
they
please
,
or
rather
where
they
can
most
conveniently
,
and
if
it
be
so
limited
,
they
may
keep
it
in
what
part
of
such
place
they
will
.
AN
Action
on
the
Case
was
brought
against
the
Defendant
,
for
making
a
Chancery
,
in
which
were
these
words
Vpon
not
Guilty
pleaded
,
there
was
a
Verdict
for
the
Plaintiff
,
and
damages
entire
.
It
was
moved
in
arrest
of
Iudgment
,
for
that
the
truth
of
on
Oath
shall
not
be
liable
to
a
Trial
in
an
Action
on
the
Case
;
for
the
Law
intendeth
every
Oath
to
be
true
.
Before
the
Statute
of
which
gives
power
to
examine
Perjury
;
there
was
not
any
Punishment
at
the
Common
Law
for
a
false
Oath
made
by
any
Witness
,
and
therefore
an
Action
will
not
lye
for
a
scandalous
Affidavit
.
An
Action
of
Assault
and
Battery
,
and
false
imprisonment
was
brought
against
four
Defendants
:
the
Plaintiff
had
Iudgment
,
and
they
brought
a
Writ
of
Error
.
The
Plaintiff
in
the
Action
pleaded
the
Release
of
one
of
them
,
and
to
this
Plea
all
four
jointly
demur
.
The
Opinion
of
the
Court
was
,
that
Iudgment
might
be
given
for
they
being
compelled
by
Law
to
join
in
a
Writ
of
Error
,
the
release
of
one
shall
not
discharge
the
rest
of
a
But
where
divers
are
to
the
Release
of
one
is
a
Bar
to
all
;
but
it
is
not
so
in
point
of
discharge
.
If
two
Coparceners
make
a
Lease
of
a
House
,
and
the
Rent
is
in
arrear
,
and
one
of
them
brings
the
Action
and
recovers
,
the
Iudgment
shall
be
arrested
,
because
one
alone
hath
recovered
in
Debt
for
a
moiety
,
when
both
ought
to
join
.
But
it
is
agreed
that
if
one
Tenant
in
Common
make
a
Lease
rendring
Rent
,
which
afterwards
is
in
arrear
,
they
must
join
in
an
Action
of
Debt
,
because
it
savours
of
the
Personalty
:
But
't
is
otherwise
in
case
of
the
Realty
.
Battery
,
Wounding
and
Imprisoning
of
him
,
from
the
The
Defendant
pleaded
not
Guilty
The
Plaintiff
replied
,
that
the
Writ
was
sued
out
And
that
the
Defendant
was
Guilty
within
six
years
next
before
the
Writ
brought
.
Vpon
this
Issue
was
joyned
,
and
a
Verdict
was
given
for
the
Plaintiff
,
and
entire
damages
given
.
moved
two
Exceptions
in
Arrest
of
Iudgment
.
That
a
Verdict
cannot
help
what
appears
to
be
otherwise
upon
the
face
of
the
Record
.
Now
here
the
Plaintiff
declared
that
he
was
imprisoned
the
which
is
years
since
,
and
being
one
entire
Trespass
the
Issue
is
found
as
laid
in
the
Declaration
,
which
cannot
be
for
so
many
years
between
the
cause
of
Action
and
bringing
of
the
Writ
;
for
if
a
Trespass
be
continued
several
years
,
the
Plaintiff
must
sue
only
for
the
last
six
years
,
for
which
he
hath
a
compleat
cause
of
Action
;
but
when
those
are
expired
he
is
barred
by
the
Statute
.
When
the
Plaintiff
hath
any
cause
of
Action
,
then
the
Statute
of
Limitations
begins
;
as
in
an
Action
on
the
Case
for
words
,
if
they
are
actionable
in
themselves
without
alledging
special
damages
,
the
Plaintiff
will
recover
Damages
from
the
time
of
the
speaking
,
and
not
according
to
what
loss
may
follow
.
So
in
Trover
and
Conversion
,
when
there
is
a
cause
of
Action
vested
,
and
the
Goods
continue
in
the
same
possession
for
seven
years
afterwards
;
in
such
case
't
is
the
first
conversion
which
entitles
the
Plaintiff
to
an
Action
.
So
in
the
Case
at
Bar
,
tho'
this
be
a
continued
imprisonment
,
yet
so
much
as
was
before
the
Writ
brought
,
is
barred
by
the
Statute
.
The
Verdict
is
good
,
for
the
Iury
reject
the
beginning
of
the
trespass
and
give
Damages
only
for
that
which
falls
within
the
six
years
;
and
this
may
be
done
because
't
is
laid
If
the
Defendant
had
pleaded
not
Guilty
generally
,
then
Damages
must
be
for
the
years
,
though
the
Plaintiff
of
his
own
shewing
had
brought
his
Action
for
a
thing
done
beyond
the
time
limited
by
the
Statute
;
but
having
pleaded
not
Guilty
at
any
time
within
six
years
,
if
the
Verdict
find
him
guilty
within
that
time
,
't
is
against
him
.
As
to
the
Objection
,
that
the
Cause
of
Action
ariseth
beyond
six
years
,
tho'
it
doth
appear
so
in
the
Declaration
,
yet
that
doth
not
exclude
the
Plaintiff
,
for
there
might
have
been
Process
out
before
,
or
he
might
be
disabled
by
an
Outlawry
,
which
may
be
now
reversed
;
or
he
might
be
in
Prison
and
newly
discharged
,
from
which
time
he
hath
six
years
to
begin
his
Action
,
for
being
under
either
of
these
circumstances
the
Statute
doth
not
hurt
him
.
If
an
Action
of
false
Imprisonment
be
brought
for
seven
years
,
and
the
Jury
find
the
Defendant
guilty
but
for
two
days
,
't
is
a
Trespass
within
the
Declaration
.
This
Statute
relates
to
a
distinct
and
not
to
a
continued
Act
,
for
after
six
years
it
will
be
difficult
to
prove
a
Trespass
,
many
accidents
may
happen
within
that
time
,
as
the
death
or
removal
of
Witnesses
,
Iudgment
was
given
for
the
Plaintiff
.
THE
Plaintiff
was
a
Husbandman
who
brought
an
Action
against
the
Defendant
for
these
words
,
He
had
a
Verdict
,
and
it
was
moved
now
in
Arrest
of
Iudgment
,
that
the
Words
being
spoken
of
a
Farmer
,
are
not
actionable
.
To
say
that
a
though
he
used
to
Buy
and
Sell
,
yet
being
no
't
was
the
better
Opinion
of
the
Court
,
that
the
Words
were
not
actionable
.
So
to
say
of
a
that
he
is
a
and
it
not
appearing
that
he
got
his
living
by
Buying
and
Selling
,
or
that
the
Words
were
spoken
of
him
relating
to
his
Occupation
,
't
is
not
actionable
.
For
it
must
not
only
appear
that
the
Plaintiff
hath
a
Trade
,
but
that
he
gets
his
Living
by
it
,
otherwise
the
Words
spoken
of
him
will
not
bear
an
Action
.
But
the
Court
held
the
Words
to
be
actionable
:
the
like
Iudgment
was
given
in
the
Case
of
a
for
Words
Iudgment
was
given
upon
a
Demurrer
,
and
a
Writ
of
Enquiry
was
awarded
;
and
in
the
Entry
thereof
upon
the
Roll
the
Words
were
left
out
,
and
now
the
Question
was
,
Whether
it
shall
be
amended
?
It
was
said
that
a
for
a
shall
be
amended
upon
the
new
Statute
of
Jeofails
,
after
a
Verdict
,
but
whether
upon
a
Demurrer
,
it
was
doubted
.
In
a
Iudgment
was
entred
by
disclaimer
by
the
consent
of
all
Parties
,
and
the
Words
were
wrote
in
the
Margin
of
the
Paper
Book
by
the
then
Attorny
General
;
but
by
reason
of
a
stroak
cross
them
the
Clerk
omitted
them
in
engrossing
the
Iudgment
:
But
upon
a
Motion
the
Court
held
this
amendable
at
the
Common
Law
.
The
Error
is
only
a
Misentry
of
the
Writ
of
Enquiry
and
amendable
without
paying
of
Costs
.
the
Secondary
said
that
Costs
were
never
paid
in
this
Court
upon
such
Amendments
,
nor
in
the
until
my
Lord
Chief
Iustice
time
;
but
he
altered
the
Practice
and
made
that
Rule
,
that
if
you
amend
after
a
Writ
of
Error
brought
you
must
pay
Costs
.
was
brought
against
an
who
pleaded
an
insufficient
Plea
and
upon
a
Demurrer
the
Question
was
upon
the
Statute
of
The
Title
whereof
is
which
is
introductory
of
a
new
Law
,
and
charges
those
who
were
not
chargeable
before
at
the
Common
Law
;
but
it
enacts
,
Executors
de
son
tort
held
,
that
he
shall
not
be
charged
,
for
where
an
Act
of
Parliament
charges
an
Executor
,
in
such
case
an
Administrator
shall
be
likewise
charged
;
but
if
an
Administrator
be
charged
,
that
shall
never
extend
to
an
Executor
.
The
Rule
is
,
therefore
the
rightful
Executor
shall
not
be
charged
by
this
Act
,
which
only
makes
Executors
of
Executors
There
can
be
no
reason
given
why
the
Act
should
make
an
Administrator
of
an
Administrator
lyable
to
a
and
not
an
Administrator
of
an
Executor
for
the
mischief
will
be
the
same
,
and
therefore
a
rightful
Executor
who
wasts
the
Testator's
Goods
ought
to
be
charged
.
The
Recital
of
this
Act
is
large
enough
;
the
Preamble
is
general
and
the
enacting
Clause
expresseth
de
son
tort
;
but
then
it
also
mentions
but
not
such
who
are
their
Administrators
Now
the
Word
is
in
it self
a
general
Word
,
and
extends
to
any
one
who
meddles
with
the
personal
Estate
,
so
that
the
Preamble
being
general
and
the
Act
remedial
't
is
within
the
same
mischief
.
The
Word
is
very
comprehensive
,
for
when
an
Executor
pleadeth
he
saith
If
a
rightful
Executor
waste
the
Goods
,
he
is
a
kind
of
an
Administrator
for
abusing
of
the
Trust
There
is
no
Superiority
between
an
Executor
or
an
Administrator
,
for
by
this
Act
they
are
both
equal
in
power
as
to
the
Goods
of
the
deceased
.
Iudgment
was
given
that
the
Administrator
of
the
rightful
Executor
shall
be
liable
.
'T
IS
enacted
by
the
Statute
of
The
Defendant
was
convicted
by
the
Oath
of
the
Informer
;
and
Mr.
moved
that
it
might
be
quashed
,
because
the
Informer
is
not
to
be
admitted
as
a
Witness
,
he
being
to
have
a
Moiety
of
the
Forfeiture
.
The
Party
to
an
usurious
Contract
shall
not
be
admitted
as
an
Evidence
to
prove
the
Vsury
,
because
he
is
and
by
their
Oath
may
avoid
their
own
Bonds
.
The
Statute
gives
power
to
convict
by
the
Oath
of
a
credible
Witness
,
and
such
is
the
Informer
.
'T
is
not
a
material
Objection
to
say
,
for
in
Cases
of
the
like
nature
the
Informer
is
always
a
good
Witness
.
As
upon
the
Statute
for
suppressing
of
Conventicles
the
Informer
is
a
good
Witness
,
and
yet
he
hath
part
of
the
Penalty
;
for
otherwise
that
Act
would
be
of
little
force
,
for
if
who
sees
the
People
met
together
be
not
a
good
Witness
no
Body
else
can
.
In
the
Statute
of
Robberies
a
Man
swears
for
himself
;
because
there
can
be
no
other
Witness
,
he
is
a
good
Witness
.
DEBT
upon
a
Bond
against
an
Administrator
,
who
pleaded
Fully
administred
,
and
that
he
had
not
notice
of
this
Bond
before
such
a
day
.
In
this
Case
a
special
Verdict
was
found
;
upon
which
the
Question
was
,
Whether
was
necessary
to
be
given
of
Debts
of
an
inferior
nature
.
The
Court
gave
no
Opinion
;
but
they
agreed
that
a
Iudgment
upon
a
simple
Contract
may
be
pleaded
in
Barr
to
an
Action
of
Debt
upon
a
Bond
;
and
that
't
is
no
in
an
Executor
to
pay
a
Debt
upon
such
a
Contract
before
a
Bond
Debt
,
of
which
he
had
no
Notice
.
So
where
an
Obligor
did
afterwards
enter
into
a
Recognizance
in
the
nature
of
a
Statute
,
and
Iudgment
was
against
him
upon
the
Bond
,
and
then
he
dyed
;
his
Executrix
paid
the
Creditor
upon
the
Statute
,
and
the
Obligee
brought
a
upon
the
Judgment
on
the
Bond
Debt
,
and
she
pleaded
payment
of
the
Recognizance
;
this
was
held
a
good
Plea
,
for
she
is
not
bound
to
take
Notice
of
the
Iudgments
against
the
Testator
without
being
acquainted
therewith
by
his
Creditors
,
for
she
is
in
no
wise
privy
to
his
Acts.
AN
Information
was
exhibited
against
the
Defendant
for
Perjury
,
setting
forth
that
a
Bill
in
was
exhibited
by
one
and
the
Proceedings
thereon
The
Perjury
was
assigned
in
a
Deposition
made
by
the
Defendant
and
taken
in
that
Cause
It
was
tried
this
day
at
the
Barr
;
and
the
Question
was
,
Whether
the
Return
of
the
Commissioners
that
the
Defendant
made
Oath
before
them
shall
be
a
sufficient
Evidence
to
convict
him
of
Perjury
without
their
being
present
in
Court
to
prove
him
the
very
same
person
.
for
the
Defendant
,
admitted
an
Information
will
lie
in
this
Case
against
him
,
but
the
Commissioners
must
be
here
,
or
some
other
person
,
to
prove
that
he
was
the
person
who
made
Oath
before
them
.
The
Commissioners
sign
the
Depositions
,
and
they
ought
to
produce
them
so
signed
to
the
Court
and
prove
it
,
for
Depositions
are
often
suppressed
by
Order
of
the
Court.
If
a
true
Copy
of
an
made
before
the
Chief
Iustice
of
this
Court
be
produced
at
a
Trial
't
is
not
sufficient
to
convict
a
Man
of
Perjury
.
This
is
not
like
the
Case
of
Perjury
assigned
in
an
Answer
in
taken
in
the
Country
,
for
that
is
under
the
Parties
Hand
,
but
here
is
nothing
under
the
Defendant's
Hand
,
and
therefore
the
Commissioners
ought
to
be
in
the
Court
to
prove
him
to
be
the
Man
.
The
Court
were
equally
divided
:
The
Chief
Iustice
and
Iustice
were
of
Opinion
that
it
was
not
Evidence
to
convict
the
Defendant
of
Perjury
;
it
might
have
been
otherwise
upon
the
Return
of
a
Master
of
for
he
is
upon
his
Oath
,
and
is
therefore
presumed
to
make
a
good
Return
;
but
Commissioners
are
not
upon
Oath
,
they
pen
the
Depositions
according
to
the
best
of
their
skill
,
and
a
man
may
call
himself
by
another
name
before
them
without
any
offence
.
The
Commissioners
cannot
be
mistaken
in
the
Oath
,
tho'
they
may
not
know
the
person
;
for
this
Court
may
be
so
mistaken
in
those
who
make
here
,
but
not
in
the
Oath
;
if
the
Commissioners
or
the
Clerk
to
the
Commission
had
been
here
,
they
would
have
been
good
Evidence
.
If
an
be
made
before
a
Iustice
of
the
Peace
of
a
Robbery
as
enjoyned
by
the
Statute
,
if
you
will
convict
the
person
of
Perjury
you
must
prove
the
swearing
of
the
The
Attorney
General
perceiving
the
Opinion
of
the
Court
,
rather
than
the
Plaintiff
should
be
nonsuit
,
because
no
Evidence
could
be
given
,
offered
to
enter
a
which
the
Court
said
could
not
be
done
,
because
the
Iury
were
sworn
;
but
he
insisted
upon
it
and
said
he
would
cause
it
to
be
entred
.
AN
Information
was
exhibited
against
him
by
the
Attorney
General
upon
the
Statute
of
This
Statute
is
confirmed
by
that
of
with
an
Addition
of
a
farther
punishment
,
which
is
to
make
a
Fine
to
the
King
.
The
Information
sets
forth
that
the
Defendant
did
walk
about
the
Streets
armed
with
Guns
,
and
that
he
went
into
the
Church
of
St.
in
the
time
of
Divine
Service
with
a
Gun
to
terrifie
the
King's
Subjects
This
Case
was
tryed
at
the
Bar
,
and
the
Defendant
was
acquitted
.
The
Chief
Iustice
said
that
the
meaning
of
the
Statute
of
was
to
punish
People
who
go
armed
to
terrifie
the
Kings
Subjects
.
'T
is
likewise
a
great
Offence
at
the
Common
Law
,
as
if
the
King
was
not
able
or
willing
to
protect
his
Subjects
;
and
therefore
this
Act
is
but
an
affirmance
of
that
Law
,
and
it
having
appointed
a
Penalty
this
Court
can
inflict
no
other
Punishment
than
what
is
therein
directed
.
was
suffered
and
a
Writ
of
Error
was
brought
about
five
years
since
to
reverse
it
,
and
Iudgment
was
given
for
the
Reversal
;
and
it
was
now
moved
to
set
aside
that
Reversal
,
because
there
was
no
against
the
Tertenants
who
argued
for
the
Reversal
,
said
that
the
want
of
a
must
be
either
in
Law
or
in
Fact
;
it
cannot
be
Error
in
Law
,
for
that
must
appear
upon
the
Record
it self
which
it
doth
not
here
.
It
cannot
be
Error
in
Fact
,
because
there
is
no
necessity
of
such
a
Writ
,
't
is
only
discretionary
in
the
Court
,
and
not
But
on
the
other
side
it
was
insisted
,
that
the
Court
cannot
proceed
to
examine
Errors
before
a
is
awarded
to
the
Tertenants
for
they
may
have
a
Matter
to
plead
in
Barr
to
the
Writ
,
as
a
Release
,
and
the
Party
cannot
be
restored
to
all
which
he
hath
lost
by
the
suffering
of
the
Recovery
,
unless
the
Defendant
be
brought
in
upon
the
The
only
Question
is
whether
this
Iudgment
be
well
given
without
a
The
Secondary
hath
reported
that
the
Practice
is
so
.
Then
as
to
the
Ojection
,
that
such
a
is
not
but
only
discretionary
;
't
is
quite
otherwise
,
for
't
is
not
only
a
cautionary
Writ
as
all
other
but
't
is
a
legal
caution
which
in
a
manner
makes
it
necessary
.
'T
is
true
,
if
there
had
been
a
Iudgment
corruptly
obtained
this
Court
might
have
set
it
aside
;
but
if
't
is
a
doubt
whether
it
may
be
vacated
but
according
to
the
Forms
and
Methods
of
Law
.
BAron
and
Feme
brought
an
Action
on
the
Case
for
Words
spoken
of
the
Wife
:
The
Declaration
was
,
that
the
Defendant
having
some
discourse
with
another
person
called
,
the
Wife
and
that
and
concluded
The
Plaintiff
had
a
Verdict
,
and
it
was
now
moved
in
arrest
of
Iudgment
,
for
that
the
Words
were
not
actionable
without
alledging
special
damage
.
But
it
was
answered
that
the
Action
was
well
brought
.
To
say
,
is
actionable
without
alledging
special
damage
,
because
the
person
by
such
means
will
lose
the
Communication
and
Society
of
his
Neighbours
.
As
to
the
Conclusion
't
is
good
,
for
if
she
survive
the
Husband
the
Damages
will
go
to
her
,
and
so
are
all
the
Presidents
.
The
Words
are
actionable
:
And
three
Iustices
were
of
Opinion
that
the
Conclusion
of
the
Declaration
was
as
it
ought
to
be
,
which
Iustice
denied
;
for
if
an
Innkeepers
Wife
be
called
and
the
House
loses
the
Trade
,
the
Husband
hath
an
injury
by
the
Words
spoken
of
his
Wife
,
but
the
Declaration
must
not
conclude
HE
bought
a
Monster
in
the
which
was
a
Man
of
that
Country
,
who
had
the
perfect
Shape
of
a
Child
growing
out
of
his
Breast
as
an
Excrescency
,
all
but
the
Head
.
This
Man
he
brought
hither
and
exposed
to
the
sight
of
the
People
for
Profit
.
and
was
baptized
,
and
was
detained
from
his
Master
,
who
brought
a
the
Sheriff
returned
that
he
had
replevied
the
Body
,
but
doth
not
say
,
the
Body
in
which
Sir
claimed
a
Property
;
whereupon
he
was
ordered
to
amend
his
Return
,
and
then
the
Court
of
bailed
him
AN
Appeal
of
Murder
was
tried
in
against
three
persons
and
the
Count
was
that
did
assault
the
Husband
of
the
Appellant
and
wounded
him
in
of
which
Wound
he
did
languish
and
dye
in
and
that
were
assisting
The
Iury
found
a
special
Verdict
in
which
the
Fact
appeared
to
be
,
that
gave
the
Wound
,
and
that
were
assisting
The
first
Exception
to
this
Verdict
was
,
that
the
Count
and
the
Matter
therein
alledged
must
be
certain
,
and
so
likewise
must
the
Verdict
,
otherwise
no
Iudgment
can
be
given
;
but
here
the
Verdict
finding
that
another
person
gave
the
Stroak
,
and
not
that
person
against
whom
the
Appellant
had
declared
,
't
is
directly
against
her
own
shewing
.
This
Fact
was
tried
by
a
Iury
of
when
it
ought
to
have
been
tried
by
a
Iury
of
The
Court
answered
to
the
first
Exception
,
that
it
was
of
no
force
,
and
that
the
same
Objection
may
be
made
to
an
Indictment
,
where
in
an
Indictment
if
one
gives
the
Stroak
and
another
is
abetting
,
they
are
both
principally
and
equally
guilty
;
and
an
Indictment
ought
to
be
as
certain
as
a
Count
in
an
Appeal
.
As
to
the
second
Exception
,
't
is
a
good
Trial
by
a
Iury
of
alone
,
and
this
upon
the
Statute
of
the
Words
of
which
Statute
are
,
'T
is
true
that
at
the
Common
Law
if
a
Man
had
received
a
mortal
Wound
in
one
County
,
and
died
in
another
,
the
Wife
or
next
Heir
had
their
Election
to
bring
an
Appeal
in
either
County
,
but
the
Trial
must
be
by
a
Iury
of
both
Counties
.
But
now
that
mischief
is
remedied
by
this
Statute
,
which
doth
not
only
provide
that
an
Appeal
shall
be
brought
in
the
County
where
the
Party
but
that
it
shall
be
prosecuted
,
which
must
be
to
the
end
of
the
Suit
.
AN
Indictment
was
brought
against
the
Defendants
setting
forth
,
that
a
Conventicle
was
held
at
a
certain
place
,
and
that
they
a
certain
person
to
swear
that
several
Men
were
then
present
,
who
really
were
at
that
time
at
another
place
.
They
were
found
guilty
,
and
a
Writ
of
Error
was
brought
to
reverse
the
Iudgment
;
the
Error
assigned
was
,
that
the
Indictment
doth
not
set
forth
,
that
any
Oath
was
made
,
so
it
could
not
be
Subornation
.
There
is
a
difference
between
the
persuading
of
a
man
to
swear
falsly
and
Subornation
it self
,
for
an
Indictment
for
Subornation
always
concludes
'T
is
not
enough
to
say
a
Man
suborned
another
to
commit
a
Perjury
,
but
he
must
shew
what
Perjury
it
is
,
which
cannot
be
without
an
Oath
;
for
an
Indictment
cannot
be
framed
for
such
an
Offence
unless
it
appear
that
the
thing
was
false
which
he
was
perswaded
to
swear
.
The
Question
therefore
is
,
If
the
person
had
sworn
what
the
Defendants
had
persuaded
him
to
do
,
whether
that
had
been
Perjury
.
There
is
a
difference
when
a
Man
swears
a
thing
which
is
true
in
Fact
,
and
yet
he
doth
not
know
it
to
be
so
,
and
to
swear
a
thing
to
be
true
which
is
really
false
;
the
first
is
Perjury
before
God
,
and
the
other
is
an
Offence
of
which
the
Law
takes
notice
.
But
the
Indictment
was
quashed
,
because
the
Words
were
left
out
They
held
that
if
the
Return
had
been
right
upon
the
File
,
the
Record
should
be
amended
by
it
.
THE
Case
was
this
A
Man
seised
in
Fee
had
Issue
two
Sons
;
he
devised
all
his
Land
to
his
eldest
Son
,
and
if
he
die
without
Heirs
Males
then
to
his
other
Son
in
like
manner
.
The
Question
was
,
Whether
this
was
an
Estate
Tail
in
the
eldest
Son
.
'T
is
plain
the
Word
which
properly
creates
an
Estate
Tail
is
left
out
;
but
the
intent
of
the
Testator
may
be
collected
out
of
his
Will
that
he
designed
an
Estate
Tail
;
for
without
this
Devise
it
would
have
gone
to
his
second
Son
,
if
the
first
had
died
without
Issue
.
'T
is
therefore
an
Estate
Tail
.
That
on
Mr.
Attorny
moved
that
this
Court
would
award
Execution
upon
the
Defendant
,
who
was
a
Souldier
,
and
was
condemned
for
the
same
at
the
Affizes
at
and
reprieved
,
and
that
he
might
be
executed
at
where
the
Garrison
then
was
The
Chief
Iustice
in
some
heat
said
,
that
the
Motion
was
irregular
,
for
the
Prisoner
was
never
before
the
Court.
Mr.
Attorny
then
moved
for
a
and
on
the
Souldier
was
brought
to
the
Barr
,
and
Mr.
Attorny
moved
it
again
.
But
it
was
affirmed
by
the
Chief
Iustice
and
Iustice
that
it
could
not
be
done
by
Law
,
for
the
Prisoner
being
condemned
in
and
reprieved
by
the
Iudge
to
know
the
Kings
Pleasure
,
and
now
brought
hither
cannot
be
sent
into
another
County
to
be
executed
;
it
may
be
done
in
by
the
Prerogative
of
this
Court
which
sits
in
that
County
,
but
no
where
else
but
in
the
proper
County
where
the
Trial
and
Conviction
was
;
so
the
Prisoner
was
committed
to
the
and
the
Record
of
his
Conviction
was
not
filed
.
But
it
was
the
King's
Will
that
this
Man
should
be
executed
at
where
the
Garrison
was
,
that
by
this
Example
other
Souldiers
might
be
deterred
from
running
from
their
Colours
.
Robert
Wright
Common
Pleas
Henry
Beddingfield
Edward
Herbert
Common
Pleas
Francis
Wythens
The
same
day
of
after
this
Removal
the
Souldier
was
brought
again
to
the
Barr
,
and
upon
the
Motion
of
Mr.
Attorny
was
ordered
by
the
new
Chief
Iustice
to
be
executed
at
which
was
done
accordingly
A
Writ
of
Error
was
brought
upon
a
Iudgment
given
in
this
Court
returnable
in
Parliament
,
which
was
Prorogued
from
the
day
of
to
the
day
of
moved
,
that
it
might
be
discharged
;
for
it
could
not
be
a
to
this
Execution
,
because
there
was
a
which
intervened
between
the
of
the
Writ
of
Error
On
the
other
side
,
it
was
said
that
the
Proclamation
was
no
Record
,
it
only
shews
the
present
Intention
of
the
King
,
which
he
may
recal
at
any
time
.
But
the
Court
made
no
Rule
.
IN
a
special
Action
on
the
Case
,
the
Plaintiffs
declared
,
that
in
the
Reign
of
there
was
a
Society
of
Merchants
Adventurers
in
and
that
afterwards
Queen
did
by
her
Letters
Patents
incorporate
them
by
the
Name
of
and
gave
them
Priviledge
to
trade
into
the
Country
belonging
to
the
Duke
of
prohibiting
all
others
not
free
of
that
Company
;
by
virtue
whereof
they
did
trade
into
those
parts
,
and
had
thereby
great
Priviledges
and
Advantages
;
that
the
Defendant
not
being
free
of
the
said
Company
did
trade
into
those
Parts
without
their
authority
,
and
imported
Goods
from
thence
into
this
Kingdom
The
Defendant
pleaded
as
to
and
as
to
the
other
places
he
pleaded
the
Statute
of
The
Plaintiff
demurred
,
and
the
Defendant
joined
in
Demurrer
.
This
Case
was
now
argued
by
Councel
on
both
sides
.
The
Councel
for
the
Plaintiff
in
their
Arguments
made
these
Points
.
What
Power
the
King
had
by
his
Prerogative
to
restrain
his
Subjects
from
trading
to
particular
places
.
Admitting
he
had
such
a
Prerogative
,
whether
an
Action
on
the
Case
will
lie
.
As
to
the
first
Point
it
was
said
,
that
all
Trades
must
be
under
some
Regulation
,
and
that
the
Subject
hath
not
an
absolute
power
to
trade
without
the
leave
of
the
King
;
for
it
is
said
in
our
Books
which
is
meant
of
Merchant
Strangers
in
Amity
with
us
,
and
must
be
by
the
King
.
Now
if
Merchants
Strangers
may
be
prohibited
from
coming
into
by
the
same
reason
the
Kings
Subjects
may
be
restrained
to
go
out
of
the
Kingdom
;
and
for
that
purpose
the
Writ
of
was
framed
which
is
grounded
upon
the
Common
Law
,
and
not
given
by
any
particular
Statute
.
The
Kings
Prerogative
in
this
and
such
like
Cases
is
so
much
favoured
by
Law
,
that
he
may
by
his
Privy
Seal
command
any
of
his
Subjects
to
return
out
of
a
Foreign
Nation
or
seize
their
Lands
.
The
first
Statute
which
regulates
Trade
is
,
that
which
confined
the
Staple
to
certain
places
that
persons
might
not
go
about
in
Companies
to
trade
without
the
King's
Licence
;
and
from
thence
came
and
if
such
were
kept
without
the
King
's
Grant
a
would
lie
against
them
who
continued
it
,
and
the
People
,
who
frequented
those
Markets
were
punishable
by
Fine
.
The
Law
is
plain
that
the
King
is
sole
Iudge
of
the
place
where
Markets
shall
be
kept
;
for
if
he
grant
one
to
be
kept
in
such
a
place
which
may
not
be
convenient
for
the
Country
,
yet
the
Subjects
can
go
to
no
other
,
and
if
they
do
,
the
Owner
of
the
Soil
,
where
they
meet
,
is
liable
to
an
Action
at
the
Suit
of
the
Grantee
of
the
Market
.
A
Custom
to
restrain
a
Man
from
the
exercising
of
his
Trade
in
a
hath
been
adjudged
good
as
to
have
a
Bake-house
in
such
a
Mannor
and
that
no
other
should
use
that
Trade
there
.
And
as
a
Man
may
be
restrained
by
Custom
so
he
may
restrain
himself
from
using
of
a
Trade
in
a
certain
place
as
if
he
promise
upon
a
valuable
consideration
not
to
use
the
Trade
of
a
Mercer
in
such
a
place
.
And
't
is
very
necessary
that
Trade
should
in
some
measure
be
restrained
so
as
to
be
managed
only
by
Freemen
,
because
't
is
of
more
advantage
to
the
King
that
it
should
be
carried
on
by
a
Company
(
especially
in
who
may
manage
it
with
Order
and
Government
,
that
is
,
by
some
power
to
restrain
particular
persons
from
that
Liberty
which
otherwise
they
would
use
;
and
therefore
such
Companies
have
always
power
to
make
By
Laws
to
regulate
Trade
,
which
is
the
cheif
End
of
their
Incorporation
.
And
if
such
Corporations
have
power
to
judge
and
determine
who
are
fit
persons
to
exercise
Trades
within
their
Iurisdiction
,
the
King
hath
certainly
a
greater
Prerogative
to
determine
which
of
his
Subjects
are
fit
to
trade
to
particular
places
exclusive
from
the
Rest
.
That
the
Governors
of
Corporations
have
taken
upon
them
such
Authority
appears
in
who
served
an
Apprentiship
to
a
Taylor
in
and
was
refused
by
the
Mayor
to
be
made
a
Freeman
of
that
City
,
which
shews
that
if
a
person
be
not
qualified
he
may
be
excluded
.
This
is
a
very
ancient
Company
,
for
Cloth
was
first
brought
into
this
Realm
in
the
Reign
of
and
was
always
under
some
Government
.
My
Lord
quoting
the
Parliament
Roll
of
wherein
the
Commons
pray
that
all
Merchants
might
import
or
export
their
Goods
to
any
place
(
except
such
as
were
of
the
Staple
)
paying
the
Customs
,
takes
notice
that
this
Prayer
was
made
against
the
Companies
which
prohibited
such
Trading
.
This
shews
that
even
in
those
days
Trade
was
under
a
Regulation
.
gave
Licence
to
all
Merchants
Denizens
,
who
were
not
Artificers
to
go
into
for
Wines
,
and
that
Aliens
might
bring
Wines
into
this
Realm
,
and
that
all
Merchandizes
might
be
carried
into
and
exported
from
thence
,
which
shews
that
without
such
leave
persons
could
not
trade
thither
,
and
Denizens
could
not
import
Wines
from
those
parts
.
The
Case
of
sole
Printing
is
a
Manufacture
,
and
so
not
in
the
power
of
the
King
to
restrain
,
for
't
is
a
piece
of
Art
and
Skill
;
but
when
once
it
becomes
of
publick
concernment
then
the
Prerogative
interposeth
.
'T
is
a
vain
Objection
to
say
,
that
every
Subject
hath
a
Right
to
trade
,
which
Right
is
grounded
upon
the
Common
Law
;
for
that
Law
can
give
no
such
Authority
against
any
King's
Prohibition
;
For
suppose
a
foreign
Prince
should
forbid
the
Subjects
of
to
trade
within
his
Dominions
,
what
Right
can
the
Common
Law
give
them
so
to
do
?
Or
suppose
any
Foreign
Prince
should
restrain
Trade
to
a
peculiar
number
of
Men
exclusive
from
the
rest
,
how
would
the
Common
Law
help
them
?
So
that
if
this
Trade
depend
upon
the
Will
of
a
Foreign
Prince
,
why
may
not
the
King
of
prohibit
his
Subjects
from
using
of
it
?
He
who
hath
the
sole
power
of
making
Leagues
and
Treaties
is
the
foundation
of
Trade
,
and
can
that
Right
which
the
Subject
hath
at
the
Common
Law
be
independent
on
this
?
The
Question
now
is
about
the
Regulation
of
a
Trade
by
Letters
Patents
which
the
King
hath
power
to
do
.
By
his
Prerogative
for
the
appointment
of
the
Staple
is
not
by
vertue
of
any
Act
of
Parliament
,
but
't
is
the
effect
of
Leagues
and
Treaties
.
By
Acts
of
Parliament
which
have
allowed
such
Grants
,
and
from
other
Acts
which
take
notice
of
the
Kings
Prerogative
.
a
Fellowship
of
Merchant
Adventurers
in
made
an
Order
to
restrain
all
persons
to
sell
at
such
a
Mart
without
their
consent
.
The
Statute
of
recites
Letters
Patents
of
the
Incorporation
to
certain
Merchants
to
trade
into
recites
the
like
Letters
Patents
granted
to
the
Merchants
of
by
the
Queen
The
next
thing
to
be
considered
is
,
what
Acts
of
Parliament
have
either
taken
away
or
abridged
the
King's
Prerogative
.
The
first
is
That
all
Merchants
shall
stay
here
the
meaning
of
which
hath
been
already
explained
.
The
second
Statute
is
,
that
which
the
Defendant
hath
pleaded
.
In
answer
to
which
't
is
to
be
observed
that
a
Preamble
of
any
Statute
Law
is
the
best
Expositor
of
it
,
because
it
usually
mentions
the
occasion
of
its
making
;
and
this
Act
amongst
other
Things
and
Petitions
recites
,
that
the
King
had
granted
to
the
Men
of
that
the
Staple
of
Wool
should
be
at
which
Town
had
ordered
that
no
Wool
should
be
sold
to
Strangers
,
which
was
much
to
the
damage
of
trading
Merchants
.
Now
what
is
the
Remedy
in
this
Case
?
Why
the
King
grants
that
they
may
buy
Wool
at
such
prizes
as
they
can
agree
,
and
carry
it
where
they
please
,
let
the
Seas
be
open
,
So
that
this
Act
had
only
a
prospect
to
remedy
the
abuse
of
the
Staple
,
which
hath
in
no
sort
abridged
the
King's
Prerogative
.
If
there
should
be
no
Regulation
of
Trade
by
the
Power
and
Prerogative
of
the
King
,
what
would
become
of
the
Company
,
when
it
might
be
in
the
power
of
one
Man
to
ruine
all
the
Effects
of
our
Merchants
there
by
a
Misdemeanour
?
Therefore
it
ought
to
be
looked
after
very
strictly
.
All
Arguments
which
may
be
deduced
from
Monopolies
will
have
no
influence
upon
this
Case
,
because
this
Grant
doth
not
barr
the
Subject
of
any
precedent
Right
.
As
to
the
second
Point
't
is
not
to
be
doubted
,
but
that
since
they
are
abridged
in
Interest
an
Action
on
the
Case
will
lie
.
These
Letters
Patents
extend
to
a
great
part
of
and
the
consequence
of
this
Iudgment
(
if
for
the
Plaintiffs
)
must
be
,
that
all
Merchants
trading
thither
must
be
of
this
Company
,
or
excluded
from
Trade
in
those
Parts
.
Now
supposing
that
several
Men
may
be
of
this
Company
,
't
is
impossible
that
all
Merchants
,
who
trade
into
those
parts
of
should
be
Members
thereof
;
for
where
should
they
meet
to
make
By-Laws
?
Neither
is
it
probable
that
other
Merchants
who
live
remote
from
will
adventure
their
Stock
and
Estates
with
the
Citizens
.
What
will
become
of
the
Clothiers
,
must
they
sell
their
Cloth
at
the
Rate
imposed
by
this
Company
?
The
Question
is
not
whether
the
King
may
restrain
his
Subjects
from
trading
to
particular
places
,
or
that
the
Trade
of
the
People
is
not
under
the
Government
of
the
King
,
nor
whether
he
may
make
Leagues
and
Treaties
,
for
't
is
certainly
his
Prerogative
;
nor
how
the
Staple
was
formerly
,
which
hath
been
long
since
discontinued
and
not
easie
to
find
out
;
nothing
will
follow
from
either
of
these
considerations
which
may
be
of
any
use
in
this
Case
.
But
the
Question
is
whether
the
King
can
make
such
a
Grant
excluding
all
others
from
trading
;
for
't
is
expresly
provided
by
the
Statute
of
that
no
shall
take
of
another
any
Fine
or
Imposition
,
for
his
Liberty
to
buy
and
sell
.
The
Case
of
the
Company
is
not
like
this
,
for
they
who
argued
then
did
admit
,
that
if
the
Grant
to
that
Company
had
restrained
the
Subjects
from
trading
to
Countries
it
had
been
void
;
but
it
only
prohibiting
a
Trade
with
Infidels
with
whom
we
should
have
no
Communication
without
the
King's
Licence
lest
we
should
forsake
the
Catholick
Faith
and
turn
Infidels
,
for
that
reason
it
was
held
good
.
And
such
a
Licence
was
seen
by
my
Lord
as
he
tells
us
in
which
was
granted
in
the
Reign
of
But
a
Patent
to
exclude
all
others
is
void
both
by
the
Common
Law
and
the
Statute
Law
.
As
to
the
Argument
that
the
Common
Law
gives
no
Priviledge
to
Trade
against
the
King's
Prohibition
,
because
Foreign
Princes
may
restrain
the
Trade
to
a
particular
number
of
Men
;
can
any
Inference
be
made
from
thence
that
the
Kings
of
may
therefore
restrain
Trade
to
a
like
number
of
Men
?
All
Patents
prohibiting
Trade
are
void
.
If
a
Man
would
give
give
Lands
in
Mortmain
,
or
would
have
a
new
Way
by
taking
in
the
Common
High-way
,
this
may
be
done
with
the
King's
Licence
,
and
the
Escheator
or
Sheriff
is
to
examine
the
Fact
and
if
it
be
such
a
Licence
is
void
as
being
prejudicial
to
the
Subject
,
and
if
't
is
void
a
Grant
to
restrain
Trade
must
be
so
.
All
Engrossing
and
Monopolizing
are
void
by
the
Common
Law
,
the
one
is
a
Species
of
the
other
;
't
is
defined
by
my
Lord
to
be
an
allowance
by
the
King
's
Grant
to
any
person
for
the
sole
buying
or
selling
of
any
thing
restraining
all
others
of
that
Liberty
which
they
had
before
the
making
of
such
a
Grant
and
this
he
tells
us
is
against
the
ancient
and
fundamental
Rights
of
this
Kingdom
.
This
Patent
agreeth
exactly
with
that
Definition
,
and
therefore
it
must
be
against
Law
;
't
is
against
an
Act
of
Parliament
which
gives
Liberty
to
Merchants
to
buy
and
to
sell
in
this
Realm
without
disturbance
;
and
't
is
expresly
against
the
Statute
of
which
declares
all
such
Letters
Patents
to
be
void
.
That
which
may
give
some
colour
to
make
such
Grants
good
,
is
a
pretence
of
Order
and
Government
in
Trade
;
but
my
Lord
was
of
Opinion
,
that
it
was
a
hinderance
to
both
,
and
in
the
end
it
produced
Monopolies
.
There
is
a
great
difference
between
the
King's
Grant
and
his
Prohibition
;
for
the
one
vests
an
Interest
,
which
is
not
done
by
the
other
,
and
all
Prohibitions
determine
by
the
King's
death
;
but
Grants
still
remain
in
force
.
IN
Trespass
for
the
taking
of
a
Horse
the
Defendant
justified
,
for
that
of
a
Close
and
that
the
Defendant
as
his
Servant
took
the
Horse
in
that
Close
And
upon
a
Demurrer
to
this
Plea
,
for
that
the
Defendant
did
not
shew
what
Title
had
to
this
Close
.
The
Councel
for
the
Defendant
insisted
,
that
it
being
in
Trespass
,
't
is
sufficent
to
say
that
because
in
this
Case
possession
is
a
good
Title
against
all
others
.
But
it
might
have
been
otherwise
in
Replevin
.
The
Title
of
the
Close
is
not
in
question
,
is
only
an
inducement
to
the
Plea
,
and
not
the
substance
thereof
,
which
is
the
taking
of
the
Horse
;
and
the
Law
is
plain
,
that
where
the
interest
of
the
Land
is
not
in
question
,
a
Man
may
justifie
upon
his
own
possession
against
a
wrong-doer
.
on
the
other
side
alledged
that
would
bring
the
Title
of
the
Land
in
question
:
But
the
Court
gave
Iudgment
for
the
Defendant
.
Writ
of
Error
was
brought
to
reverse
a
Iudgment
given
in
the
in
Replevin
for
taking
of
the
Plaintiff's
Sheep
.
The
Defendant
avowed
the
taking
The
Plaintiff
replied
,
that
the
Lands
where
,
were
Copy-hold
,
held
of
the
Manor
of
the
Custom
whereof
was
,
that
every
Tenant
of
the
said
Manor
to
any
Copyhold
Estate
should
pay
a
years
Value
of
the
Land
for
a
Fine
as
the
said
Land
is
worth
And
upon
a
Demurrer
,
the
Question
was
,
Whether
this
be
a
good
Plea
or
not
,
as
't
is
pleaded
?
If
it
be
good
as
pleaded
,
then
whether
such
a
Custom
may
be
supported
by
Law
?
It
was
for
the
Plaintiff
in
the
Writ
of
Error
now
,
and
in
Term
following
argued
that
it
was
not
a
good
Custom
.
The
substance
of
whose
Arguments
were
,
that
Fines
are
either
certain
or
incertain
;
those
which
are
incertain
are
arbitrary
,
and
therefore
cannot
be
due
of
Common
Right
,
nor
by
Custom
;
for
there
can
be
no
Custom
for
an
incertain
Fine
,
and
such
is
this
Fine
;
for
the
value
of
the
Land
cannot
be
known
,
because
as
this
Custom
is
pleaded
,
it
doth
not
appear
whether
it
shall
be
a
years
value
past
or
to
come
,
at
the
time
of
the
admittance
of
the
Tenant
.
A
Custom
to
assess
for
a
Fine
upon
an
admittance
,
that
is
to
say
,
being
two
years
Rent
of
a
Tenant
of
the
yearly
value
of
is
no
good
Custom
A
Lease
is
made
for
so
many
years
as
a
third
person
shall
name
;
this
is
altogether
incertain
but
when
the
Term
is
named
then
't
is
a
good
Lease
,
but
this
can
be
done
but
once
.
How
can
this
Fine
be
assessed
?
It
cannot
be
by
Iury
,
for
then
it
stands
in
need
of
the
Common
Law
,
and
will
be
therefore
void
;
for
a
Custom
must
have
nothing
to
support
it
but
usage
.
Neither
can
this
be
a
good
Custom
as
't
is
pleaded
,
because
all
Customs
are
made
up
of
repeated
Acts
and
Vsages
,
and
therefore
in
pleading
them
,
it
must
be
laid
time
out
of
mind
,
which
is
not
done
here
;
for
hath
a
respect
to
future
admissions
,
and
are
not
to
those
which
are
past
.
Here
is
no
time
laid
when
this
Fine
shall
be
paid
;
for
't
is
said
which
last
words
must
be
taken
to
relate
to
the
value
of
the
Land
,
and
not
to
the
time
when
the
Fine
shall
be
paid
;
so
that
if
there
be
such
a
Custom
,
which
is
and
not
fully
set
forth
and
expressed
,
the
Common
Law
will
not
help
it
by
any
Construction
.
Point
.
Whether
such
a
Custom
can
be
good
by
Law
?
And
they
argued
that
it
cannot
.
Where
the
Fine
is
certain
the
Lord
may
refuse
to
admit
without
a
tender
of
it
,
upon
the
prayer
of
the
person
to
be
admitted
but
where
't
is
incertain
,
the
Lord
is
first
to
admit
the
Tenant
,
and
then
to
set
the
Fine
,
the
reasonableness
whereof
is
to
be
determined
by
Iudges
before
whom
the
Case
shall
depend
,
or
upon
Demurrer
,
or
by
a
Iury
upon
proofs
of
the
yearly
value
of
the
Land
;
but
for
non
payment
of
an
unreasonable
Fine
the
Lord
cannot
enter
.
The
Law
admits
of
no
Custom
to
be
good
,
but
such
as
is
very
certain
;
for
incertainty
in
a
Custom
as
well
as
in
a
Grant
makes
both
void
;
and
therefore
't
is
held
a
void
Custom
for
an
Infant
to
make
a
Feoffment
when
he
can
measure
an
Ell
of
Cloth
.
It
may
be
objected
,
that
the
meaning
of
which
saying
must
be
by
something
which
is
certain
;
for
if
this
Rule
should
be
taken
to
be
an
answer
to
incertainties
,
it
would
destroy
all
the
Books
,
which
say
a
Custom
must
be
certain
.
The
Law
is
very
clear
that
a
Custom
is
void
for
the
incertainty
;
therefore
this
Custom
must
be
void
,
for
the
value
of
Land
is
the
most
incertain
thing
in
nature
,
and
therefore
Perjury
will
not
lye
for
swearing
to
the
value
.
and
Mr.
The
chief
Objection
is
the
incertainty
of
this
Custom
;
now
if
a
Custom
as
incertain
as
this
,
hath
been
held
good
in
this
Court
,
't
is
a
good
Authority
to
support
this
Custom
.
And
as
to
that
it
was
said
that
a
Custom
for
a
person
(
whom
a
Copy
holder
should
name
)
to
have
his
Land
after
his
death
,
and
that
he
should
pay
a
Fine
for
his
admitance
this
was
adjudged
a
good
Custom
by
the
Court
of
and
affirmed
upon
a
Writ
of
Error
in
this
Court
,
:
It
was
the
Case
of
cited
in
Afterwards
the
first
Iudgment
was
affirmed
,
and
all
the
Court
held
the
Custom
to
be
a
good
Custom
.
JVdgment
was
had
in
Debt
upon
a
Bond
against
Father
and
Son
,
and
afterwards
the
Father
alone
brought
a
Writ
of
Error
,
and
the
Error
assingned
was
,
that
his
Son
was
under
Age
;
but
because
the
Son
did
not
join
in
the
Errors
,
the
Court
ordered
the
Writ
to
be
abated
.
If
a
be
brought
against
a
Bishop
and
others
,
and
Iudgment
be
against
them
all
,
they
must
likewise
all
join
in
a
Writ
of
Error
,
unless
it
be
where
the
Bishop
claims
only
as
Ordinary
.
'T
is
true
this
is
against
the
Opinion
of
my
Lord
in
his
Abridgment
,
who
puts
the
Case
,
that
where
a
was
brought
against
four
Executors
,
who
pleaded
the
Iury
find
Assets
in
the
Hands
of
two
of
them
,
and
that
the
other
two
bring
a
Writ
of
Error
,
and
altho'
at
the
opening
of
the
Case
it
was
held
that
the
Writ
should
abate
for
that
reason
,
because
brought
only
by
two
,
yet
he
says
the
Iudgment
was
afterwards
affirmed
,
and
the
Writ
held
good
.
But
there
is
a
difference
where
a
Writ
of
Error
is
brought
by
the
Plaintiffs
in
the
original
Action
,
and
when
by
the
Defendants
;
for
if
two
Plaintiffs
are
barred
by
an
erronious
Iudgment
,
and
afterwards
bring
a
Writ
of
Error
,
the
Release
of
one
shall
bar
the
other
,
because
they
are
both
actors
in
a
personal
thing
to
charge
another
,
and
it
shall
be
presumed
a
Folly
in
him
to
join
with
another
,
who
might
release
all
.
But
where
the
Defendants
bring
a
Writ
of
Error
't
is
otherwise
;
for
it
being
brought
to
discharge
themselves
of
a
Iudgment
,
the
Release
of
one
cannot
barr
the
other
,
because
they
have
not
a
joint
Interest
but
a
joint
burthen
,
and
by
Law
are
compelled
to
join
in
Errors
.
COvenant
by
an
Assignee
of
an
Assignee
of
Lands
which
were
exchanged
;
the
Breach
assigned
was
,
that
a
Stranger
did
enter
There
was
a
Uerdict
for
the
Plaintiff
,
and
it
was
now
moved
in
Arrest
of
Iudgment
,
that
the
Plaintiff
had
not
shewed
a
sufficient
breach
,
for
he
sets
forth
the
Entry
of
a
Stranger
,
but
doth
not
shew
what
Title
,
and
it
may
be
he
had
a
Title
under
the
Plaintiff
himself
,
after
the
Exchange
made
;
and
to
prove
this
,
the
Case
of
was
cited
in
point
,
and
of
that
Opinion
was
all
the
Court.
It
was
said
in
this
Case
,
that
an
Exchange
ought
to
be
executed
by
either
Party
in
their
Life-time
,
or
else
it
is
void
.
THE
Original
in
Trespass
was
and
the
Plaintiff
declared
and
had
Iudgment
in
the
and
a
Writ
of
Error
was
brought
in
this
Court
,
and
the
variance
between
the
Original
and
Declaration
was
assigned
for
Error
,
and
that
one
was
not
warranted
by
the
other
.
But
Serjeant
argued
,
that
because
the
Original
was
certified
three
Terms
since
,
and
no
Continuances
between
it
and
the
Declaration
,
therefore
that
could
not
be
the
Original
to
this
Action
,
and
that
the
Court
might
for
that
reason
intend
a
Verdict
without
an
Original
,
which
is
helped
by
the
Statute
of
Jeofails
.
But
he
argued
that
where
the
Original
varies
from
the
Declaration
,
and
is
not
warranted
by
it
,
't
is
not
aided
by
this
Statute
:
Iudgment
was
affrmed
.
TRespass
for
entring
of
his
House
and
taking
of
a
Silver
Tankard
.
The
Defendant
made
conusance
as
Bayliff
of
the
Dean
and
Chapter
of
for
that
the
place
where
was
within
the
Iurisdiction
of
the
Leet
of
the
said
Dean
,
who
was
seised
of
a
Court
Leet
which
was
held
there
such
a
day
,
And
that
the
Iury
did
present
the
Plaintiff
(
being
a
for
melting
of
stinking
Tallow
,
to
the
annoyance
of
the
Neighbours
,
for
which
he
was
amerced
,
and
that
the
Amerciament
was
affered
to
which
not
being
paid
,
the
Defendant
by
a
of
the
said
Dean
and
Chapter
,
distreined
the
Tankard
,
The
Plaintiff
replied
that
he
did
melt
Tallow
to
the
annoyance
of
the
Neighbours
,
And
upon
a
Demurrer
to
this
Replication
,
it
was
argued
this
Term
by
Mr.
for
the
Defendant
,
and
for
the
Plaintiff
:
and
afterwards
in
by
Mr.
and
Serjeant
for
the
Defendant
It
was
said
for
the
Defendant
,
that
a
Presentment
in
a
Court
Leet
which
concerns
the
person
(
as
in
this
Case
)
and
not
the
Free
hold
,
was
not
traversable
,
and
that
the
Amerciament
was
a
Duty
vested
in
the
Lord
for
which
he
may
distrain
,
or
bring
an
Action
of
Debt
.
But
on
the
other
side
it
was
said
,
that
if
such
a
Presentment
is
not
traversable
,
the
party
hath
no
remedy
;
't
is
contrary
to
the
Opinion
of
in
Dyer
who
affimed
the
Law
to
be
that
it
was
traversable
,
and
that
if
upon
such
a
Presentment
a
Fine
should
be
imposed
erroniously
,
it
may
be
avoided
by
Plea
,
and
this
agrees
with
the
second
Resolution
in
's
Case
It
was
objected
to
the
Plea
,
that
it
was
not
good
,
for
it
sets
forth
,
that
the
Plaintiff
was
amerced
,
and
that
it
was
affered
at
the
Court
,
and
so
he
hath
confounded
the
Office
of
the
Iurors
and
Affearers
together
,
which
he
ought
not
to
do
,
for
he
should
be
amerced
to
a
certain
Sum
,
and
not
in
general
,
which
Sum
may
be
mitigated
or
affered
by
others
.
If
it
had
been
a
Fine
,
it
need
not
be
affered
,
because
that
is
imposed
by
the
Court
;
but
this
is
an
Amerciament
which
is
the
act
of
the
Jury
,
and
therefore
it
must
be
affered
.
The
chiefest
Exception
was
to
the
matter
of
the
Warrant
,
the
Defendant
sets
forth
that
he
seised
from
the
Dean
and
Chapter
;
whereas
he
ought
to
shew
it
was
directed
to
him
from
the
Steward
of
the
Court
,
and
then
to
set
forth
the
Warrant
,
without
which
he
cannot
justifie
to
distrain
for
an
Amerciament
.
And
of
this
Opinion
was
the
whole
Court
,
and
therefore
Iudgment
was
given
for
the
Plaintiff
,
in
If
it
had
been
in
Replevin
where
the
Defendant
made
cognizance
in
the
right
of
the
Lord
,
it
might
be
well
enough
as
here
pleaded
;
but
where
't
is
to
justifie
by
way
of
excuse
,
there
you
must
averr
the
Fact
and
alledge
it
to
be
done
,
and
set
forth
the
Warrant
it self
,
and
the
taking
for
a
Bayliff
of
a
Liberty
cannot
distrain
for
an
Amerciament
by
virtue
of
his
Office
,
but
he
must
have
a
Warrant
from
the
Steward
or
Lord
of
the
Leét
for
so
doing
.
The
other
Exception
that
the
Amerciament
ought
to
be
to
a
Sum
,
the
Presidents
are
otherwise
;
for
an
Amerciament
is
well
enough
,
but
the
Warrant
is
always
set
forth
.
THE
Defendant
was
indicted
for
speaking
of
scandalous
words
of
Sir
a
Justice
of
the
Peace
for
the
Defendant
said
that
an
Indictment
would
not
lye
for
these
words
,
because
not
spoken
to
the
Party
in
the
exceution
of
his
Office
,
but
behind
his
back
;
it
will
not
lye
for
irreverent
words
,
but
for
Libels
and
Writings
,
because
such
are
publick
,
but
words
are
private
offences
.
But
the
Court
being
of
Opinion
that
an
Indictment
would
lye
where
an
Action
would
not
,
because
it
respects
the
publick
Peace
:
and
that
an
Action
would
not
lye
in
this
Case
,
unless
the
party
had
a
particular
loss
,
and
therefore
it
hath
been
held
not
to
be
actionable
to
call
a
Iustice
of
Peace
Fool
,
Ass
,
Coxcomb
.
He
then
took
Exceptions
to
the
Form
of
the
Indictment
.
There
is
laid
where
the
Defendant
did
inhabit
,
which
is
expresly
required
by
the
Statute
of
And
by
the
Statute
of
which
gives
the
Iudges
power
to
amend
Records
in
affirmations
of
Iudgments
,
such
defects
which
are
named
in
the
Statute
of
are
excepted
;
and
therefore
where
a
Writ
of
Error
was
brought
to
reverse
an
Outlawry
upon
the
Statute
of
for
Perjury
the
Defendant
was
Indicted
by
the
Name
of
Nicholas
Leech
Aldgate
,
and
did
not
shew
in
what
County
was
;
and
for
this
cause
it
was
reversed
.
The
Caption
is
and
the
word
is
left
out
.
It
was
the
Opinion
of
Iustice
that
it
ought
to
be
for
otherwise
it
may
be
the
Peace
of
King
The
Councel
on
the
other
side
said
,
that
it
was
a
new
Doctrine
,
that
the
King
shall
not
have
the
same
Remedy
by
an
Indictment
which
the
Subject
may
have
by
an
Action
;
What
is
the
meaning
of
the
words
of
all
Commissions
,
As
to
the
first
Exception
,
they
said
that
the
Indictment
was
certain
enough
,
for
the
Defendant
is
laid
to
be
in
the
West-Riding
of
To
the
second
Exception
,
they
said
that
is
well
enough
,
for
it
cannot
be
intended
upon
this
Indictment
that
they
were
Iustices
to
preserve
the
Peace
in
any
other
Kings
Reign
,
and
what
was
quoted
out
of
is
but
the
Opinion
of
one
single
Iudge
.
This
is
a
Scandal
upon
the
Government
,
and
't
is
as
much
as
to
say
that
the
King
hath
appointed
an
ignorant
Man
to
be
a
Iustice
of
Peace
,
for
which
an
Indictment
will
lye
.
And
of
that
Opinion
was
the
whole
Court
,
and
gave
Iudgment
accordingly
.
A
Writ
of
Covenant
did
bear
the
first
day
of
and
it
was
taken
by
A
Writ
of
Error
was
brought
to
reverse
this
Fine
,
and
the
Error
assigned
was
,
that
the
Cognizor
died
after
the
Caption
,
and
before
the
Enrolment
at
the
King's
Silver
Office
.
It
was
argued
by
the
Councel
for
the
Plaintiff
in
the
Writ
of
Error
,
that
a
Fine
is
said
to
be
levied
when
the
Writ
of
Covenant
is
returned
,
and
the
Concord
and
King's
Silver
(
which
is
an
antient
Revenue
of
the
Crown
duly
entred
;
for
though
the
Cognisor
dieth
afterwards
,
the
Fine
is
good
,
and
the
Land
passeth
;
but
if
the
King's
Silver
be
not
entred
,
the
Fine
may
be
reversed
by
Writ
of
Error
;
for
it
is
an
Action
,
and
Iudgment
,
and
the
death
of
either
Party
abates
it
.
If
it
should
be
objected
that
this
cannot
be
assigned
for
Error
,
because
't
is
against
the
Record
,
which
is
'T
is
true
,
an
Error
cannot
be
assigned
against
the
very
essence
of
a
Record
,
but
in
the
matter
of
time
it
may
,
and
so
't
is
in
this
Case
.
'T
is
like
who
was
indicted
for
a
Burglary
supposed
to
be
done
and
upon
the
Evidence
it
appeared
to
be
done
and
though
he
was
acquitted
of
the
Indictment
for
that
reason
,
because
the
Iudgment
relates
to
the
day
of
the
Indictment
,
yet
it
was
resolved
by
all
the
Iudges
of
that
the
very
day
needs
not
be
set
down
in
the
Indictment
;
for
be
it
before
or
after
the
Offence
,
the
Iury
ought
to
find
according
to
the
truth
of
the
Case
upon
the
Evidence
,
for
they
are
sworn
This
must
be
assigned
for
Error
,
for
if
the
contrary
be
said
't
is
against
the
Record
,
the
having
retorned
that
the
Fine
was
taken
which
could
not
be
in
Term
,
for
that
ended
otherwise
't
is
repugnant
to
it self
It
was
argued
,
that
this
is
not
assignable
for
Error
't
is
true
,
if
the
Party
had
died
before
the
Entry
of
the
King's
Silver
,
it
had
been
Error
,
but
if
afterwards
't
is
not
so
.
Thus
was
the
Case
of
which
was
,
Husband
and
Wife
levied
a
Fine
of
the
Lands
of
the
Wife
,
and
this
was
by
in
the
Lent
Vacation
,
she
being
then
but
years
of
Age
;
the
King's
Silver
was
entred
in
Term
before
,
and
she
died
in
the
week
;
and
upon
a
Motion
made
the
first
day
of
Term
to
stay
the
engrossing
of
the
Fine
,
it
was
denied
by
the
Court
,
for
they
held
it
to
be
a
good
Fine
.
Another
reason
why
this
is
not
assignable
for
Error
,
is
because
't
is
directly
against
the
Record
,
which
is
of
Term
,
and
can
be
of
no
other
Term
;
and
to
prove
this
he
cited
Case
,
where
a
Writ
of
Error
was
brought
to
reverse
a
Fine
taken
before
Esq
;
in
his
Circuit
,
he
being
then
one
of
the
Iustices
of
the
and
the
was
returned
for
he
was
Knighted
and
made
Chief
Baron
the
Eerm
following
;
the
Fine
passed
and
this
was
afterwards
assigned
for
Trror
,
that
he
who
took
the
Caption
was
not
a
Knight
,
but
it
being
directly
against
the
Record
,
they
would
not
intend
him
to
be
the
same
person
to
whom
the
Writ
was
directed
.
Afterwards
the
Fine
was
affirmed
UPon
a
Trial
at
Bar
in
Ejectment
for
Lands
in
the
Case
was
thus
in
the
year
made
a
Settlement
by
Lease
and
Release
to
her self
for
Life
,
then
to
Trustees
to
support
contingent
Remainders
,
then
to
her
first
,
second
and
third
Son
,
in
Tail
Male
,
then
to
in
Tail
Male
,
with
divers
Remainders
over
.
It
was
objected
at
the
Tryal
,
that
she
had
no
power
to
make
such
Settlement
,
because
in
the
year
her
Husband
had
setled
the
Lands
in
question
upon
her
for
Life
,
and
upon
the
Issue
of
his
Body
,
and
for
want
of
such
Issue
,
then
upon
in
Tail
Male
,
with
several
Remainders
over
,
the
Remainder
to
in
Fee
,
Proviso
that
upon
the
tender
of
a
Guinea
to
by
the
said
the
Limitations
as
to
him
should
be
void
.
having
afterwards
made
a
Lease
of
this
Land
,
to
try
the
Title
,
the
Trustees
brought
an
Ejectment
;
but
because
the
tender
of
the
Guinea
could
not
be
proved
,
there
was
a
Verdict
for
the
Defendant
.
And
now
Mr.
would
have
given
that
Verdict
in
Evidence
at
this
Trial
,
but
was
not
suffered
by
the
Court
,
for
if
one
Man
hath
a
Title
to
several
Lands
,
and
if
he
should
bring
Ejectments
against
several
Defendants
,
and
recover
against
one
,
he
shall
not
give
that
Verdict
in
Evidence
against
the
rest
,
because
the
Party
against
whom
that
Verdict
was
had
may
be
relieved
against
it
,
if
't
is
not
good
,
but
the
rest
cannot
,
tho'
they
claim
under
the
same
Title
,
and
all
make
the
same
defence
.
So
if
two
Tenants
will
defend
a
Title
in
Ejectment
,
and
a
Verdict
should
be
had
against
one
of
them
,
it
shall
not
be
read
against
the
other
,
unless
by
Rule
of
Court
.
But
if
an
Ancestor
hath
a
Verdict
,
the
Heir
may
give
it
in
Evidence
,
because
he
is
privy
to
it
;
for
he
who
produceth
a
Verdict
must
be
either
party
or
privy
to
it
,
and
it
shall
never
be
received
against
different
persons
,
if
it
doth
not
appear
that
they
are
united
in
Interest
.
Therefore
a
Verdict
against
shall
never
be
read
against
for
it
may
happen
that
one
did
not
make
a
good
defence
,
which
the
other
may
do
.
The
tender
of
the
Guinea
was
now
proved
.
Robert
Sawyer
Thomas
Powis
William
Williams
AN
Inquifition
was
taken
in
the
second
year
of
this
King
,
under
the
Great
Seal
of
by
which
it
was
found
that
the
Office
of
Marshal
of
the
did
concern
the
Administration
of
Iustice
,
and
that
Mr.
was
seised
thereof
in
Fee
,
and
that
upon
his
Marriage
he
had
setled
the
said
Office
upon
Sir
and
Mr.
and
their
Heirs
in
Truff
that
they
should
permit
him
to
execute
the
same
during
his
Life
,
That
the
said
Trustees
had
neglected
to
give
their
attendance
,
or
to
execute
the
said
Office
themselves
,
that
this
Canveyance
was
made
by
Mr.
without
the
notice
of
this
Court
;
that
he
received
the
Profits
,
and
afterwards
granted
the
said
Office
to
for
Life
and
his
Wife
had
obtained
a
Iudgment
in
this
Court
against
and
had
sued
forth
Erecution
for
the
Debt
and
Damages
,
for
which
he
was
committed
to
the
custody
of
the
said
and
being
so
in
Execution
did
go
at
large
.
They
find
that
had
not
sufficient
to
answer
and
his
Wise
for
the
said
Debt
,
whereupon
they
impleaded
Mr.
in
the
to
answer
as
superior
;
that
at
the
Trial
Mr.
gave
this
secret
Deed
of
Settlement
in
Evidence
,
whereupon
the
Plaintiffs
in
that
Action
were
non-suited
They
find
that
went
out
of
the
said
Office
,
and
the
Trustees
neglecting
the
execution
thereof
,
Mr.
granted
the
same
to
for
Life
;
that
during
the
time
he
executed
this
Office
,
one
was
convicted
of
Forgery
,
and
commited
to
his
Custody
,
and
that
he
permitted
him
voluntarily
to
Escape
,
by
which
the
said
Office
was
forfeited
to
the
King
.
The
King
had
granted
the
Office
to
the
Lord
and
Mr.
come
in
and
plead
that
Mr.
was
seised
in
Fee
,
and
that
he
made
a
Settlement
of
the
Office
upon
his
Marriage
with
Mrs.
with
whom
he
had
upon
them
and
their
Heirs
in
trust
,
in
the
Inquisition
,
and
that
he
did
execute
the
Office
by-their
permission
.
pleads
and
admits
the
Grant
to
Sir
and
the
other
Trustee
,
bearing
date
such
a
day
,
but
saith
,
that
the
next
day
afterwards
,
day
of
a
Trust
of
the
said
Office
was
declared
by
another
Deed
,
to
himself
for
Life
,
with
Remainders
over
,
and
that
by
virtue
thereof
,
and
the
consent
of
the
Trustees
,
he
took
upon
him
the
execution
of
the
said
Office
,
and
was
thereof
possessed
either
by
himself
or
his
Deputy
,
until
the
time
of
the
Inquisition
taken
;
then
he
traversed
that
the
Escapes
were
voluntary
(
but
did
not
answer
the
concealing
of
the
Grant
)
and
concludes
,
that
the
King
Hands
may
be
amoved
,
The
Attorny
General
demurred
to
the
Plea
of
the
Trustees
,
he
likewise
demurred
to
the
Plea
of
Mr.
and
took
issue
that
the
Escapes
were
voluntary
.
It
was
argued
this
Term
and
following
,
by
Council
on
both
sides
,
and
as
to
the
matter
of
Law
,
they
made
these
Points
.
That
this
Office
cannot
be
granted
in
Trust
.
The
Escapes
found
in
the
Inquisition
,
and
not
answered
by
the
Trustees
,
are
sufficient
causes
of
Forfeiture
of
this
Offce
.
Another
Point
was
raised
,
whether
the
assignment
of
this
Office
to
Trustees
(
admitting
it
could
be
so
granted
)
and
their
declaration
of
the
Trust
,
did
create
an
Estate
at
will
in
Mr.
If
it
was
a
Tenancy
at
will
.
Then
whether
Mr.
had
done
any
thing
to
determine
his
will
?
Whether
he
can
by
Law
make
a
Deputy
?
Whether
the
assigning
of
this
Trust
without
giving
notice
thereof
to
this
Court
,
be
a
Forfeiture
?
This
Office
cannot
be
granted
in
Trust
,
because
't
is
a
personal
Inheritance
,
and
will
not
pass
by
such
Conveyances
as
are
used
to
convey
Lands
;
so
is
my
Lord
of
's
Case
,
in
which
it
was
held
that
a
Covenant
to
stand
seised
of
an
Office
,
is
void
;
neither
can
Mr.
take
upon
him
the
execution
of
this
Office
by
the
consent
of
the
Trustees
,
for
that
cannot
be
without
Deed.
If
the
Law
should
be
otherwise
this
inconvenience
would
follow
,
might
grant
the
Office
to
another
,
without
leave
of
the
Court
,
and
the
Grantee
might
suffer
voluntary
Escapes
,
having
no
valuable
Interest
to
answer
the
parties
injured
,
who
must
then
sue
Mr.
and
he
hath
no
Estate
in
him
,
for
he
hath
conveyed
the
Inheritance
to
the
Trustees
,
and
if
they
should
be
likewise
sued
,
no
recovery
could
be
against
them
,
because
they
are
only
nominal
?
'T
is
almost
like
the
Grant
of
an
Office
of
chief
Prothonotary
of
the
Court
of
to
two
persons
for
Life
which
cannot
be
good
,
because
the
Rolls
of
the
Court
cannot
be
in
the
keeping
of
two
persons
at
one
time
.
It
hath
been
adjudged
that
this
very
Office
cannot
be
granted
for
years
,
because
't
is
an
Office
of
Trust
and
daily
Attendance
:
and
such
a
termor
for
years
may
dye
intestate
,
and
then
it
would
be
in
suspence
'till
Administration
is
committed
,
which
is
the
act
of
another
Court
.
Point
;
That
the
Escapes
found
in
the
Inquisition
and
the
non-attendance
of
the
Trustees
,
are
sufficient
cause
of
Forfeiture
.
'T
is
true
,
at
the
Common-Law
Debt
upon
an
Escape
will
not
lie
against
the
Goaler
,
that
Action
was
afterwards
given
by
the
Statute
of
For
before
that
Act
,
the
only
remedy
against
the
Goaler
was
to
bring
an
Action
on
the
Case
against
him
,
founded
upon
a
wrong
done
:
But
now
Debt
will
lie
,
and
if
the
party
is
not
sufficient
at
the
time
of
the
Escape
,
The
Marshal
who
executes
this
Office
,
be
it
by
right
or
wrong
,
is
answerable
to
the
King
and
his
People
for
Escapes
:
If
they
are
voluntary
,
't
is
a
Forfeiture
of
his
Office
,
nay
,
if
a
Deputy
suffer
such
Escapes
,
't
is
a
Forfeiture
by
the
Principal
,
unless
such
Deputation
be
made
for
Life
,
and
then
the
Grantee
for
Life
only
forfeits
the
Office
.
As
to
the
non-attendance
of
the
Trustees
,
if
Mr.
be
Tenant
at
will
,
and
hath
granted
this
Office
to
another
for
Life
,
this
is
a
determination
of
the
Tenancy
at
will
,
and
a
Forfeiture
as
to
him
.
Now
this
Grantee
for
Life
cannot
be
said
to
be
a
Deputy
,
for
such
a
Grantee
himself
cannot
make
a
Deputy
,
and
therefore
a
Tenant
at
will
cannot
do
it
.
But
admitting
he
should
be
Deputy
,
yet
a
Forfeiture
by
him
is
a
Forfeiture
by
his
Superior
;
and
therefore
Mr.
's
tenancy
at
will
being
gone
,
the
Trustees
ought
to
attend
,
and
their
non-attendance
ought
to
be
a
Forfeiture
.
The
non-attendance
of
an
Officer
who
was
only
a
Searcher
in
a
Port
Town
,
was
adjudged
a
Forfeiture
;
much
greater
is
the
Fault
of
that
Officer
who
hath
the
administration
of
Iustice
,
if
he
do
not
give
his
attendance
.
if
they
do
not
attend
,
by
consequence
they
cannot
act
in
the
Office
,
and
non-feazance
is
as
sufficient
a
cause
of
Forfeiture
as
any
other
mis-behaviour
whatsoever
.
But
if
the
Trustees
had
given
attendance
,
they
are
persons
inexperient
,
and
therefore
incapable
to
execute
this
Office
,
for
which
they
may
be
lawfully
refused
by
this
Court
.
chiefly
insisted
upon
the
point
of
Pleading
,
that
the
matter
found
by
the
Inquisition
was
not
answered
by
the
Plea
.
First
,
he
excepted
that
the
Defendant
had
not
by
his
Plea
entituled
himself
to
any
Estate
in
this
Office
,
and
therefore
he
could
not
traverse
the
Title
of
the
King
,
without
making
a
Title
to
himself
,
for
why
should
he
desire
that
the
Kings
Hands
may
be
amoved
,
and
he
restored
to
his
Office
,
if
he
hath
not
shewen
a
Title
to
it
?
His
pleading
of
this
Deed
of
Trust
by
which
he
is
permitted
to
receive
the
Profits
,
during
Life
cannot
create
such
an
Estate
in
him
,
as
will
be
executed
by
the
Statute
of
Vses
;
therefore
he
can
have
no
Estate
for
Life
;
for
if
a
Man
is
seised
in
Fee
of
an
Estate
,
and
makes
a
Declaration
thereof
in
Trust
for
this
is
no
colour
to
make
an
Estate
for
Life
in
The
Defendant
hath
therefore
no
more
than
a
Trust
in
this
Office
,
which
is
nothing
in
the
Eye
of
the
Law
,
and
for
which
there
is
no
remedy
but
by
so
that
being
only
he
hath
neither
He
cannot
be
Tenant
at
will
,
for
he
is
not
made
so
by
the
Deed
of
Trust
.
There
is
a
great
deal
of
difference
between
Evidence
and
Pleading
;
for
this
very
Deed
may
be
an
Evidence
of
an
Estate
at
will
,
but
't
is
not
so
in
pleading
;
therefore
he
ought
to
have
pleaded
that
he
was
possessed
of
the
Office
,
and
took
the
Profits
,
but
he
having
otherwise
pleaded
,
and
not
entituled
himself
to
any
Estate
therein
,
he
ought
to
be
laid
aside
as
an
incompetent
person
.
The
Plea
of
Sir
is
likewise
insufficient
;
for
it
sets
forth
the
Deed
of
Settlement
,
(
the
Defendant
was
possessed
of
the
Office
Now
an
Office
is
a
thing
which
lies
in
Grant
,
and
cannot
be
transferred
from
one
to
another
without
Deed
,
and
here
is
no
Deed
pleaded
;
and
as
no
Estate
at
will
can
be
granted
of
an
Office
without
Deed
,
so
likewise
there
cannot
be
a
deputation
of
such
Offce
without
it
.
If
then
there
can
be
no
Tenant
at
Will
of
an
Office
,
but
by
Deed
,
and
no
such
Deed
is
pleaded
,
then
Mr.
had
no
power
to
make
a
Deputation
to
but
neither
Tenant
at
will
,
nor
Tenant
for
Life
can
make
a
Deputy
,
if
in
the
very
Grant
made
to
them
,
there
is
not
an
express
Clause
for
the
execution
of
the
Office
The
substance
of
all
which
is
,
First
,
here
is
no
Tenant
at
will
:
But
admitting
him
to
be
so
,
he
hath
no
authority
to
make
a
Deputy
,
and
if
he
should
appoint
a
Deputy
,
he
executes
the
Office
without
Authority
,
and
may
suffer
Escapes
.
Lastly
,
by
pleading
of
this
Deed
,
he
hath
alledged
that
the
Estate
was
in
the
Trustees
,
and
that
they
permitted
him
to
enjoy
the
Office
he
did
execute
it
,
and
receive
the
Profits
;
now
this
is
too
general
,
and
an
issue
cannot
be
taken
upon
such
a
Plea
;
he
should
have
pleaded
positively
,
that
it
was
demised
to
him
at
will
,
and
that
he
made
a
Deputy
;
and
then
also
the
authority
in
is
against
him
,
where
't
is
held
,
that
the
Marshal
of
the
may
grant
the
Office
for
Life
,
but
cannot
give
power
to
such
grantee
to
make
a
Deputy
.
Now
if
a
Tenant
for
Life
cannot
make
a
Deputy
,
certainly
a
Tenant
at
will
hath
no
power
so
to
do
.
But
suppose
a
Deputy
might
be
made
,
his
neglect
in
the
execution
of
the
Office
,
shall
make
a
Forfeiture
of
the
Estate
of
the
Grantee
for
Life
.
It
cannot
be
reasonably
objected
in
this
Case
,
that
't
is
any
hardship
for
Mr.
to
lose
this
Office
for
any
defect
in
Pleading
;
for
admitting
the
Plea
to
be
good
;
yet
there
is
a
cause
of
Forfeiture
,
because
the
Marshal
of
the
being
a
ministerial
Officer
,
is
required
by
Law
to
be
a
person
of
such
Ability
as
to
answer
all
Escapes
,
that
so
Men
may
have
the
benefit
of
their
Suits
,
for
otherwise
he
having
nothing
to
answer
they
may
lose
their
Debts
.
Now
here
by
a
secret
Grant
Mr.
hath
conveyed
the
Estate
out
of
himself
,
and
yet
still
continues
Officer
in
possession
,
by
which
means
the
People
are
deprived
of
the
Remedy
which
the
Law
provides
for
them
,
and
this
is
a
sufficient
cause
of
Forfeiture
.
Then
as
to
the
Trustees
,
they
have
not
said
any
thing
of
the
Escapes
;
't
is
true
,
Mr.
hath
traversed
those
which
are
alledged
to
be
voluntary
,
but
that
signifies
nothing
to
them
,
because
they
cannot
take
any
benefit
by
the
Plea
of
another
,
for
every
one
must
stand
and
fall
by
his
own
Plea
.
If
therefore
their
non-attendance
be
a
Forfeiture
,
the
entruders
shall
not
help
them
,
because
they
come
in
without
any
colour
of
Right
.
But
the
Council
on
the
other
side
argued
this
last
Point
first
,
which
was
thus
A
Man
seised
of
the
Inheritance
of
the
Office
of
Marshal
of
this
Court
,
conveys
it
in
Trust
,
the
enjoys
it
and
receives
the
Profits
;
the
Question
now
is
,
whether
the
non-attendance
of
the
Trustees
,
being
never
required
by
the
Court
,
be
a
Forfeiture
of
this
Office
?
And
as
incident
to
this
Question
,
it
was
debated
whether
Mr.
was
Tenant
at
will
T
is
no
Forfeiture
,
for
they
are
not
bound
to
attend
.
It
cannot
be
denied
but
that
this
Office
doth
concern
the
Administration
of
Iustice
,
but
't
is
to
be
considered
what
Estate
Mr.
hath
in
it
He
had
once
an
Estate
in
Fee
,
but
if
it
had
been
for
Life
or
in
Tail
,
it
may
be
setled
as
this
is
done
,
but
not
for
years
,
because
it
may
then
come
to
an
Administrator
.
If
Mr.
be
the
then
he
hath
an
Estate
of
which
the
Law
takes
notice
,
for
he
may
be
a
Iuror
at
the
Common
Law
.
'T
is
plain
that
he
hath
an
Estate
created
by
operatian
of
the
Law
,
for
he
is
Tenant
at
Will
,
and
for
that
reason
the
attendance
of
the
Trustees
is
not
necessary
;
but
if
the
Estate
had
been
directly
granted
to
them
,
then
the
Office
had
been
forfeited
for
Non-attendance
.
It
cannot
be
denied
,
but
that
this
Office
may
be
granted
at
Will
,
for
so
is
Sir
now
if
it
may
be
granted
at
Will
by
the
Possessor
,
it
may
likewise
be
so
granted
by
him
who
hath
an
Estate
created
by
the
Law
,
for
and
in
this
Case
no
Inconveniency
would
happen
;
for
if
the
Will
be
determined
then
the
Grantor
is
the
Officer
.
When
Mr.
had
assigned
this
Office
to
the
Trustees
,
and
they
by
a
subsequent
Deed
had
declared
it
to
be
in
trust
for
him
,
and
that
he
should
take
the
Profits
during
life
,
he
hath
thereby
a
legal
Estate
at
Will
;
for
a
by
Deed
is
a
Tenant
at
Will
.
It
hath
been
objected
,
that
a
Tenancy
at
Will
of
an
Office
is
void
,
and
to
prove
this
a
Case
in
was
cited
but
the
reason
of
that
Case
is
guided
by
the
particular
nature
of
that
Office
which
could
not
be
aliened
without
the
consent
of
the
King
.
If
this
Office
is
not
alienable
in
its
nature
then
Mr.
hath
still
the
Fee-simple
,
but
that
will
not
be
admitted
.
But
this
is
not
only
a
bare
Estate
at
Will
,
but
a
Trust
for
Life
,
and
such
a
Trust
which
hath
a
legal
construction
for
if
a
Feoffment
be
made
in
Trust
that
he
should
convey
the
Estate
to
another
which
the
Feoffee
afterwards
refused
to
do
,
the
may
bring
an
Action
against
him
;
so
if
he
should
be
returned
on
a
Iury
't
is
no
Exception
to
say
that
he
hath
not
and
therefore
he
is
not
an
incompetent
person
to
have
the
charge
of
Prisons
if
he
may
be
impannelled
on
a
Iury
to
try
men
for
their
Lives
.
Then
as
to
the
first
Question
upon
the
last
point
,
whether
Mr.
had
done
any
thing
to
determine
his
Tenancy
at
Will
.
The
Grant
of
this
Office
by
him
to
will
not
amount
to
a
determination
of
his
Will
,
because
't
is
a
void
Grant
.
'T
is
true
,
this
is
denied
by
my
Lord
in
his
Comment
upon
where
he
saith
What
ground
he
had
for
such
an
Opinion
is
not
known
;
the
Year
Books
quoted
in
the
Margent
will
not
warrant
it
,
for
they
are
in
no
sort
parallel
.
That
Case
in
the
is
no
more
than
Tenant
at
Will
cannot
grant
over
his
Estate
,
because
he
hath
no
certain
or
fixed
Interest
in
it
;
and
much
to
the
same
purpose
is
the
Book
of
there
cited
But
suppose
this
to
be
a
void
Grant
,
and
to
amount
to
a
determination
of
the
Tenancy
at
Will
,
yet
if
the
Trustees
had
no
notice
of
it
,
that
shall
not
determine
their
Estates
.
A
Devise
to
an
Executor
that
he
shall
have
the
oversight
of
the
Testators
Estate
till
his
Daughter
should
come
of
Age
the
Executor
made
a
Lease
at
Will
rendring
Rent
;
before
the
year
expired
the
Daughter
came
of
age
,
to
whom
the
Tenant
at
Will
attorned
;
the
Executor
brought
an
Action
of
Debt
against
him
for
the
Rent
arrear
,
it
was
held
that
this
Attornment
to
the
Daughter
was
no
determination
of
his
Will
,
for
it
would
be
of
ill
consequence
to
the
Lessor
if
such
a
Tenant
should
determine
his
Will
a
day
or
two
before
the
end
of
the
year
,
who
had
enjoyed
all
the
Profits
of
the
Land
.
Whether
he
may
make
a
Deputy
?
'T
is
true
,
a
judicial
Officer
cannot
make
a
Deputy
unless
he
hath
a
Clause
in
his
Patent
to
enable
him
,
because
his
Judgment
is
relied
on
in
matters
relating
to
his
Office
,
which
might
be
the
reason
of
the
making
of
the
Grant
to
him
;
neither
can
a
Ministerial
Officer
depute
one
in
his
stead
,
if
the
Office
be
to
be
performed
by
him
in
person
,
but
when
nothing
is
required
but
a
Superintendency
in
the
Office
he
may
make
a
Deputy
.
This
appears
more
evident
in
the
common
Case
of
a
Sheriff
,
who
is
an
Officer
made
by
the
Kings
Letters
Patents
,
and
't
is
not
said
that
he
shall
execute
his
Office
yet
he
may
make
a
Deputy
,
which
is
the
Vnder-Sheriff
,
against
whom
Actions
may
be
brought
by
the
Parties
grieved
.
And
such
a
Deputy
may
be
made
without
a
Deed
,
for
he
claims
no
Interest
in
the
Office
but
as
a
Servant
,
and
therefore
where
an
Action
on
the
Case
was
brought
against
the
Deputy
of
a
Sheriff
for
an
Escape
,
who
pleaded
that
the
Sheriff
made
him
his
Deputy
to
take
Bail
of
Prisoners
,
and
that
he
took
Bond
,
and
shewed
no
Deed
of
Deputation
,
yet
the
Plea
was
held
good
upon
a
Demurrer
.
Whether
the
Assignment
of
this
Trust
without
giving
notice
to
this
Court
be
a
Forfeiture
?
Tenant
in
Fee
simple
may
do
it
,
for
he
hath
a
power
so
to
do
by
reason
of
the
Dignity
of
his
Estate
.
He
who
grants
this
Office
without
acquainting
of
this
Court
therewith
must
remain
an
Officer
still
,
and
is
subject
to
all
Duties
and
Attendance
till
the
Court
hath
notice
of
the
Grant
.
But
there
is
no
occasion
of
acquainting
the
Court
in
this
Case
,
for
upon
the
Grant
made
to
the
Trustees
by
Mr.
he
is
still
the
Officer
though
he
hath
not
the
same
Estate
.
It
was
objected
that
Sir
&c.
hath
not
said
any
thing
to
the
Escapes
;
but
that
doth
neither
concern
Mr.
or
the
Trustees
for
if
he
be
Tenant
at
Will
they
are
not
answerable
for
his
neglect
,
for
't
is
a
personal
in
him
If
Tenant
for
years
makes
a
Feoffment
't
is
a
Forfeiture
of
his
Estate
;
but
if
he
makes
a
Lease
and
Release
,
though
't
is
of
the
same
operation
,
yet
it
will
not
amount
to
a
Forfeiture
.
Now
if
any
Escapes
should
happen
there
is
a
plain
remedy
for
the
Parties
agrieved
;
for
if
Tenant
at
Will
remaineth
in
possession
of
an
Office
,
and
suffers
voluntary
Escapes
,
his
Office
shall
be
seised
into
the
Hands
of
this
Court
,
then
he
in
the
Reversion
must
make
his
Claim
,
and
when
that
is
done
,
he
is
an
Officer
and
this
was
the
Duke
of
Now
though
these
Escapes
are
found
by
the
Inquisition
to
be
voluntary
,
yet
they
are
answered
in
the
Plea
,
for
that
part
of
the
Inquisition
is
traversed
,
and
that
they
were
and
this
being
not
yet
tried
the
Court
cannot
give
Iudgment
thereon
.
If
there
be
many
negligent
Escapes
these
shall
not
amount
to
a
Forfeiture
;
as
if
a
Rebel
should
break
Prison
or
the
Prison
should
be
on
Fire
,
those
are
negligent
,
but
the
Officer
should
not
be
so
much
as
fined
.
But
if
it
should
be
a
Forfeiture
the
Neglect
must
be
particularly
alledged
,
for
the
Word
is
too
general
A
Man
was
indicted
for
using
of
a
Trade
not
being
an
against
the
Statute
of
And
now
a
Motion
was
made
to
quash
it
,
because
the
Act
gives
power
to
two
Iustices
of
the
Peace
,
to
hear
and
determine
Offences
committed
against
any
branch
thereof
,
either
by
Indictment
or
Information
before
them
in
their
Sessions
;
and
't
is
not
said
that
one
of
the
Iustices
,
before
whom
this
Indictment
was
taken
,
was
of
the
This
Objection
was
answered
by
the
Court
that
the
Sessions
cannot
be
kept
without
one
Iustice
of
the
The
Act
saith
&c.
and
't
is
not
averred
that
the
Trade
mentioned
in
the
Indictment
was
a
Trade
used
before
the
making
of
the
Act.
This
seemed
to
be
a
material
Objection
,
but
the
Indictment
was
quashed
for
misreciting
of
the
Statute
.
ERror
to
reverse
a
Fine
taken
by
Commission
,
and
the
Error
assigned
was
,
that
the
Cognizor
died
before
the
return
of
the
Writ
of
Covenant
.
But
this
Point
was
not
argued
,
because
Iustice
was
of
Opinion
that
the
Plaintiff
in
the
Errors
had
not
well
entituled
himself
by
the
Writ
;
for
it
was
brought
by
him
but
doth
not
shew
how
he
was
of
Kindred
.
To
this
Objection
Sir
the
Solicitor
General
,
replyed
,
that
if
a
Descent
be
from
twenty
Ancestors
't
is
not
necessary
to
say
,
that
he
was
Son
and
Heir
of
such
a
one
,
who
was
Son
and
Heir
of
such
a
one
,
and
so
to
the
twentieth
Ancestor
.
Agreable
to
this
are
all
the
Presidents
;
in
't
is
only
said
that
ERror
to
reverse
a
Iudgment
in
the
in
an
Action
of
Debt
upon
a
brought
by
Mr.
as
Executor
to
Sir
against
the
Countess
as
Administratrix
of
the
Earl
of
wherein
the
Plaintiff
sets
forth
a
Writing
by
which
the
Earl
had
given
power
to
Sir
to
be
the
Collector
and
Receiver
of
his
Mony
and
Rents
,
and
that
he
promised
to
allow
him
for
his
pains
,
and
in
default
of
payment
thereof
that
Sir
should
detein
the
same
,
which
Writing
was
in
these
Words
following
,
Edward
Biggs
The
Action
was
brought
for
being
his
Salary
for
three
quarters
of
a
year
,
and
Iudgment
by
It
was
argued
this
Term
,
and
in
Term
by
Councel
on
both
sides
.
It
was
agreed
on
all
sides
,
that
the
Earl
left
sufficient
Assets
to
satisfie
all
his
Bond
Creditors
,
but
not
enough
to
pay
Debts
upon
simple
Contract
.
First
it
was
said
for
the
Plaintiff
in
the
Errors
,
that
no
Action
of
Debt
will
lie
against
an
Executor
upon
a
because
the
Testator
might
have
waged
his
Law
,
but
this
was
not
much
insisted
on
.
That
admitting
an
Action
would
lye
,
yet
this
is
an
erronious
Iudgment
,
because
the
Suit
was
for
for
three
quarters
Salary
,
when
by
the
Writing
Sir
was
to
serve
the
Earl
a
whole
year
,
and
this
being
an
entire
Contract
shall
not
be
seperated
.
Therefore
he
cannot
be
well
entituled
to
the
Actionn
unless
his
Testator
had
served
a
year
,
and
he
had
averred
it
so
in
his
Declaration
.
As
where
a
Covenant
was
to
pay
for
copying
every
Quire
of
Paper
,
and
the
Breach
assigned
that
he
copyed
Quire
and
sheets
,
for
which
was
due
to
the
Plaintiff
;
't
is
true
,
he
had
Iudgment
,
but
it
was
reversed
because
it
was
an
entire
Covenant
of
which
no
apportionment
could
be
made
That
which
was
chiefly
insisted
on
was
,
to
make
these
words
amount
to
an
Obligation
,
that
so
it
might
be
satisfied
amongst
the
Bond
Creditors
.
But
those
who
argued
for
the
Plaintiff
in
the
Errors
said
,
that
it
cannot
be
an
Obligation
,
for
it
was
only
a
bare
Letter
of
Attorney
,
and
an
Authority
and
no
more
;
for
there
were
no
words
to
oblige
the
Earl
,
or
which
can
make
a
Warranty
,
and
therefore
if
the
Mony
was
not
received
,
the
Party
to
whom
the
Note
was
given
could
not
resort
back
to
him
,
who
made
it
,
had
they
been
both
living
,
neither
shall
the
Plaintiff
now
to
his
Administratrix
.
Like
the
common
Cases
of
the
assigning
of
Iudgment
,
if
the
Assignee
doth
not
receive
the
Mony
he
cannot
have
an
Action
against
the
Assignor
,
who
only
directs
and
appoints
him
so
to
do
.
But
on
the
other
side
the
second
Objection
was
thus
answered
,
That
this
being
only
an
Executory
thing
the
Plaintiff
may
now
bring
an
Action
for
so
long
time
as
his
Testator
served
,
and
this
may
be
apportioned
if
the
Law
should
be
otherwise
,
the
Case
of
all
Servants
would
be
bad
,
for
they
are
generally
hired
for
a
year
and
not
usually
serve
so
long
.
In
an
to
pay
for
a
years
board
,
and
the
Plaintiff
had
declared
only
for
three
quarters
of
a
year
,
but
yet
had
Iudgment
because
(
as
the
Book
saith
)
if
there
be
any
variance
in
the
Agreement
't
is
for
the
advantage
of
the
Defendant
.
Objection
answered
When
a
Man
is
indebted
to
another
by
simple
Contract
,
which
is
aknowledged
by
Deed
,
an
Action
of
Debt
will
lie
against
his
Executor
,
for
any
thing
which
is
under
Hand
and
Seal
will
amount
to
an
Obligation
especially
where
the
Debt
is
confessed
.
Now
there
are
words
in
this
Deed
to
shew
that
Mony
was
due
,
and
that
makes
it
a
Bond.
But
the
Court
was
of
Opinion
,
that
this
was
an
entire
Agreement
,
and
therefore
the
Action
not
well
brought
for
three
quarters
Salary
,
and
for
this
reason
the
Iudgment
was
reversed
,
AN
Action
on
the
Case
was
brought
for
scandalous
words
spoken
of
the
Plaintiff
,
who
declared
that
he
was
a
and
a
Freeman
of
the
City
of
and
that
he
got
great
Sums
of
Mony
by
buying
of
Timber
and
Materials
,
and
by
building
of
Houses
,
and
that
the
Defendant
having
discourse
of
him
and
of
his
Trade
spoke
these
words
,
There
was
a
Verdict
for
the
Plaintiff
,
and
a
Motion
was
now
made
in
arrest
of
Iudgment
,
for
that
a
Carpenter
was
not
a
Trade
within
the
Statute
of
Bankrupts
;
and
a
day
being
given
to
speak
to
it
again
,
argued
,
that
before
the
Statutes
made
against
Bankrupts
words
spoken
reflecting
upon
a
man
in
his
Trade
were
actionable
even
at
the
Common
Law
,
because
it
might
be
the
occasion
of
the
loss
of
his
Livelyhood
and
therefore
it
was
actionable
to
say
of
a
and
yet
a
was
not
within
the
Statutes
of
Bankrupcy
before
the
Act
of
therefore
the
Action
must
lie
at
the
Common
Law
,
because
words
disparage
him
in
his
Trade
.
But
the
Councel
for
the
Defendant
said
,
that
these
words
were
not
actionable
,
for
they
do
not
tend
to
his
disparagement
,
he
may
be
broke
and
yet
as
good
a
Carpenter
as
before
.
The
Case
of
one
in
this
Court
was
much
stronger
than
this
;
the
words
spoken
of
him
were
,
the
Plaintiff
had
Iudgment
,
but
it
was
arrested
.
builds
upon
the
Credit
of
other
men
,
and
so
long
as
the
words
do
not
touch
him
in
the
skill
and
knowledge
of
his
Profession
they
cannot
injure
him
.
Chief
Iustice
.
The
Credit
which
the
Defendant
hath
in
the
World
may
be
a
means
to
support
his
skill
,
for
he
may
not
have
an
opportunity
to
shew
his
Workmanship
without
those
Materials
,
for
which
he
is
entrusted
.
The
Iudges
were
divided
in
Opinion
,
two
against
two
,
and
so
the
Plaintiff
had
his
Iudgment
,
there
being
no
Rule
made
to
stay
it
,
so
that
he
had
his
Iudgment
upon
his
general
Rule
for
Iudgment
;
but
if
it
had
been
upon
a
Demurrer
or
Special
Verdict
,
then
it
would
have
been
adjourned
to
the
IN
an
Appeal
for
the
Murder
of
Auterfoits
convict
brought
by
his
Widow
The
Defendant
pleaded
that
he
was
indicted
for
the
said
Murder
at
the
Sessions-house
in
the
that
he
was
found
guilty
of
and
not
of
Murder
that
he
was
if
the
Court
would
have
admitted
him
,
and
that
he
is
the
same
person
,
To
this
Plea
the
Appellant
demurred
.
The
truth
of
this
Case
was
,
that
after
the
Conviction
and
before
the
Sentence
an
Appeal
was
brought
,
so
that
the
Defendant
had
not
an
opportunity
to
pray
his
Book
.
It
was
argued
by
Mr.
for
the
Appellant
,
and
by
Sir
for
the
Appellee
If
the
Statute
of
was
not
in
the
way
,
this
Plea
might
be
a
good
Barr
to
the
Appeal
,
because
before
the
making
of
that
Law
,
had
been
a
good
Plea
,
but
now
that
Statute
deprives
the
Defendant
of
that
benefit
;
for
't
is
enacted
,
Now
though
the
Party
be
neither
acquitted
or
attainted
,
but
is
only
convicted
of
Manslaughter
,
yet
the
word
in
this
Statute
signifies
the
same
with
and
this
appears
by
the
penning
of
the
Act
in
that
Clause
which
mentions
the
benefit
of
Clergy
,
Now
an
supposeth
a
for
one
is
the
consequence
of
the
other
,
and
if
it
should
not
signifie
the
same
thing
in
this
place
,
then
that
Clause
would
be
in
vain
,
because
if
it
should
be
taken
for
the
Iudgment
given
upon
the
Conviction
,
then
't
is
too
late
for
the
Party
to
have
any
benefit
of
his
Clergy
.
Thus
it
was
held
in
the
second
Resolution
of
that
the
word
in
this
very
Act
shall
not
be
intended
only
of
a
person
,
who
hath
Iudgment
of
Life
,
but
also
of
one
by
Confession
or
Verdict
.
'T
is
true
,
't
is
said
in
that
case
and
so
likewise
in
upon
an
Indictment
of
Murder
is
a
good
Bar
to
an
Appeal
at
the
Common
Law
,
as
well
as
if
the
Clergy
had
been
allowed
;
the
reason
may
be
because
in
both
those
Cases
the
Iudgments
were
by
Confession
,
so
that
the
Court
ought
to
have
granted
the
Clergy
;
but
this
is
a
Conviction
by
Verdict
which
alters
the
Case
.
is
a
good
Plea
at
the
Common
Law
in
all
other
Cases
(
Treason
only
excepted
)
at
this
day
.
it
appears
by
the
Statute
of
that
the
year
and
day
which
was
the
time
allowed
for
the
Appeal
,
and
in
which
time
the
Kings
Indictment
could
not
be
tried
was
an
usage
,
but
not
a
Law
,
therefore
that
Act
provides
that
the
King
shall
proceed
upon
the
Indictment
within
the
year
and
a
day
,
and
not
stay
for
the
Appeal
of
the
Party
.
If
the
Party
be
attainted
or
acquitted
,
the
Wife
or
next
Heir
shall
have
an
Appeal
,
but
not
if
he
be
convicted
.
But
now
admitting
that
the
word
hath
the
same
signification
with
the
word
yet
this
is
a
good
Plea
both
within
the
Words
and
the
Equity
of
the
Statute
.
This
appears
upon
the
Construction
of
that
Law
,
which
must
be
expounded
according
to
the
vulgar
Sense
and
signification
of
the
words
,
and
therefore
where
the
Statute
saith
,
is
that
it
is
not
had
but
the
Clergy
in
this
Case
was
and
the
Defendant
was
ready
to
read
if
he
had
been
admitted
thereunto
by
the
Court.
Thus
is
the
Statute
of
about
the
taking
away
of
Wards
,
that
is
,
if
they
had
cause
to
complain
.
This
Statute
hath
been
expounded
according
to
Equity
,
for
though
it
gives
an
Appeal
to
the
Wife
or
next
Heir
of
slain
,
yet
if
a
Woman
be
killed
,
her
next
of
Kin
shall
bring
an
Appeal
.
Therefore
by
the
same
Equity
these
words
,
shall
be
construed
by
the
Grant
of
the
Court
for
if
a
Man
be
indicted
without
the
addition
of
Clerk
,
he
cannot
demand
his
Clergy
unless
the
Court
ask
him
;
but
if
he
be
indicted
with
that
addition
then
he
may
demand
it
,
because
't
is
supposed
by
the
Court
that
he
can
read
.
That
this
Appeal
was
not
well
brought
these
Exceptions
were
taken
grounded
upon
the
Statute
of
by
which
seven
things
are
required
in
an
Appeal
of
Murder
.
That
the
Appellor
declare
the
Fact
,
the
Year
,
the
Day
,
the
Hour
,
the
Year
of
the
King
,
the
Town
where
the
Fact
was
done
,
and
with
what
Weapon
the
Party
was
slain
.
Now
in
this
Case
there
is
a
defect
in
two
of
the
things
required
by
that
Statute
.
That
of
the
Hour
which
is
laid
too
general
,
for
't
is
which
is
not
certain
enough
They
have
laid
no
Vill
,
for
't
is
that
the
Defendant
did
assault
the
Husband
of
the
Appellant
now
though
that
word
has
crept
into
Fines
and
Recoveries
and
likewise
into
Indictments
,
it
must
not
be
allowed
in
Appeals
.
There
may
be
several
Vills
in
one
Parish
,
and
though
this
is
ruled
good
in
Indictments
it
ought
not
to
be
so
here
,
because
of
the
difference
between
an
Indictment
and
an
Appeal
for
in
Indictments
you
need
not
mention
the
Hour
,
but
it
must
be
done
in
Appeals
.
A
Parish
is
an
Ecclesiastical
Division
,
and
though
such
may
be
a
Vill
,
't
is
not
necessary
that
it
should
be
so
But
afterwards
in
the
Chief
Iustice
delivered
the
Opinion
of
all
the
Iudges
(
except
Iustice
who
were
assembled
for
that
purpose
at
that
this
was
no
good
Plea
,
and
that
the
Court
ought
not
to
ask
the
Prisoner
what
he
had
to
say
,
and
so
to
let
him
into
the
benefit
of
his
Clergy
:
for
't
is
otherwise
resolved
DEBT
upon
a
By-Law
wherein
the
Company
set
forth
,
that
they
were
incorporated
by
Letters
Patents
of
King
and
were
thereby
empowred
to
make
By-Laws
for
the
better
Government
of
their
Corporation
,
and
that
the
Master
,
Warden
and
Assistants
of
the
Company
made
a
Law
,
&c.
That
the
Defendant
did
buy
a
quantity
of
rough
Horn
contrary
to
the
said
Law
,
There
was
Iudgment
in
this
Case
by
default
.
And
for
the
Defendant
it
was
argued
that
this
was
not
a
good
By-Law
.
Because
it
doth
restrain
Trade
for
the
Company
are
to
use
no
Horns
but
such
as
those
two
Men
shall
buy
,
and
if
they
should
have
occasion
for
more
than
those
Men
should
buy
,
then
't
is
plain
that
Trade
is
thereby
restrained
.
The
Master
hath
reserved
a
power
which
they
may
use
to
oppress
the
Poor
,
because
they
may
make
what
Agreements
they
will
amongst
themselves
,
and
set
unreasonable
prices
upon
those
Commodities
,
and
let
the
younger
sort
of
Tradesmen
have
what
quantity
and
at
what
rates
they
please
.
To
which
it
was
answered
by
Serjeant
First
,
This
By-Law
is
for
the
encouragement
of
Trade
,
because
the
Horns
are
equally
to
be
distributed
when
brought
to
the
Hall
for
the
benefit
of
the
whole
Company
.
But
the
material
Objection
was
,
that
this
being
a
Company
incorporated
within
the
City
of
they
have
not
Iurisdiction
elsewhere
,
but
are
restrained
to
the
City
,
and
by
consequence
cannot
make
a
By-Law
which
shall
bind
at
the
distance
of
four
and
twenty
miles
;
for
if
they
could
make
a
Law
so
extensive
they
might
by
the
same
reason
enlarge
it
all
over
and
so
make
it
as
binding
as
an
Act
of
Parliament
,
and
for
this
reason
it
was
adjudged
no
good
By-Law
.
ASsault
and
False
Imprisonment
The
Defendant
as
to
the
Assault
before
the
day
of
pleads
Not-Guilty
,
and
as
to
the
False
Imprisonment
on
the
said
day
of
in
the
same
year
he
made
a
special
Iustification
,
the
King
by
his
Letters
Patents
did
appoint
the
Defendant
to
be
Captain
general
and
Chief
Governour
of
and
so
sets
forth
the
Grant
at
large
,
by
which
he
appoints
twelve
Men
to
be
of
the
King's
Council
during
pleasure
,
of
which
the
Plaintiff
was
one
;
that
the
Defendant
had
also
power
by
the
advice
of
that
Council
to
appoint
and
establish
Courts
,
Iudges
and
Iustices
,
and
that
the
Copies
of
such
Establishments
must
be
sent
hither
for
the
King's
Assent
,
with
power
also
to
establish
a
Deputy-Governour
;
that
by
vertue
of
these
Letters
Patents
the
Defendant
had
appointed
Sir
to
be
Deputy-Governour
of
the
said
Island
in
his
absence
,
and
that
he
being
so
constituted
did
execute
the
said
Office
.
That
when
the
Defendant
returned
to
he
called
a
Council
,
before
whom
the
Plaintiff
was
charged
with
Administration
in
the
absence
of
the
Defendant
,
That
he
did
not
take
the
usual
Oath
for
observing
of
Trade
and
Navigation
;
that
he
assumed
the
Title
of
Lieutenant
Governour
,
and
that
Decrees
made
in
Court
were
altered
by
him
in
his
Chamber
:
Vpon
which
it
was
then
ordered
that
he
should
be
committed
to
the
Provost
Marshal
,
until
discharged
by
Law
,
which
was
done
accordingly
;
in
whose
Custody
he
remained
from
the
day
of
to
the
following
which
is
the
same
Imprisonment
,
To
this
Plea
the
Plaintiff
demurred
,
and
the
Defendant
joyned
in
Demurrer
.
argued
for
the
Plaintiff
,
and
Serjeant
for
the
Defendant
It
was
said
for
the
Plaintiff
,
that
the
Causes
of
his
Commitment
(
if
any
)
yet
were
such
which
they
ought
not
meddle
withal
,
because
they
relate
to
his
Mis-behaviour
in
his
Government
,
for
which
he
is
answerable
to
the
King
alone
.
But
supposing
they
might
have
some
cause
for
the
committing
of
him
,
this
ought
to
be
set
forth
in
the
Plea
that
the
Plaintiff
might
answer
it
;
for
to
say
he
did
not
take
the
Oath
of
Deputy
Governour
in
what
concerned
Trade
and
Navigation
is
no
cause
of
Commitment
,
because
there
was
no
Body
to
administer
that
Oath
to
him
,
for
he
was
Governour
himself
.
Then
to
alledge
that
he
did
alter
in
his
Chamber
some
Decrees
made
in
the
Court
of
that
can
be
no
cause
of
Commitment
for
the
Governour
is
Chancellor
there
.
Besides
the
Defendant
doth
not
shew
that
any
Body
was
injured
by
such
alterations
,
neither
doth
he
mention
any
particular
Order
but
only
in
general
,
so
't
is
impossible
to
give
an
Answer
to
it
.
He
doth
not
alledge
that
the
Plaintiff
had
made
or
done
any
of
these
things
,
but
that
he
was
charged
to
have
done
it
,
and
whether
upon
Oath
or
not
The
Governour
hath
a
large
power
given
by
these
Letters
Patents
to
make
Laws
such
as
he
by
consent
of
a
general
Council
shall
enact
.
The
Fact
is
set
forth
in
the
Plea
,
the
Plaintiff
was
committed
by
vertue
of
an
Order
of
Council
,
until
he
was
brought
to
a
general
Court
of
by
which
Court
he
was
again
committed
.
That
the
Court
had
power
to
commit
him
is
not
denied
,
for
the
King
is
not
restrained
by
the
Laws
of
to
govern
that
Island
by
any
particular
Law
whatsoever
,
and
therefore
not
by
the
Common
Law
,
but
by
what
Law
he
pleaseth
.
For
those
Islands
were
gotten
by
Conquest
or
by
some
of
his
Subjects
going
in
search
of
some
prize
and
planting
themselves
there
.
's
Case
The
Plaintiff
being
then
committed
by
an
Order
of
Council
till
he
should
be
discharged
by
due
course
of
Law
,
this
Court
will
presume
that
his
Commitment
was
legal
.
The
Court
were
all
of
Opinion
that
the
Plea
was
not
good
,
so
Iudgment
was
given
for
the
Plaintiff
;
but
afterwards
this
Iudgment
was
reversed
by
the
House
of
Peers
.
THIS
was
an
Action
brought
for
a
Duty
to
be
paid
for
setting
forth
that
the
Lord
Mayor
,
time
out
of
mind
kept
a
common
Beam
and
Weights
,
and
Servants
to
attend
the
weighing
of
Goods
.
That
the
Defendant
bought
Goods
,
but
did
not
bring
them
to
the
Beam
to
be
weighed
Vpon
Not-Guilty
pleaded
there
was
a
Verdict
for
the
Plaintiff
,
and
it
was
moved
in
arrest
of
Iudgment
,
that
the
Plaintiff
had
not
brought
himself
within
the
Prescription
,
for
he
doth
not
say
that
the
Defendant
sold
the
Goods
by
and
this
is
a
fault
which
is
not
helped
by
a
Verdict
.
This
had
been
certainly
naught
upon
a
Demurrer
,
and
being
substance
is
not
aided
by
this
Verdict
.
This
is
Substance
,
for
the
Duty
appears
to
be
wholly
in
respect
of
the
Weights
which
are
kept
;
now
being
the
Principal
,
and
it
being
no
where
alledged
that
the
Goods
were
weighed
elsewhere
,
or
that
they
were
such
which
are
usually
sold
by
Weight
,
then
there
is
no
need
of
bringing
of
them
to
the
Beam
.
If
one
prescribes
to
a
Common
,
and
doth
not
say
for
Cattle
the
Prescription
is
not
good
This
being
the
consideration
of
the
Duty
it
ought
to
be
precisely
alledged
,
as
in
an
where
the
Plaintiff
declared
that
in
consideration
that
the
Defendant
owed
him
he
promised
to
pay
it
and
alledged
that
such
a
day
but
for
omitting
the
Word
Iudgment
was
arrested
after
Verdict
,
because
the
Duty
did
arise
upon
the
commencement
of
his
The
true
reason
why
any
thing
is
helped
by
Verdict
is
for
that
the
thing
shall
be
presumed
to
be
given
in
Evidence
at
the
Trial.
Here
is
enough
set
forth
in
the
Plea
to
shew
that
the
Goods
were
not
weighed
,
and
it
must
be
given
in
Evidence
at
the
Trial
that
they
were
sold
contrary
to
the
Custom
,
which
is
the
only
Offence
to
be
proved
.
The
want
of
Averment
that
the
Goods
sold
by
the
Defendant
were
not
weighed
shall
not
vitiate
this
Declaration
after
a
Verdict
.
To
prove
this
some
Authorities
were
cited
,
as
where
in
Trespass
the
Defendant
justified
for
Common
by
Prescription
for
Beasts
and
that
he
put
in
his
Beasts
Issue
was
taken
upon
the
Prescription
and
found
for
the
Defendant
;
now
though
he
did
not
averr
that
the
Cattle
were
yet
it
was
held
that
it
was
cured
by
a
Verdict
.
And
of
this
Opinion
were
three
Iudges
now
;
but
Iustice
differed
,
for
says
he
if
this
Declaration
should
be
good
after
a
Verdict
then
a
Verdict
will
cure
any
fault
in
Pleading
.
Iudgment
for
the
Plaintiff
AN
Action
on
the
Case
for
scandalous
Words
.
The
Plaintiff
declared
that
he
was
a
for
the
County
of
that
there
was
a
Rebellion
in
the
by
the
Duke
of
and
others
,
that
search
was
made
for
the
Defendant
,
being
suspected
to
be
concerned
in
that
Rebellion
,
and
that
the
Defendant
thereupon
spoke
these
words
of
the
Plaintiff
,
John
Prowse
There
was
a
Verdict
for
the
Plaintiff
,
and
the
Iudgment
being
stayed
till
the
Return
of
the
moved
that
the
Plaintiff
might
have
his
Iudgment
,
because
the
Words
are
actionable
,
for
they
touched
him
in
his
Office
of
a
Iustice
of
a
Peace
.
It
was
objected
(
to
stay
the
Iudgment
)
that
the
Words
were
improper
,
and
therefore
could
not
be
actionable
.
But
admitting
them
so
to
be
,
yet
if
they
in
any
wise
reflect
upon
a
Man
in
a
publick
Office
they
will
bear
an
Action
.
The
Plaintiff
doth
not
lay
any
of
him
as
a
or
that
the
words
were
spoken
of
him
relating
to
his
or
the
Execution
thereof
,
and
therefore
an
Action
will
not
lie
though
,
an
Information
might
have
been
proper
against
him
.
If
a
Man
should
call
another
and
that
he
set
upon
him
in
the
High-way
,
and
took
his
Purse
from
him
,
an
Action
will
not
lie
,
because
he
doth
not
directly
charge
him
with
Felony
or
Robbery
.
The
Court
were
divided
in
Opinion
,
two
against
two
,
so
the
Plaintiff
had
his
Iudgment
.
Libel
was
in
the
Spiritual
Court
against
a
Woman
The
Woman
suggests
that
this
person
was
indicted
at
the
Sessions
in
the
for
marrying
of
her
(
he
then
having
a
Wife
living
)
that
he
was
thereupon
convicted
and
had
Iudgment
to
be
burned
in
the
Hand
,
so
that
being
tried
by
a
Iury
and
a
Court
which
had
a
Iurisdiction
of
the
cause
and
the
Marriage
found
,
a
Prohibition
was
prayed
.
moved
for
a
Consultation
,
because
no
Court
,
but
the
Ecclesiastical
Court
,
can
examine
a
Marriage
;
for
in
the
Dower
Writ
is
always
directed
to
the
Bishop
to
certifie
the
lawfulness
of
the
Marriage
;
and
if
this
Woman
should
bury
this
Husband
and
bring
a
Writ
of
Dower
,
and
the
Heir
plead
this
Verdict
and
Conviction
shall
not
be
given
in
Evidence
to
prove
the
illegality
of
the
Marriage
,
but
the
Writ
must
go
to
the
Bishop
.
This
is
proved
by
the
Case
of
in
this
Court
.
The
Man
was
married
in
fact
,
and
his
Wife
being
detained
from
him
(
she
being
in
the
Custody
of
Sir
brought
an
she
came
into
the
Court
,
but
my
Lord
would
not
deliver
the
Body
,
but
directed
an
upon
the
Demise
of
his
Wife
,
that
the
Marriage
might
come
in
question
.
It
was
found
a
Marriage
;
and
afterwards
at
an
Hearing
before
the
Delegates
,
this
Verdict
was
not
allowed
to
be
given
in
Evidence
,
because
in
this
Court
one
Iury
may
find
a
Marriage
and
another
otherwise
;
so
that
it
cannot
be
tried
whether
they
are
legally
married
by
a
Temporal
Court
.
'T
is
true
,
this
Court
may
controle
the
Ecclesiastical
Courts
,
but
it
must
be
It
was
said
that
if
a
Prohibition
should
not
go
then
the
Authority
of
those
two
Courts
would
interfere
,
which
might
be
a
thing
of
ill
consequence
:
If
the
lawfulness
of
this
Marriage
had
been
first
tried
in
the
Court
Christian
the
other
Court
at
the
would
have
given
Credit
to
their
Sentence
.
But
that
Court
hath
been
prohibited
in
a
Case
of
the
like
nature
,
for
a
Suit
was
there
commenced
for
saying
,
The
Defendant
alledged
that
the
Plaintiff
was
adjudged
the
reputed
Father
of
a
Bastard
by
two
Iustices
of
the
Peace
according
to
the
Statute
,
and
so
justified
the
speaking
of
the
words
,
and
this
being
refused
there
,
a
Prohibition
was
granted
,
and
so
it
was
in
this
Case
by
the
Opinion
of
three
Iudges
.
a
Civilian
,
being
present
in
the
Court
said
,
that
Marriage
or
no
Marriage
never
came
in
question
in
their
Court
upon
a
Libel
for
Jactitation
,
unless
the
Party
replies
a
lawful
Marriage
,
and
that
the
Spiritual
Court
ought
not
to
be
silenced
by
a
Proof
of
a
Marriage
in
a
Temporal
Court
;
for
all
Marriages
ought
to
be
of
which
their
Courts
had
the
proper
Iurisdiction
.
IN
an
Action
on
the
Case
,
wherein
the
Plaintiff
declared
that
the
Defendant
exhibited
a
Peittion
against
him
,
and
Sir
before
the
King
in
Council
,
by
reason
whereof
he
was
compelled
to
appear
at
his
great
Expence
,
and
that
he
was
afterwards
discharged
of
the
matter
alledged
against
him
,
which
was
the
erecting
of
Cottages
in
in
the
County
of
This
Action
was
first
laid
in
and
the
Defendant
moved
that
it
might
be
laid
in
where
the
Petition
was
exhibited
But
it
was
insisted
for
the
Plaintiff
,
that
where
a
cause
of
Action
ariseth
in
two
places
he
hath
his
Election
to
lay
it
in
either
.
The
Court
held
that
the
exhibiting
of
the
Petition
was
the
ground
of
the
Action
,
and
though
it
conteined
matter
done
in
another
place
,
yet
it
shall
be
tried
in
the
County
where
the
Petition
was
delivered
;
for
suppose
the
Petition
had
contained
Matter
done
beyond
Sea
,
Now
in
this
Case
the
Action
being
brought
in
the
Defendant
pleaded
that
the
Chase
was
injured
by
the
erecting
the
said
Cottages
,
by
the
digging
of
Pits
,
and
by
the
making
of
a
Warren
by
Sir
and
that
the
other
person
Sir
being
then
a
Iustice
of
the
Peace
for
the
County
of
upon
Complaint
to
him
made
did
not
impose
Penalties
upon
the
Offenders
,
but
did
abet
the
said
Plaintiff
,
by
reason
whereof
the
Deer
were
decreased
from
head
to
To
this
Plea
the
Plaintiff
demurred
.
argued
against
the
Plea
,
first
that
it
charged
Sir
with
no
particular
Crime
,
but
enlargeth
the
Matter
upon
the
Plaintiff
,
and
amounts
to
no
more
than
the
general
Issue
;
for
the
Question
is
whether
the
Defendant
hath
fasly
prosecuted
the
Plaintiff
before
the
King
in
Council
,
which
is
only
matter
of
fact
,
and
which
is
charged
upon
the
Defendant
,
and
therefore
he
ought
to
have
pleaded
Not-Guilty
.
'T
is
true
,
where
the
Defence
consists
in
matters
of
Law
there
the
Defendant
may
plead
specially
,
but
where
't
is
purely
fact
the
general
Issue
must
be
pleaded
.
It
was
insisted
upon
that
what
is
alledged
in
this
Plea
might
be
given
in
Evidence
upon
the
general
Issue
,
but
the
Defendant
may
likewise
plead
it
specially
,
and
not
trust
the
Matter
to
the
As
in
Conspiracy
for
procuring
of
the
Plaintiff
to
be
falsly
and
maliciously
indicted
of
a
Robbery
This
Defence
was
matter
of
Law
.
the
Defendants
plead
that
they
were
robbed
,
and
suspecting
the
Plaintiff
to
be
guilty
procured
a
Warrant
in
order
to
have
the
Plaintiff
examined
before
a
Iustice
of
the
Peace
,
of
which
he
had
notice
,
and
absented
himself
,
but
was
afterwards
committed
to
the
Gaol
by
a
Iudge
of
this
Court
who
advised
them
to
preferr
a
Bill
of
Indictment
,
this
was
adjudged
a
good
Plea
,
though
it
amounted
to
no
more
than
the
general
Issue
,
and
all
this
matter
might
have
been
given
in
Evidence
at
the
Trial.
The
Court
,
except
Iustice
advised
the
Plaintiff
to
waive
his
Demurrer
,
and
the
Defendant
to
plead
the
general
Issue
.
But
Iustice
took
an
Exception
to
the
Declaration
for
that
the
Plaintiff
had
not
alledged
any
damnification
,
but
only
that
he
was
compelled
to
appear
,
and
doth
not
shew
how
,
either
by
the
Petition
of
the
Defendant
,
or
by
Summons
,
He
ought
to
set
forth
that
he
was
summoned
to
appear
before
the
King
in
Order
to
his
discharge
,
but
to
say
is
incertain
,
for
that
might
be
in
the
vindication
of
his
Honour
or
Reputation
.
He
complains
of
a
Petition
exhibited
against
him
which
the
Defendant
hath
answered
by
shewing
to
the
Court
sufficient
matter
which
might
reasonably
induce
him
so
to
to
;
and
for
that
reason
he
held
the
Plea
to
be
good
.
AN
Information
was
exhibited
against
him
for
a
of
which
he
was
found
guilty
,
and
this
Exception
was
taken
in
arrest
of
Iudgment
.
the
Defendant
in
such
a
year
So
the
Fact
is
laid
after
the
Indictment
,
which
was
exhibited
against
the
Defendant
at
the
Sessions
,
and
the
Fact
is
laid
to
be
in
following
in
the
same
year
But
the
Attorny
General
said
this
was
only
a
Misprision
of
the
Clerk
in
titling
the
Record
,
in
the
and
there
was
no
fault
in
the
Body
of
the
Information
,
and
that
it
was
amendable
at
the
Common
Law
:
He
cited
some
Cases
to
prove
where
amendments
have
been
in
the
Cases
of
Subjects
of
greater
Mistakes
than
here
,
it
ought
to
be
amended
in
the
King's
Case
.
'T
is
not
only
amendable
at
the
Common
Law
but
by
several
Statutes
which
extend
to
all
Misprisions
of
Clerks
,
except
Treason
,
Felony
and
Outlawry
,
wherefore
this
mistake
of
was
amended
and
made
THE
Defendant
was
indicted
at
the
Sessions
in
for
not
attending
at
the
being
chosen
of
the
Iury
for
such
a
year
.
To
this
Indictment
he
pleaded
the
King's
Grant
to
the
Company
of
of
which
he
was
a
Member
,
by
which
Grant
that
Company
is
exempted
from
being
put
or
summoned
upon
a
Iury
or
Inquest
before
the
Mayor
or
Sheriffs
or
Coroner
of
And
upon
a
Demurrer
the
Question
was
,
whether
the
are
discharged
by
this
Grant
from
their
Attendance
at
the
said
And
for
the
King
it
was
argued
that
they
are
not
discharged
.
Before
the
Iudgment
upon
the
brought
against
the
City
of
these
Courts
there
were
like
the
Hundred
Courts
in
the
County
;
for
as
these
were
derived
out
of
the
County
,
so
those
were
derived
from
the
Lord
Mayor's
Court
,
which
is
a
Court
of
Record
,
and
erected
for
the
better
Government
of
the
City
,
and
the
Aldermen
of
every
Ward
had
right
to
hold
Leets
there
.
But
now
the
words
of
this
Grant
do
not
extend
to
this
Case
,
for
the
are
thereby
discharged
only
from
being
of
a
Iury
before
the
&c.
but
the
Court
of
is
held
before
neither
,
for
't
is
held
before
the
Alderman
of
the
Ward
.
The
words
in
this
Grant
ought
to
be
taken
strictly
,
shall
be
exempted
if
there
be
other
sufficient
Men
in
the
Ward
to
serve
besides
,
and
if
this
doth
not
appear
the
Grant
is
void
;
but
this
is
not
alledged
.
As
to
the
first
Exception
it
was
said
that
the
was
held
before
the
Mayor
,
for
the
Iuries
there
are
not
to
try
any
Matter
,
but
only
to
make
which
are
carried
before
the
Mayor
.
Exceptions
were
taken
against
the
Indictment
,
which
was
for
not
serving
at
a
Wardmote
Inquest
Because
't
is
a
thing
not
known
at
the
Common
Law
that
a
Man
should
be
of
a
Iury
The
Indictment
was
that
the
Defendant
was
an
Inhabitant
of
such
a
place
,
and
elected
a
Iury
Man
.
But
doth
not
say
that
he
ought
to
hold
the
Office
to
which
he
was
elected
.
It
was
quashed
THE
Husband
being
seized
in
Fee
had
Issue
Ph.
&
Mar.
and
dyed
,
his
Wife
survived
,
who
was
then
by
Law
Guardian
in
Socage
to
her
Children
;
one
of
which
by
reason
whereof
her
Estate
became
forfeited
during
life
to
her
Sister
by
vertue
of
the
Statute
of
who
now
brought
an
which
was
tried
at
the
Bar.
The
Mother
was
produced
as
a
Witness
at
this
Trial
against
the
married
Daughter
,
but
it
was
objected
against
her
that
she
was
Tenant
in
Possession
of
the
Lands
in
question
under
her
other
Daughter
,
that
some
part
of
the
Estate
was
in
Houses
,
and
that
she
had
made
Leases
thereof
to
several
Tenants
for
and
covenanted
with
the
Lessees
,
that
she
together
with
the
Infants
,
when
of
Age
,
shall
and
will
joyn
to
do
any
●●●rther
Act
for
the
quiet
enjoyment
thereof
;
therefore
this
is
like
the
Case
of
a
Bailiff
or
Steward
,
who
if
they
put
themselves
under
such
Covenants
shall
never
be
admitted
as
Witnesses
in
any
Cause
where
the
Title
of
such
Lands
shall
come
in
question
.
The
Proofs
that
the
Mother
did
not
consent
were
,
That
she
made
of
the
whole
matter
,
and
got
the
Lord
Chief
Iustice's
Warrant
to
search
Mr.
Houss
for
her
Daughter
,
and
upon
application
made
to
my
Lord
Chancellor
she
obtained
a
Writ
of
and
got
a
and
gave
notice
of
the
Fact
in
the
and
exhibited
an
Information
in
the
Crown
Office
against
Mr.
and
his
Father
and
his
Maid
.
Attorny
General
The
Preamble
of
this
Act
will
be
a
Guide
in
this
Case
,
which
is
,
Then
it
enacts
which
Assent
is
not
necessary
within
the
meaning
of
this
Act
,
unless
the
Child
be
taken
away
either
by
which
must
be
proved
The
Mother
was
no
good
Guardian
to
these
Children
,
for
she
did
set
up
one
to
be
a
Curator
for
her
Daughter
in
the
Spiritual
Court
to
call
her self
to
an
accompt
for
the
personal
Estate
of
which
her
Husband
died
possessed
,
she
having
given
Security
to
exhibit
a
true
Inventory
.
This
Accompt
was
stated
in
the
Prerogative
Court
between
her
and
the
Curator
to
only
,
for
which
she
gave
Bond
,
when
in
truth
the
Personal
Estate
was
worth
more
,
and
afterwards
obtained
a
Decree
in
thinking
thereby
to
bind
the
interest
of
the
Infants
.
In
this
Case
it
was
said
,
that
there
must
be
a
continued
refusal
of
the
Mother
,
for
if
she
once
agree
,
though
afterwards
she
disassent
,
yet
't
is
an
assent
within
the
Statute
:
There
must
likewise
be
proof
of
the
stealing
away
.
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
Scire
Fac.
the
Kings
Courts
the
Kings
Courts
Kings
Courts
the
Kings
Courts
Alias
Sci.
fa.
Kings
Courts
the
Kings
Courts
Sci.
fa.
Kings
Courts
the
Kings
Courts
Kings
Courts
the
Kings
Courts
Kings
Courts
the
Kings
Courts
the
Kings
Courts
Kings
Courts
Kings
Courts
the
Kings
Courts
Kings
Courts
Kings
Courts
Kings
Courts
the
Kings
Courts
Kings
Courts
the
Kings
Courts
Sci.
Fac.
the
Kings
Conrts
Kings
Courts
the
Kings
Courts
the
Kings
Courts
Als.
Sci.
fa.
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
the
Kings
Courts
Alias
Scire
Fac.
the
Kings
Courts
the
Kings
Courts
Fi.
Fa.
the
Kings
Courts
in
Nullo
est
erratum
W.
&c
M.
ERror
to
reverse
a
Iudgment
given
in
Sci.
fa.
upon
a
brought
against
the
Plaintiff
in
the
Errors
,
setting
forth
,
that
Debt
was
brought
upon
a
Bond
against
and
a
Iudgment
was
thereupon
obtained
for
That
the
said
afterwards
intermarried
with
Mr.
That
a
was
brought
upon
that
Iudgment
against
Husband
and
Wife
,
to
shew
cause
why
the
Plaintiff
should
not
have
execution
.
That
upon
this
there
were
two
returned
,
and
thereupon
Iudgment
was
had
against
Husband
and
Wife
.
It
rested
for
a
year
and
a
day
and
,
then
the
Wife
died
,
and
the
Plaintiff
brought
a
new
against
the
Husband
alone
,
to
shew
cause
why
he
should
not
have
Execution
upon
the
first
Iudgmont
.
The
Defendant
pleaded
,
that
there
was
another
brought
against
him
and
his
Wife
for
the
same
Cause
,
And
upon
a
Demurrer
to
this
Plea
,
Iudgment
was
given
in
against
him
The
Question
now
was
,
whether
this
will
lye
against
the
Husband
alone
,
after
the
death
of
his
Wife
.
This
Case
was
argued
by
Mr.
and
Mr.
that
the
Husband
was
not
chargable
.
It
was
admitted
on
all
sides
,
that
if
a
Feme
sole
is
indebted
and
marries
,
that
an
Action
will
lye
against
the
Husband
and
Wife
,
and
he
is
lyable
to
the
payment
of
her
Debts
.
It
was
agreed
also
,
that
if
a
Iudgment
be
had
against
a
Feme
sole
,
and
she
marries
,
and
afterwards
dies
,
that
the
Husband
is
not
chargable
,
because
her
Debts
before
Coverture
shall
not
charge
him
,
unless
recovered
in
her
Life-time
.
In
like
manner
no
Debts
which
are
due
to
her
shall
go
to
the
Husband
by
virtue
of
the
inter-marriage
,
if
she
dye
before
those
are
recovered
,
;
but
her
Administrator
will
be
entituled
to
them
,
which
may
be
the
Husband
,
but
then
he
hath
a
Right
only
as
Administrator
,
and
the
reason
is
,
because
such
Debts
before
they
are
recoverd
are
only
And
from
hence
the
Council
did
inferr
,
that
the
Iudgment
in
this
Case
against
the
Wife
,
did
not
charge
the
Husband
Then
the
Question
will
be
,
if
the
Husband
is
not
chargeable
by
the
Original
Iudgment
,
whether
the
Iudgment
on
the
had
not
made
an
alteration
,
and
charged
him
after
the
death
of
his
Wife
?
And
as
to
that
,
it
was
said
that
this
Iudgment
upon
the
made
no
new
charge
,
for
't
is
only
and
carries
the
first
Iudgment
no
farther
than
it
was
before
,
for
't
is
introduced
by
the
At
the
Common
Law
no
Execution
could
be
had
upon
a
Iudgment
after
a
year
and
a
day
;
and
there
was
then
no
remedy
but
to
bring
an
Action
of
Debt
upon
that
Iudgment
.
This
Inconvenience
was
remedied
by
the
Statute
of
which
gives
a
upon
the
Iudgment
,
to
shew
cause
why
Execution
should
not
be
had
,
which
can
be
no
more
than
a
liberty
to
take
Execution
upon
the
Original
Iudgment
,
which
cannot
charge
the
Husband
in
this
case
,
because
't
is
only
a
consequence
of
that
Iudgment
,
and
creates
no
new
charge
,
for
a
Release
of
all
Actions
will
discharge
this
award
of
Execution
.
But
the
Reasons
why
the
original
Iudgment
shall
not
be
carried
farther
by
the
Iudgment
in
the
are
as
follow
By
considering
the
nature
of
a
which
lay
not
at
the
Common
Law
,
but
is
given
by
the
Statute
in
all
persosonal
Actions
;
the
words
whereof
are
these
,
Vpon
which
words
it
is
evident
,
that
the
execution
of
the
first
Iudgment
on
Record
is
all
which
is
given
by
this
Act
after
the
year
and
day
,
and
it
takes
off
that
bar
which
was
incurred
by
the
lapse
of
time
,
and
gives
a
speedy
Execution
of
the
Iudgment
recorded
.
The
Proceedings
upon
a
shew
the
same
thing
,
for
the
Writ
recites
the
first
Iudgment
,
and
then
demands
the
Defendant
to
shew
cause
why
the
Plaintiff
should
not
have
Execution
thereon
but
prays
no
new
thing
is
not
an
Original
but
a
Iudicial
Writ
,
which
depends
purely
upon
the
first
Iudgment
,
and
a
Writ
of
Error
suspends
the
execution
of
both
;
so
likewise
if
the
Original
Iudgment
be
reversed
,
even
a
Iudgment
obtained
upon
a
will
be
reversed
in
like
manner
.
The
Law
doth
not
charge
a
Man
without
an
Appearance
,
but
here
is
none
;
and
the
Statute
can
never
operate
upon
this
Case
,
because
that
extends
only
to
such
Iudgments
upon
which
there
has
been
a
Recovery
;
and
here
is
nothing
recovered
upon
this
for
't
is
only
to
have
Execution
upon
the
first
Iudgment
.
If
the
Law
should
be
otherwise
,
this
absurdity
would
follow
,
There
would
be
a
Recovery
without
a
Record
;
for
the
purport
of
the
is
only
to
have
Execution
according
to
the
form
and
effect
of
the
Record
,
and
the
very
Record
it self
doth
not
charge
the
Husband
.
Besides
,
the
first
Iudgment
did
charge
the
Lands
of
the
Wife
,
which
are
still
liable
to
satisfie
the
Debt
;
why
therefore
must
the
Lands
of
the
Husband
be
charged
?
Cannot
the
Administrator
of
the
Wife
bring
a
Writ
of
Error
to
reverse
this
Iudgment
?
and
if
it
should
be
reversed
,
shall
the
Husband
pay
the
Debt
,
and
the
Administrator
of
the
Wife
be
restored
?
The
Objections
made
by
the
Council
on
the
other
side
against
this
Opinion
were
,
That
if
an
Action
of
Debt
will
lie
upon
a
Iudgment
in
a
the
Original
Iudgment
is
by
this
means
carried
farther
,
for
without
a
new
Recovery
Debt
will
not
lie
and
to
prove
this
there
is
and
Authority
in
where
a
had
Iudgment
for
an
Annuity
,
and
brought
a
upon
that
Iudgment
,
against
the
Successor
of
the
parson
who
was
to
pay
it
,
and
obtained
a
Iudgment
upon
that
to
recover
the
arrearages
,
and
afterwards
brought
an
Action
of
Debt
upon
the
last
Iudgment
,
and
the
Book
says
There
is
another
Case
in
where
't
is
held
,
that
an
Action
of
Debt
will
lye
upon
a
Iudgment
in
a
upon
a
Recognizance
Which
Objections
may
receive
this
Answer
.
First
,
As
to
the
Case
in
't
is
admitted
to
be
Law
,
but
't
is
not
an
Authority
to
be
objected
to
this
purpose
,
because
the
first
Iudgment
for
the
Annuity
charges
the
Successor
;
but
the
Original
Iudgment
in
this
Case
doth
not
charge
the
Husband
,
so
the
Cases
are
not
parallel
.
The
like
answer
may
be
given
to
the
Case
in
for
a
Recognizance
is
a
Iudgment
in
it self
,
and
Debt
will
lie
upon
it
without
a
upon
that
Iudgment
But
on
the
other
side
it
was
argued
,
that
the
award
of
execution
is
absolute
against
Husband
and
Wife
;
for
't
is
a
Recovery
against
both
,
whereas
before
it
was
only
the
Debt
of
the
Wife
,
but
now
't
is
joynt
against
the
one
as
well
as
the
other
.
The
Iudgment
upon
the
is
a
distinct
Action
It
cannot
be
denied
but
that
if
a
Woman
be
indebted
and
marrieth
,
the
Husband
is
chargable
during
the
Coverture
,
which
shews
that
by
the
Marriage
,
he
is
become
the
principal
Creditor
.
As
to
the
t
is
true
,
at
the
Common
Law
,
if
a
Man
had
recovered
in
Debt
,
and
did
not
sue
forth
Execution
within
a
year
and
a
day
,
he
must
then
bring
a
new
Original
,
and
the
Iudgment
thereon
had
been
a
new
Recovery
;
but
now
a
is
given
by
the
Statute
instead
of
an
Original
;
and
therefore
a
Iudgment
thereon
shall
also
be
a
new
Iudgment
;
for
tho'
t
is
a
Iudicial
Writ
yet
't
is
in
the
nature
of
an
Action
,
because
the
Defendant
may
plead
any
matter
in
Bar
of
the
Execution
upon
the
first
Iudgment
,
and
't
is
for
this
reason
that
a
Release
of
all
Actions
is
a
good
bar
to
it
.
an
Action
of
Debt
will
lie
upon
a
Iudgment
on
a
which
shews
that
't
is
an
Action
distinct
from
the
Original
,
and
upon
such
a
Iudgment
the
Defendant
may
be
comitted
to
Prison
several
years
afterwards
without
a
new
The
Husband
may
have
execution
of
a
Iudgment
recovered
by
him
and
his
Wife
,
after
the
death
of
his
Wife
without
a
for
the
Iudgment
hath
made
it
a
proper
Debt
due
to
him
,
and
he
alone
may
bring
an
Action
of
Debt
upon
that
Iudgment
,
and
it
seems
to
be
very
reasonable
that
he
should
have
the
benefit
of
such
a
Iudgment
and
yet
not
be
charged
after
the
death
of
his
Wife
,
when
there
hath
been
a
Recovery
against
both
in
her
life-time
.
This
is
like
the
Case
where
a
is
returned
against
Husband
and
Wife
as
Executrix
,
and
a
Iudgment
thereon
the
Wife
dies
,
yet
the
Husband
shall
be
charged
,
for
the
Debt
is
altered
.
If
it
should
be
otherwise
this
inconvenience
would
follow
,
that
if
the
Wife
should
die
,
the
Husband
will
possess
himself
of
her
Estate
,
and
defraud
the
Creditors
;
so
that
he
takes
her
but
not
But
the
Law
is
otherwise
,
for
if
a
Feme
being
Lessee
for
years
doth
marry
,
and
the
Rent
is
behind
,
and
she
dies
,
the
Husband
shall
be
charged
with
the
Rent
arrear
,
because
he
is
entituled
to
the
Profits
of
the
Land
by
his
marriage
.
To
which
it
was
answered
,
that
if
a
Man
should
marry
an
Exerecutrix
,
and
then
he
and
his
Wife
are
sued
,
and
Iudgment
obtained
against
them
to
recover
and
thereupon
a
is
awarded
to
levie
the
Debt
and
Damages
,
and
the
Sheriff
returns
a
and
then
the
Wife
dies
,
the
Husband
is
not
chargeable
,
because
the
Iudgment
is
not
properly
against
him
,
who
is
joyned
only
for
conformity
;
but
if
upon
the
return
of
the
there
had
been
an
award
of
execution
that
would
have
been
a
new
Iudgment
,
and
the
old
one
had
been
discharged
and
then
the
Husband
must
be
charged
for
the
new
wrong
.
Afterwards
in
the
Iudgment
was
affirmed
The
Plaintiff
had
a
Iudgment
by
default
in
the
Court
of
and
a
Writ
of
Enquiry
was
brought
,
and
entire
Damages
given
;
and
now
the
Defendant
brought
a
Writ
of
Error
,
and
it
was
argued
,
that
if
any
of
the
Promises
be
ill
,
Iudgment
shall
be
reversed
;
the
Error
now
assigned
was
in
the
second
Promise
,
That
in
consideration
that
the
Plaintiff
would
let
the
Defendant
have
Meat
,
Drink
and
Lodging
,
he
promised
to
pay
so
much
valerent
,
it
should
have
been
at
the
time
of
the
Promise
made
,
So
the
Iudgment
was
affirmed
Wednesday
May
Bartholomew
Shower
IN
an
Action
of
Covenant
which
was
to
make
such
an
to
the
Plaintiff
according
to
an
Agreement
made
between
him
and
the
Defendant
as
Council
should
direct
and
advise
,
and
for
non-performance
thereof
this
Action
was
brought
;
the
Defendant
pleaded
and
Iudgment
was
obtained
against
him
.
Vpon
which
a
Writ
of
Error
was
brought
,
and
the
common
Error
assgned
.
It
was
objected
that
the
Plaintiffs
Council
should
give
the
advice
because
he
is
the
person
interested
.
This
Objection
was
answered
by
Mr.
who
said
,
that
the
Defendant
had
likewise
an
interest
in
this
matter
,
for
't
is
an
advantage
to
him
to
make
the
Assignment
that
his
Covenant
might
be
saved
;
't
is
true
,
it
had
been
otherwise
if
the
Covenant
had
been
to
make
such
a
as
Council
should
advise
,
for
then
the
person
to
whom
the
Covenant
is
made
may
chuse
whether
he
will
have
a
Feoffment
,
Release
,
or
Confirmation
,
and
then
his
Council
should
advise
what
sort
of
Conveyance
is
proper
.
But
here
it
is
to
make
an
and
such
as
the
Parties
had
agreed
on
.
If
a
Man
should
be
bound
to
give
another
such
a
Release
as
the
Iudge
of
the
Prerogative
Court
shall
think
fit
,
the
person
who
is
so
bound
must
procure
the
Iudge
to
direct
what
Release
shall
be
given
,
because
the
Condition
is
for
his
benefit
,
and
he
hath
taken
upon
him
to
perform
it
at
his
Peril
.
'T
is
usual
for
Men
to
have
Council
on
both
sides
,
to
put
their
Agreements
into
method
;
but
in
this
Case
it
being
left
generally
as
Council
shall
direct
,
what
reason
can
be
given
why
the
Defendants
Council
shall
not
be
intended
;
especially
when
it
seems
by
the
penning
of
the
Covenant
he
shall
?
For
an
is
to
be
made
as
Council
shall
direct
,
and
here
being
a
Verdict
for
the
Plaintiff
,
it
must
now
be
presumed
that
the
Defendants
Council
was
first
to
give
the
advice
,
and
then
he
was
to
make
the
Assignment
.
It
was
argued
,
that
first
as
to
the
Verdict
,
't
is
not
materially
objected
in
this
Case
,
because
the
Plea
is
so
that
nothing
of
the
special
matter
could
come
in
Evidence
.
Now
admitting
this
Covenant
to
be
general
,
yet
one
of
the
Parties
must
make
his
choice
of
Council
,
before
he
can
entitle
himself
to
an
Action
.
All
Deeds
are
taken
according
to
the
general
intendment
,
and
therefore
by
this
Covenant
his
Council
is
to
advise
to
whom
the
Assignment
is
to
be
made
for
if
the
Council
of
the
Defendant
should
advise
an
insufficient
Deed
,
that
would
not
have
saved
his
Covenant
.
Befides
,
the
Plaintiff
hath
not
averred
that
Council
did
not
advise
,
and
therefore
the
Defendant
could
not
plead
any
thing
but
was
removed
out
of
the
Lord
Mayors
Court
by
the
Return
whereof
was
that
the
City
of
was
an
ancient
City
Incorporate
,
and
that
time
out
of
mind
there
was
a
Custom
&c.
That
there
was
a
Custom
for
them
to
regulate
any
Custom
within
the
City
,
Then
they
set
forth
an
by
which
the
were
made
a
Fellowship
,
and
that
the
Meeters
of
Corn
should
from
time
to
time
give
notice
to
the
to
unlade
such
Corn
as
should
there
,
and
that
no
not
being
Free
of
the
said
Fellowship
,
shall
unlade
any
Corn
upon
the
Forfeiture
of
to
be
recovered
in
an
Action
brought
in
the
Name
of
the
and
that
the
Party
offending
shall
Then
they
set
forth
the
Iudgment
in
the
and
the
re-grant
,
and
that
the
Defendant
not
being
of
the
said
Fellowship
,
did
unlade
one
hundred
Quarters
of
Malt
,
took
many
Exceptions
to
this
By
Law
,
but
the
most
material
were
,
It
appears
upon
the
Return
,
that
the
City
of
hath
assumed
an
Authority
to
create
a
Fellowship
by
Act
of
Common
Council
,
which
they
cannot
;
for
't
is
a
Prerogative
of
the
Crown
so
to
do
;
and
they
have
not
averred
or
shewed
any
special
Custom
to
warrant
such
an
Authority
.
They
have
made
this
By-Law
too
general
,
for
if
a
Man
should
carry
and
unlade
his
own
Goods
there
,
he
is
lyable
to
the
Forfeiture
,
in
which
Case
he
ought
to
be
excepted
.
This
Act
of
Common
Council
prohibits
Bargemen
not
being
Free
of
the
Fellowship
of
to
unlade
any
Coals
or
Grain
there
,
and
they
have
not
averred
that
the
Malt
unladed
did
so
they
have
not
pursued
the
words
of
the
By-Law
.
They
say
in
this
Law
that
the
person
offending
shall
have
no
Essoign
or
Wager
of
Law
,
which
is
a
Parliamentary
Power
and
such
as
an
inferiour
Iurisdiction
ought
not
to
assume
.
THere
was
a
Sentence
in
the
Court
of
concerning
the
Taking
of
a
Ship
,
and
afterwards
an
Executrix
brought
an
Action
of
Trover
and
Conversion
for
the
same
.
The
Defendant
after
an
Imparlance
pleads
that
at
the
time
of
the
Conversion
he
was
a
Servant
to
King
the
Second
,
and
a
Captain
of
a
Man
of
War
called
the
and
that
he
did
seize
the
said
Ship
for
the
Governour
of
the
Company
,
she
going
in
a
trading
Voiage
to
the
contrary
to
the
King's
Prohibition
And
upon
a
Demurrer
these
Exceptions
were
taken
to
this
Plea
.
The
Defendant
sets
forth
that
he
was
a
Servant
to
the
King
,
but
hath
not
shewed
his
Commission
to
be
a
Captain
of
a
Man
of
War
.
That
he
seized
the
Ship
going
to
the
contrary
to
the
King's
Prohibition
,
and
hath
not
set
forth
the
Prohibition
it self
.
It
was
Argued
by
the
Council
That
it
may
be
a
Question
whether
this
was
the
Conversion
for
which
this
Action
is
brought
,
for
it
was
upon
the
Sea
,
and
the
Defendant
might
plead
to
the
Iuisdiction
of
this
Court
the
Matter
being
then
under
the
Cognizance
of
the
Admiralty
.
But
as
to
the
Substance
of
this
Plea
't
is
not
material
for
the
Defendant
either
to
set
forth
his
Commission
or
the
King's
Prohibition
;
he
hath
shewed
enough
to
entitle
the
Court
of
Admiralty
to
a
Iurisdiction
of
this
Cause
,
and
therefore
this
Court
cannot
meddle
with
it
,
for
he
expresly
affirmeth
that
he
was
a
Captain
of
a
Man
of
War
,
and
did
seize
this
Ship
,
which
must
be
intended
upon
the
Sea
;
so
that
the
Conversion
might
afterwards
be
upon
the
Land
yet
the
original
cause
arising
upon
the
Sea
,
shall
and
must
be
tried
in
the
Admiralty
;
and
it
having
already
received
a
determination
there
,
shall
not
again
be
controverted
in
an
Action
of
The
Case
of
Mr.
was
cited
to
this
purpose
,
who
killed
Mr.
and
was
acquitted
there
of
the
Murder
;
the
Exemplification
of
which
Acquittal
he
woduced
under
the
great
Seal
of
that
Kingdom
being
brought
from
by
an
to
this
Court
;
notwithstanding
the
King
was
very
willing
to
have
him
tried
here
for
that
Fact
;
the
consideration
whereof
he
referred
to
the
Iudges
,
who
all
agreed
,
that
he
being
already
acquitted
by
their
Law
,
could
not
be
tryed
again
here
.
Special
Verdict
was
found
in
the
Substance
of
which
was
,
That
was
seized
in
Fee
of
the
Lands
in
Question
,
who
by
Will
devised
it
to
and
others
for
years
,
with
power
to
grant
Estates
for
the
payment
hf
the
Debts
and
Legacies
of
the
Testator
,
the
Remainder
in
Tail
to
his
Brother
;
but
that
if
he
gave
Security
to
pay
the
said
Debts
and
Legacies
or
should
pay
the
same
within
a
time
limited
that
then
the
Trustees
should
assign
the
Term
to
him
,
entred
after
the
death
of
his
Brother
with
the
assent
of
the
said
Trustees
,
and
received
the
Profits
,
and
paid
all
the
Legacies
and
all
the
Debts
but
The
Iury
find
that
had
Issue
a
Daughter
only
by
his
first
Wife
,
after
whose
death
he
married
another
Woman
,
and
levied
a
Fine
,
and
made
a
Settlement
in
consideration
of
that
Marriage
upon
himself
for
Life
,
and
upon
his
Wife
for
Life
,
with
divers
Remainders
over
;
that
he
died
without
Issue
by
his
second
Wife
,
who
entred
,
and
five
years
were
past
without
any
claim
,
And
now
the
Heir
at
Law
in
the
name
of
the
Trustees
brought
this
Action
.
The
Questions
were
Whether
the
Term
for
years
thus
devised
to
the
Trustees
was
bound
by
this
Fine
and
Nonclaim
or
not
?
Whether
it
was
divested
and
turned
to
a
Right
at
the
time
of
the
Fine
levied
?
For
if
it
was
not
,
then
the
Fine
could
not
operate
upon
it
.
It
was
agreed
that
as
a
Disseisin
is
to
a
Freehold
,
so
is
a
divesting
to
a
Term
,
and
that
a
Fine
and
Non-claim
is
no
Barr
,
but
where
the
Party
at
the
time
of
the
levying
thereof
had
a
Will
to
enter
,
and
when
the
Estate
of
which
't
is
levyed
is
turned
to
a
Right
.
That
in
the
Case
at
the
Barr
the
Entry
of
was
tortious
,
because
the
legal
Estate
was
still
in
the
Trustees
.
But
if
he
had
gained
any
Right
by
his
Entry
't
is
only
a
Tenancy
at
Will
to
them
,
for
they
took
notice
of
the
Devise
,
and
he
entred
by
their
consent
;
and
such
a
Right
is
not
assignable
,
and
then
a
Fine
levyed
is
no
Barr.
To
prove
this
was
cited
,
where
the
the
Lord
granted
a
Copyhold
to
for
their
Lives
,
and
afterwards
by
Deed
enrolled
sold
the
Land
to
in
Fee
,
and
levyed
a
Fine
to
him
and
his
Heirs
,
and
five
years
passed
without
any
Claim
dyed
,
his
Son
entred
and
levyed
another
Fine
to
Trustees
to
the
use
of
himself
and
his
Wife
for
Life
,
the
Remainder
to
his
own
right
Heirs
;
the
Son
died
and
his
Wife
survived
,
who
having
a
Freehold
for
Life
distrained
,
and
the
Husband
of
brought
a
It
was
adjudged
that
this
Fine
and
Nonclaim
did
not
barr
those
in
Remainder
,
becase
the
Bargain
and
Sale
to
did
not
divest
their
Estate
and
turn
it
to
a
Right
;
for
the
Lord
did
what
he
might
do
,
and
accepted
what
he
might
lawfully
take
,
who
being
in
possession
by
virtue
of
a
particular
Estate
for
Life
,
could
not
by
this
acceptance
divest
the
Estate
of
her
who
had
the
Freehold
;
and
the
Fine
and
Nonclaim
could
not
do
it
;
for
to
what
purpose
should
he
make
any
Claim
when
he
was
in
actual
possession
of
the
thing
to
be
demanded
?
And
he
who
is
so
in
possession
need
not
make
any
Claim
either
to
avoid
a
Fine
or
a
collateral
Warranty
.
Now
though
at
the
Common
Law
there
must
be
to
create
an
Estate
of
's
Case
yet
any
thing
is
sufficient
to
make
an
Estate
in
which
neither
the
Inheritance
or
the
Title
of
the
Land
is
concerned
,
and
therefore
a
Fine
levyed
by
such
a
Tenant
is
no
Barr.
'T
is
true
if
a
Lease
be
made
for
an
hundred
years
in
Trust
to
attend
the
Inheritance
,
and
continues
in
possession
,
and
devises
to
another
for
fifty
years
,
and
levies
a
Fine
and
the
five
years
pass
without
Claim
,
he
being
still
in
possession
after
the
first
Lease
made
is
thereby
become
and
by
making
the
second
Lease
,
the
other
is
divested
and
turned
to
a
Right
,
though
he
was
not
a
Disseisor
,
and
so
't
is
barred
by
the
Fine
,
because
the
of
the
term
of
one
hundred
years
,
was
also
Owner
of
the
Inheritance
.
But
in
the
Case
at
the
Barr
shall
not
be
a
but
at
the
Election
of
the
Trustees
of
the
Term
of
years
,
to
prove
which
there
are
many
Authorities
in
the
Books
.
As
if
make
a
Lease
for
years
and
the
Lessee
enters
,
't
is
not
a
but
at
the
Election
of
him
who
hath
the
Freehold
,
and
even
in
such
Case
if
the
Tenant
of
the
Freehold
should
make
a
Grant
of
the
Land
't
is
good
,
though
not
made
upon
the
Land
it self
,
for
he
shall
not
be
taken
to
be
out
of
possession
but
at
his
own
Election
.
'T
is
like
the
common
Case
of
a
Mortgagee
for
years
where
the
Mortgagor
continues
in
possession
twenty
years
afterwards
,
and
pays
the
Interest
,
and
in
that
time
hath
made
Leases
and
levyed
a
Fine
,
this
shall
not
barr
the
Mortgagee
,
for
the
Mortgagor
is
but
Tenant
at
Will
to
him
.
The
Trustees
need
not
make
any
claim
in
this
Case
,
because
there
was
no
transmutation
of
the
possession
,
so
they
could
take
no
notice
of
the
Fine
.
'T
is
true
entred
by
their
consent
,
but
still
as
to
them
;
and
the
Acts
done
by
him
after
his
Entry
will
not
didest
this
Term
,
for
though
he
made
a
Bargain
and
Sale
of
the
Lands
,
yet
nothing
will
pass
thereby
but
what
of
right
ought
to
pass
.
He
likewise
demised
the
Lands
to
Vndertenants
for
years
,
but
't
is
not
found
,
that
they
entred
;
but
admitting
they
did
enter
,
yet
that
could
not
displace
this
Term
,
for
these
Tenants
claimed
no
more
than
for
one
or
two
years
and
made
no
pretence
to
the
whole
Term.
But
if
by
either
of
these
Acts
the
Term
should
be
divested
;
yet
still
it
must
be
at
the
election
of
those
who
have
the
Interest
in
it
.
The
Case
of
which
is
grounded
upon
is
an
Authority
to
this
purpose
,
which
was
,
Tenant
in
Tail
Tenant
at
Will
The
Question
in
which
Case
was
,
whether
by
the
Entry
of
the
Son
,
who
was
and
his
making
of
this
Lease
the
Father
was
disseised
of
the
Freehold
?
And
it
was
held
not
,
for
it
was
found
in
that
Verdict
that
he
occupying
at
Will
,
and
entring
by
his
Fathers
Assent
the
Lease
was
also
intended
to
be
made
by
his
Assent
.
But
on
the
other
side
it
was
said
that
this
Fine
was
a
Barr
by
the
express
Words
of
the
Statute
of
which
excludes
in
all
Cases
but
where
there
is
Fraud
or
the
person
is
incapable
,
or
where
the
Right
to
be
barred
is
not
divested
.
In
this
Case
had
an
Interest
and
present
Right
,
and
though
it
be
closed
with
a
Trust
,
yet
that
will
not
make
any
difference
.
Here
is
no
Fraud
,
for
the
Fine
was
levyed
by
Tenant
in
Tail
in
possession
;
but
if
there
had
been
Fraud
it
ought
to
be
found
,
otherwise
it
shall
not
be
presumed
.
This
is
not
like
for
there
the
Son
was
but
't
is
not
found
by
this
Verdict
that
There
is
no
difference
between
this
Term
and
a
Trust
of
a
Term
to
attend
the
Inheritance
,
whose
Interest
shall
be
barred
by
such
a
Fine
and
Nonclaim
,
because
the
Trust
is
included
in
the
Fine
,
and
therefore
the
Trustees
not
making
of
their
Claim
within
the
five
years
are
for
ever
excluded
.
It
cannot
be
denied
but
a
Term
for
years
is
such
an
Interest
which
may
be
barred
by
Fine
,
expresly
,
which
was
a
Lease
for
years
to
commence
after
a
Lease
then
in
being
should
be
determined
;
the
first
Lease
ended
;
the
second
Lessee
did
not
enter
,
but
the
Reversioner
did
,
and
made
a
Feoffment
,
and
levyed
a
Fine
and
five
years
passed
without
Entry
or
Claim
by
the
second
Lessee
;
it
was
adjudged
that
this
Fine
was
a
Barr
to
him
,
for
when
his
future
Interest
commenced
,
then
and
not
before
he
had
such
a
present
Interest
in
the
Land
,
which
might
be
divested
,
and
turned
to
a
Right
.
To
which
it
was
answered
,
that
this
differs
from
which
was
an
and
the
Case
of
which
was
an
Executory
Devise
had
still
continued
in
Possession
,
it
might
have
altred
the
Case
,
but
he
died
,
and
his
Wife
entred
,
and
then
the
five
years
passed
without
any
Claim
.
Special
Verdict
in
Ejectment
was
found
in
and
Iudgment
given
there
for
the
Plaintiff
;
and
now
a
Writ
of
Errour
was
brought
in
this
Court
,
and
the
Common
Error
assigned
.
The
Objection
was
to
the
Declaration
,
which
was
,
That
the
Plaintiff
declared
upon
a
Demise
made
which
must
be
the
day
of
the
same
Month
he
entred
and
that
the
Defendant
did
eject
him
So
that
it
appears
upon
the
Face
of
the
Declaration
that
the
Defendant
entred
before
the
Plaintiff
had
a
Title
;
for
the
Lease
commenced
on
the
and
the
Entry
was
on
the
of
that
Month.
And
it
was
said
that
this
agrees
with
a
former
Resolution
in
this
Court
where
the
Lease
was
made
the
for
five
years
which
must
be
the
by
vertue
whereof
the
Plaintiff
entred
,
and
that
the
Defendant
did
eject
him
,
which
must
be
before
the
commencement
of
the
Lease
.
The
Plaintiff
entred
as
a
Disseisor
by
his
own
shewing
,
and
thereupon
Iudgment
was
reversed
.
against
the
Defendant
to
shew
cause
why
he
executed
the
Office
of
a
The
Defendant
pleaded
that
the
said
Hundred
was
an
and
that
the
Office
of
Bayliff
was
an
and
that
the
Hundred
Court
was
an
held
from
three
Weeks
to
three
Weeks
before
the
Steward
thereof
;
that
the
Return
of
Writs
was
an
which
did
belong
to
the
said
Bayliff
;
that
King
was
seized
of
the
said
in
Fee
,
who
by
Letters
Patents
dated
,
did
grant
the
same
to
one
to
him
and
his
Heirs
,
and
that
by
several
Assignments
it
came
to
,
and
was
vested
in
the
Defendant
,
and
so
he
justified
to
have
To
this
Plea
the
Plaintiff
demurred
.
And
for
the
King
it
was
argued
,
that
this
Claim
was
not
good
.
First
as
to
the
manner
of
the
Grant
as
't
is
here
pleaded
,
that
the
King
was
seized
in
Fee
,
and
that
he
granted
the
That
such
a
Grant
can
never
include
the
Hundred
,
for
nothing
can
pass
in
the
but
what
was
mentioned
in
the
Premisses
.
The
Defendant
hath
derived
a
Title
from
the
Crown
to
this
Office
of
a
Bayliff
,
which
must
be
either
by
Grant
or
Prescription
.
It
cannot
be
by
Grant
,
for
't
is
a
Question
whether
the
Hundred
Court
can
now
be
separated
from
the
County
Court
;
it
hath
been
derivative
from
it
in
former
times
when
the
Sheriffs
did
let
those
Hundreds
to
farm
to
several
persons
who
put
in
Bayliffs
errant
to
the
great
oppression
of
the
People
,
which
was
the
occasion
of
the
making
of
the
Statute
of
by
which
such
Hundreds
were
united
and
rejoyned
to
the
Counties
,
as
to
the
Bailiwicks
thereof
,
except
such
as
were
then
granted
in
Fee
by
the
King
or
his
Ancestors
.
Now
these
Hundreds
were
usually
granted
to
Abbots
and
other
religious
persons
,
and
their
Possessions
coming
afterwards
to
the
King
by
the
dissolution
of
their
Abbies
and
Monasteries
are
now
merged
in
the
Crown
,
and
cannot
be
regranted
after
the
making
of
that
Statute
.
And
as
the
Defendnat
cannot
have
a
Title
by
Grant
,
so
he
hath
not
prescribed
to
have
this
Office
;
't
is
true
,
the
Plea
sets
forth
that
't
is
an
ancient
Office
,
but
that
is
not
a
Prescription
but
a
bare
Averment
of
its
Antiquity
.
But
admitting
he
had
alledged
it
by
way
of
he
could
not
do
it
by
a
to
have
A
man
cannot
preserive
to
have
Cognizance
of
Pleas
in
an
Hundred
Court
,
he
may
in
a
County
Palatine
,
because
't
is
of
a
mixed
Iurisdiction
.
Neither
can
he
prescribe
to
have
Return
of
the
King's
Writs
,
because
they
are
matter
of
Record
.
Here
is
a
good
Title
pleaded
.
It
was
never
yet
denied
,
but
that
the
King
may
be
seized
in
Fee
of
an
Hundred
,
and
that
he
may
grant
the
Statutes
are
plain
in
it
,
for
otherwise
how
came
any
Lords
to
have
Hundreds
in
Fee
,
but
by
the
Kings
Grants
?
And
't
is
as
plain
that
Hundreds
may
be
divided
from
the
County
for
else
to
what
purpose
was
the
Statute
of
made
,
which
adjoins
Hundreds
and
Wapentakes
to
the
Counties
,
and
provides
that
they
shall
never
be
separated
again
,
this
shews
that
they
were
divided
at
that
time
.
The
Objections
which
have
been
made
are
,
That
the
Defendant
cannot
have
a
Title
to
this
Office
by
Grant
,
and
he
hath
not
made
any
Prescription
to
it
.
The
Reasons
given
why
he
could
not
have
it
by
Grant
were
,
because
ancient
Hundreds
which
were
united
to
the
Counties
by
the
Statute
of
could
never
afterwards
be
divided
from
them
by
any
Grant
of
the
King
,
and
those
which
were
excepted
in
that
Statute
,
as
being
granted
in
Fee
by
the
King
or
his
Ancestors
,
when
they
come
again
to
the
Crown
cannot
be
regranted
,
because
they
are
merged
in
it
.
In
answer
to
which
it
was
said
that
such
ancient
Liberties
,
which
were
created
by
the
Crown
and
did
subsist
by
the
King
's
Grant
before
the
Statute
of
when
afterwards
they
came
to
the
King
were
not
merged
,
but
remained
a
distinct
Interest
in
him
.
The
Hundred
of
in
the
County
of
was
such
a
Liberty
;
it
was
an
ancient
Hundred
and
granted
by
not
in
Fee
,
but
this
Grant
was
long
before
the
making
of
the
Statute
of
and
yet
afterwards
this
very
Hundred
was
granted
to
several
other
persons
by
the
suceeding
Kings
of
which
shews
it
was
merged
in
the
Crown
,
when
it
came
to
the
King
.
The
other
Objection
was
,
that
doth
not
lie
in
Prescription
Now
as
to
that
,
though
it
be
true
,
that
no
Title
by
Prescription
can
be
made
to
such
Franchises
and
Liberties
which
cannot
be
seized
as
forfeited
before
the
cause
of
Forfeiture
appears
on
Record
,
because
Prescription
being
an
Vsage
doth
not
extend
to
such
things
which
cannot
be
had
without
matter
of
Record
:
Yet
my
Lord
is
clear
that
a
good
Title
may
be
made
to
hold
Pleas
,
Leets
,
Hundreds
,
by
Prescripteon
only
without
Matter
of
Record
.
But
notwithstanding
what
was
said
to
maintain
this
Plea
Iudgment
was
given
against
the
Defendant
.
THE
Defendant
was
convicted
of
at
the
and
the
Record
being
removed
into
this
Court
by
he
pleaded
his
Pardon
,
and
had
Iudgment
But
being
once
convicted
the
Dean
and
Chapter
of
did
seize
his
Goods
as
forfeited
by
that
Conviction
,
who
thereupon
(
although
he
was
out
of
the
Court
by
that
Iudgment
)
yet
he
moved
by
his
Council
to
quash
the
Indictment
.
The
Exceptions
taken
were
That
the
Indictment
was
That
there
was
no
President
to
warrant
such
an
Indictment
,
for
this
may
be
the
Presentment
of
another
Iury
;
it
being
very
incoherent
to
say
that
it
was
presented
by
the
Oaths
of
twelve
Men
,
that
the
Iury
do
present
.
It
ought
to
be
and
so
is
the
form
of
this
Court
,
as
the
Clerk
of
the
Crown
inform'd
them
.
They
present
that
and
two
others
did
make
an
Assault
on
the
Body
of
the
deceased
,
and
that
did
wound
him
with
a
so
that
't
is
uncertain
who
did
shoot
,
and
what
was
discharged
,
which
ought
to
be
certainly
laid
in
the
Indictment
.
's
Indictment
for
Poisoning
that
the
said
not
knowing
the
Beer
to
be
poyson'd
,
but
being
perswaded
by
but
did
not
say
and
so
it
not
appearing
what
thing
he
did
drink
(
which
ought
to
have
been
expresly
alledged
)
the
Indictment
was
held
insufficient
.
And
the
reason
is
plain
,
for
an
Indictment
for
Felony
being
a
Declaration
for
the
King
against
the
Life
of
a
Subject
,
ought
to
set
forth
a
sufficient
certainty
of
the
Fact
,
which
shall
not
be
supplied
either
by
Argument
,
or
any
intendment
whatsoever
.
And
therefore
in
's
Case
the
Defendant
was
indicted
for
discharging
a
Gun
upon
and
doth
not
say
for
which
reason
that
Indictment
was
also
held
insufficient
;
because
in
all
Indictments
for
Murder
they
ought
expresly
to
alledge
a
stroke
given
.
For
these
Reasons
the
Indictment
was
quashed
,
and
a
new
Roll
was
made
,
on
which
this
Indictment
and
were
both
entred
,
and
Iudgment
and
this
was
done
to
avoid
the
seizure
.
And
afterwards
in
it
was
said
by
the
Chief
Iustice
,
that
it
must
be
intended
these
were
two
persons
,
for
no
Court
would
justifie
such
a
Iudgment
.
IN
Assault
and
Battery
the
Defendant
pleaded
a
Release
of
all
Actions
,
The
Plaintiff
replied
,
that
the
Release
was
gotten
by
duress
,
The
Defendant
rejoyned
and
shewed
cause
why
it
was
not
gotten
by
duress
,
but
that
he
sued
forth
a
and
did
Arrest
him
and
that
the
Release
was
voluntary
,
The
Plaintiff
surrejoyns
,
and
saith
,
that
it
was
gotten
by
duress
,
that
it
was
voluntary
Vpon
this
Issue
the
Cause
was
tryed
,
and
the
Plaintiff
had
a
Verdict
;
and
now
it
was
moved
in
Arrest
of
Iudgment
,
that
he
ought
not
to
conclude
to
the
Country
after
a
Traverse
,
because
a
Traverse
it self
is
Negative
,
and
therefore
the
Defendant
ought
to
have
joyned
issue
in
the
Affirmative
;
't
is
true
,
if
issue
had
been
joyned
before
the
Traverse
it
might
have
been
helped
by
the
Statute
of
Ieofails
,
but
it
was
not
so
in
this
Case
;
and
therefore
the
Iudgment
was
Arrested
.
IN
Ejectment
upon
the
Demise
of
Mr.
The
Iury
found
a
special
Verdict
,
the
substance
of
which
was
That
Sir
was
seised
in
Fee
of
the
Lands
in
question
,
in
the
County
of
and
being
so
seised
,
did
in
the
year
devise
the
same
to
Mrs.
for
Life
,
remainder
over
to
in
Tail
,
and
that
he
made
Mrs.
Executrix
of
his
Will
,
which
was
found
That
afterwards
in
the
year
the
said
Sir
in
Writing
,
but
what
was
contained
in
the
said
last
mentioned
Will
They
find
that
Sir
in
the
year
died
seised
of
those
Lands
,
and
that
Mrs.
conveyed
the
same
to
Mr.
's
Father
,
whose
Heir
he
is
,
and
that
the
Defendant
Sir
is
Cosin
and
Heir
to
Sir
The
Question
upon
this
special
Verdict
was
,
whether
the
making
of
this
last
Will
was
a
of
the
former
or
not
It
was
argued
this
Term
by
Mr.
and
in
Term
following
by
Serjeant
for
the
Plaintiff
,
that
it
was
not
a
revocation
.
In
their
Arguments
it
was
admitted
that
a
Will
in
it's
nature
was
revocable
at
all
times
,
but
then
it
must
be
either
by
an
express
or
implied
revocation
.
That
the
making
of
this
latter
Will
cannot
be
intended
to
be
an
implied
revocation
of
the
former
;
for
if
so
,
then
the
Land
must
also
be
supposed
to
be
devised
contrary
to
the
express
disposition
in
the
first
Will
,
and
that
would
be
to
add
to
the
Record
,
which
finds
,
that
what
the
last
Will
was
It
is
possible
that
a
subsequent
Will
may
be
made
so
as
not
to
destroy
but
consist
with
a
former
;
for
the
Testator
may
have
several
parcels
of
Land
,
which
he
may
devise
to
many
persons
by
divers
Wills
,
and
yet
all
stand
together
.
A
man
may
likewise
by
a
subsequent
Will
revoke
part
and
confirm
the
other
part
of
a
former
Will
;
and
therefore
admitting
there
was
such
a
Will
in
this
case
,
't
is
still
more
natural
that
it
should
confirm
than
revoke
the
other
.
If
the
Testator
had
purchased
new
Lands
,
and
had
devised
the
same
by
a
subsequent
Will
,
no
person
will
affirm
that
to
be
a
revocation
of
the
former
Will
.
When
a
Man
hath
made
a
disposition
of
any
part
of
his
Estate
,
't
is
a
good
Will
as
to
that
part
;
so
is
likewise
the
disposal
of
every
other
part
;
they
are
all
several
Wills
,
tho'
taken
altogether
,
they
are
an
intire
disposition
of
the
whole
Estate
.
Nothing
appears
here
to
the
contrary
,
but
that
the
latter
Will
may
be
only
a
devise
of
his
personal
Estate
,
or
a
confirmation
of
the
former
,
which
the
Law
will
not
allow
to
be
destroyed
without
an
express
revocation
.
The
Case
of
is
much
to
this
purpose
which
was
,
a
devise
in
Fee
to
his
younger
Son
;
and
in
another
Will
(
after
the
Testators
Marriage
to
a
second
Wife
)
he
devised
the
same
Lands
to
his
Wife
for
Life
,
paying
yearly
to
his
younger
Son
It
was
the
Opinion
of
that
both
these
Wills
might
stand
together
,
and
that
one
was
not
a
revocation
of
the
other
;
because
it
appeared
by
the
last
Will
that
he
only
intended
to
make
a
Provision
for
his
Wife
,
but
not
to
alter
the
Devise
to
his
Son
.
So
where
a
Man
had
two
Sons
by
several
Venters
,
and
devises
the
Lands
to
his
eldest
Son
for
Life
,
and
to
the
Heirs
Males
of
his
Body
,
and
for
default
of
such
Issue
to
the
Heirs
Males
of
his
second
Son
,
and
the
Heirs
Males
of
their
Bodies
,
Remainder
to
his
own
right
Heirs
,
and
then
made
a
Lease
of
years
to
his
youngest
Son
,
to
commence
after
the
death
of
the
Testator
:
the
youngest
Son
entred
and
surrendred
the
Term
to
his
elder
Brother
,
who
made
a
Lease
to
the
Defendant
,
and
then
dyed
without
Issue
;
afterwards
the
youngest
Brother
entred
and
avoided
this
Lease
made
by
his
Brother
.
It
was
held
that
the
Lease
thus
made
to
him
was
not
a
revocation
of
the
devise
of
the
Inheritance
to
his
Brother
,
tho'
it
was
to
commence
at
the
same
time
in
which
the
devise
of
the
Inheritance
was
to
take
effect
,
but
it
was
a
revocation
the
Term
only
,
that
the
elder
Brother
should
not
enter
during
that
time
,
for
the
devise
shall
not
be
revoked
without
express
words
;
and
that
tho'
the
Testator
had
departed
with
the
whole
Fee
without
reserving
an
Estate
for
Life
to
himself
,
yet
the
Law
created
such
an
Estate
in
him
,
till
the
future
Vse
should
commence
;
and
in
such
case
the
right
Heirs
cannot
take
by
Purchase
but
by
Descent
;
so
that
here
the
Inheritance
in
Fee
simple
was
not
vested
in
the
elder
Brother
by
Descent
,
for
then
the
Lease
which
he
made
would
be
executed
out
of
the
Feé
and
the
younger
Brother
would
be
bound
thereby
.
But
in
the
Case
at
the
Bar
,
there
is
no
colour
of
a
Revocation
.
Vpon
the
nature
of
the
Verdict
,
to
which
nothing
can
be
added
,
neither
can
it
be
diminished
,
for
whatever
is
found
must
be
positive
,
and
not
doubtful
,
because
an
Attaint
lies
if
the
Verdict
be
false
.
Therefore
the
Court
cannot
take
notice
of
that
which
the
Iury
hath
not
found
:
Now
here
the
entry
of
the
Iudgment
is
,
But
what
can
be
read
or
heard
where
nothing
appears
?
That
Case
in
the
Year-Book
of
the
comes
not
up
to
this
question
,
it
was
an
Action
of
Trespass
for
the
taking
of
his
Goods
.
The
Defendant
pleaded
that
the
Goods
did
appertain
to
one
who
before
the
supposed
Trespass
devised
the
same
to
him
,
and
made
him
Executor
,
The
Plaintiff
replied
,
that
the
said
made
his
last
Will
,
and
did
constitute
him
Executor
.
And
upon
a
Demurrer
to
this
Replication
,
because
he
had
not
traversed
that
the
Defendant
was
Executor
,
it
was
argued
for
the
Plaintiff
,
that
this
last
Will
was
a
Revocation
of
the
former
,
for
tho'
there
were
no
express
words
of
Revocation
,
yet
by
the
very
making
another
the
Law
revoked
the
former
;
and
to
prove
this
,
two
Instances
were
then
given
,
That
if
a
Man
devise
his
Lands
to
two
,
and
by
another
Will
gives
it
to
one
of
them
and
dies
,
he
to
whom
't
is
devised
by
the
last
Will
shall
have
it
.
So
likewise
,
if
the
Testator
by
one
Will
giveth
Lands
to
his
Son
,
and
by
another
Will
deviseth
the
same
again
to
his
Wife
,
then
makes
an
Alienation
,
and
taketh
back
an
Estate
to
himself
,
and
dieth
;
and
in
an
Assise
brought
between
the
Widow
and
the
Son
,
he
was
compelled
by
the
Court
to
shew
that
it
was
his
Father's
intention
that
he
should
have
the
Land
,
otherwise
the
last
Devisee
will
be
entituled
to
it
.
Now
both
these
Instances
are
not
sufficient
to
evince
that
the
last
Will
in
this
Case
was
a
revocation
of
that
under
which
the
Plaintiff
claims
,
because
those
Wills
were
contradictory
to
each
other
;
for
by
one
the
Land
was
devised
to
the
Son
,
and
by
the
other
to
the
Wife
,
they
both
had
their
existence
at
one
and
the
same
time
,
and
it
appear'd
they
were
made
to
distinct
purposes
,
but
here
no
body
can
tell
what
was
designed
or
intended
by
the
Testator
in
this
subsequent
Will
.
And
therefore
it
hath
been
held
,
that
where
a
Man
devised
Legacies
to
his
two
Brothers
,
and
afterwards
in
his
sickness
was
asked
to
leave
Legacies
to
his
said
Brothers
,
he
replied
he
would
leave
them
nothing
,
but
devised
a
small
Legacy
to
his
Godson
,
and
died
.
This
Discourse
was
set
down
in
a
Cocidil
,
which
,
together
with
the
Will
was
proved
in
common
form
:
This
Codicil
was
not
a
revocation
of
the
Legacies
given
to
the
Brothers
,
because
the
Testator
took
no
notice
of
the
Will
which
he
had
made
in
the
time
of
his
Health
,
and
what
he
intended
by
these
words
which
were
set
down
in
the
Codicil
.
If
therefore
doubtful
words
shall
not
make
a
revocation
of
a
former
Will
,
a
subsequent
Will
,
especially
when
the
contents
of
such
Will
doe
not
appear
,
shall
not
revoke
a
former
.
It
was
argued
for
the
Defendant
.
The
only
Objection
is
,
That
a
latter
Will
being
made
,
and
it
not
appearing
to
the
Iury
what
was
contained
in
that
Will
,
it
can
be
no
revocation
,
because
no
express
words
of
revocation
can
be
found
,
or
any
thing
which
is
contradictory
to
the
first
Will
,
and
without
the
one
or
the
other
,
a
former
Will
cannot
be
revoked
.
But
this
is
contrary
to
all
the
Authorities
in
the
Books
,
which
shew
that
a
Testament
which
is
good
in
the
beginning
may
become
void
by
making
of
a
subsequent
Will
,
by
words
of
revocation
,
or
by
words
contradicting
each
other
;
for
in
such
cases
't
is
not
doubted
but
the
first
Will
is
revoked
.
But
the
meaning
must
be
,
that
by
the
very
making
of
a
latter
Will
the
first
is
become
void
.
This
may
be
collected
from
the
nature
of
a
Will
,
which
a
Man
hath
power
to
alter
in
part
or
in
all
,
at
any
time
during
his
Life
;
but
when
he
makes
a
new
Will
,
it
must
be
presumed
that
he
declared
his
whole
mind
in
it
;
for
if
his
Intentions
are
to
alter
any
part
,
the
Law
hath
appointed
a
proper
Instrument
for
that
purpose
,
which
is
a
Codicil
;
but
when
he
maketh
't
is
a
sign
that
he
intended
nothing
of
his
former
Will
should
take
any
effect
,
when
he
had
so
easie
a
method
to
alter
it
in
part
.
Every
subsequent
act
of
the
Testator
shews
that
he
intends
a
revocation
,
either
by
word
or
deed
;
and
there
is
great
reason
why
it
should
be
so
,
because
every
revocation
of
a
Will
is
in
the
nature
of
restitution
to
the
Heir
.
It
cannot
be
denied
but
that
a
Will
may
be
revoked
by
words
without
writing
,
before
the
making
of
the
Statute
against
Frauds
,
As
if
a
Man
should
say
that
he
would
alter
his
Will
when
he
came
to
such
a
place
,
and
he
should
dye
before
he
came
thither
,
this
is
a
revocation
.
But
it
never
was
yet
controverted
but
a
revocation
may
be
by
Deed
;
as
if
a
Man
devise
Lands
to
another
,
and
afterwards
makes
a
Feoffment
to
the
use
of
his
Will
,
this
was
always
held
a
revocation
.
So
it
is
if
Lands
which
are
well
given
by
a
Will
are
afterwards
by
another
Will
devised
to
the
Poor
of
the
Parish
tho'
this
last
Will
is
void
,
because
the
Devisees
have
not
a
capacity
to
take
,
yet
't
is
a
revocation
of
the
first
Will
;
and
shall
a
Will
which
is
lost
be
of
less
authority
than
such
which
is
void
?
'T
is
not
denied
but
that
there
may
be
a
subsequent
Will
which
may
not
contradict
the
first
;
so
is
's
Case
,
where
both
Wills
did
appear
to
be
consistent
;
but
that
is
not
parallel
with
this
,
because
the
Iury
hath
found
that
the
Testator
made
which
word
imports
a
distinct
Will
from
the
former
.
'T
is
agreed
also
,
that
a
Man
may
make
many
Wills
,
and
that
they
may
stand
together
;
and
it
must
also
be
agreed
that
such
are
but
partial
Wills
,
because
they
are
but
pieces
of
the
whole
,
tho'
written
in
several
papers
;
but
when
't
is
found
in
general
that
was
made
,
it
must
naturally
be
intended
of
his
whole
Estate
.
The
Case
in
the
Year
Book
of
is
an
Authority
in
point
,
where
in
Trespass
the
Defendant
justified
the
taking
of
the
Goods
by
vertue
of
a
Will
by
which
they
were
devised
to
him
,
and
of
which
Will
he
was
made
Executor
.
The
Plaintiff
replied
,
that
the
Testator
made
another
Will
,
and
thereby
did
constitute
him
Executor
;
and
this
was
held
a
good
Replication
without
a
Traverse
that
the
Defendant
was
Executor
,
because
by
the
making
of
the
second
Will
the
other
was
void
in
Law
;
and
therefore
the
shewing
that
he
was
Executor
was
not
to
avoid
the
first
Will
(
which
the
Law
doth
adjudge
to
be
of
no
force
)
but
to
make
to
himself
a
Title
to
the
Goods
taken
out
of
his
possession
.
If
a
Man
should
make
twenty
Codicils
without
dates
,
they
may
all
stand
together
;
but
if
he
make
two
Wills
without
dates
they
are
both
void
;
the
reason
is
because
by
the
making
of
the
later
Will
the
first
is
destroyed
;
and
it
being
incertain
which
is
the
last
,
rather
than
the
Rules
of
Revocation
should
be
broken
they
adjudge
both
to
be
void
.
It
cannot
be
reasonably
objected
,
that
this
later
Will
may
devise
the
same
Lands
to
the
same
person
;
for
why
should
a
Man
be
thought
so
vain
?
Besides
if
it
was
so
,
the
Plaintiff
should
have
claimed
under
that
Will
.
But
this
cannot
be
the
same
Will
,
because
't
is
contrary
to
the
Verdict
which
hath
not
found
it
to
be
besides
't
is
in
the
Case
of
an
Heir
who
shall
not
be
disinherited
by
an
intendment
that
the
later
Will
is
the
same
with
the
first
.
Neither
can
the
Statute
of
Wills
have
any
influence
upon
this
Matter
.
'T
is
true
,
at
the
Common
Law
no
Land
could
be
devised
by
a
Will
,
but
now
by
the
Statutes
of
in
Socage
may
be
devised
by
Will
;
and
if
held
in
Knights
Service
then
only
two
parts
in
three
,
but
it
must
be
by
the
last
Will
.
Now
how
can
any
Man
say
that
this
shall
be
a
Devise
of
the
Lands
by
the
last
Will
of
the
Testator
,
when
the
Iury
find
he
made
the
Contents
whereof
are
not
necessary
to
be
shewed
,
because
the
Defendant
claims
as
Heir
,
and
not
as
Executor
.
It
must
not
be
intended
that
this
Will
shall
confirm
or
stand
with
the
other
,
because
the
Law
is
otherwise
;
and
therefore
if
the
Plaintiff
would
have
supported
his
Will
by
which
he
claims
,
he
ought
to
shew
the
other
Will
,
by
which
it
must
appear
that
nothing
is
contradictory
to
it
,
or
that
it
doth
confirm
the
first
;
but
if
Presumptions
shall
be
admitted
it
must
be
in
favour
of
the
Heir
,
for
nothing
shall
be
presumed
to
disinherit
him
.
Afterwards
in
Iudgment
was
given
for
the
Plaintiff
,
and
a
Writ
of
Error
was
brought
in
the
House
of
Peers
to
reverse
that
Iudgment
,
but
it
was
affirmed
.
Writ
of
Error
was
brought
to
reverse
a
Iudgment
in
the
in
an
for
Lands
in
the
County
of
in
which
a
Special
Verdict
was
found
,
was
seized
in
Fee
of
the
Lands
in
question
,
who
had
Issue
two
Daughters
had
Issue
the
Father
devised
unto
the
Children
of
his
Daughter
and
to
his
other
Daughter
,
the
Rents
and
Profits
of
his
Mannor
of
for
thirty
years
,
to
hold
the
three
Grandchildren
to
have
one
Moiety
and
his
Daughter
the
other
Moiety
And
if
it
happen
that
either
of
them
should
die
before
the
thirty
years
expired
,
then
the
said
Term
should
be
for
the
benefit
of
the
Survivor
;
and
if
they
all
die
,
then
the
same
was
devised
over
to
other
Relations
.
Afterwards
he
made
a
in
these
words
one
of
the
Granchildren
,
died
without
Issue
.
another
of
the
Grandchildren
,
died
,
but
left
Issue
.
The
first
Question
was
,
whether
the
Power
given
to
the
Executors
by
the
will
take
away
that
Interest
which
was
vested
in
the
Grandchildren
by
the
Will
?
argued
that
it
would
not
,
because
the
Executors
had
only
a
bare
Authority
to
let
it
or
improve
it
for
the
benefit
of
the
Children
,
there
was
no
Devise
of
the
Land
to
them
.
If
Power
be
given
to
Executors
to
sell
Lands
,
't
is
only
an
Authority
and
not
an
Interest
in
them
;
but
a
bare
Authority
only
to
let
is
of
much
less
importance
.
After
the
Testator
had
devised
the
Profits
of
these
Lands
to
his
Grandchildren
and
Daughter
equally
to
be
divided
during
the
term
,
and
had
provided
that
if
any
dye
without
Issue
,
that
then
it
should
survive
,
and
if
all
dye
,
then
to
remain
over
to
collateral
Relations
,
being
dead
,
but
leaving
Issue
,
her
Interest
shall
survive
to
or
go
to
such
her
Issue
?
As
to
that
he
held
that
the
Testator
made
them
Tenants
in
Common
,
by
equal
parts
,
and
therefore
he
devised
it
by
Moieties
,
in
which
there
can
be
no
Survivorship
.
'T
is
like
a
Devise
to
the
Wife
for
life
,
and
after
her
decease
to
his
three
Daughters
and
if
any
of
them
die
before
the
other
,
then
the
Survivors
to
be
her
Heirs
and
if
they
all
die
without
then
to
others
the
Daughters
had
an
Estate
Tail
,
and
there
was
no
Survivorship
.
So
in
this
Case
it
shall
never
go
to
the
third
Grandchild
as
long
as
any
Issue
of
the
second
are
living
.
On
the
other
side
it
was
argued
that
they
are
Ioyntenants
and
not
Tenants
in
Common
,
for
the
Testator
having
devised
one
Moiety
to
his
three
Grandchildren
joyntly
by
equal
parts
that
will
make
them
Ioyntenants
.
But
the
Court
were
all
of
Opinion
that
the
words
in
the
Will
shew
them
to
be
Tenants
in
Common
,
for
runs
to
the
Moieties
.
So
the
Iudgment
was
affirmed
.
THE
Statute
of
prohibites
a
Citation
out
of
the
Diocess
wherein
the
Party
dwelleth
,
except
in
certain
Cases
therein
mentioned
,
one
whereof
is
,
and
others
,
who
lived
in
the
but
occupied
Lands
in
the
were
taxed
by
the
Parishioners
,
where
they
used
those
Lands
,
for
the
Bells
of
the
Church
,
and
they
refusing
to
pay
this
Tax
a
Suit
was
commenced
against
them
in
the
who
thereupon
suggested
this
Matter
,
and
prayed
a
Prohibition
,
because
they
were
not
to
be
charged
with
this
Tax
,
it
being
only
for
Church
Ornaments
.
And
a
Prohibition
was
granted
,
the
reason
given
was
,
because
't
is
a
personal
charge
to
which
the
Inhabitants
only
are
liable
,
and
not
those
who
only
occupy
in
that
Parish
and
live
in
another
;
but
the
repairing
of
the
Church
is
a
real
Charge
upon
the
Land
let
the
Owner
live
where
he
will
.
THE
King
having
set
forth
a
did
on
the
day
of
last
by
Order
of
Council
enjoyn
that
the
same
should
be
read
twice
in
all
Churches
,
and
that
the
Bishops
should
distribute
it
through
their
respective
Diocesses
that
it
might
be
read
accordingly
.
The
Archbishop
of
(
who
then
was
)
together
with
six
other
Bishops
petitioned
the
King
,
setting
forth
that
this
Declaration
was
founded
upon
a
dispensing
Power
,
which
had
been
declared
illegal
in
Parliament
,
and
therefore
they
could
not
in
Honour
or
Conscience
make
themselves
Parties
to
the
Distribution
and
Publication
of
this
Declaration
,
who
thereupon
were
summoned
before
the
King
in
Council
,
and
refusing
there
to
give
Recognizance
to
appear
before
the
Court
of
they
were
committed
to
the
Tower
by
Warrant
of
the
Council-Board
.
The
Attorney
General
moved
for
a
and
the
same
Morning
in
which
that
Motion
was
made
Sir
Lieutenant
of
the
Tower
returned
the
same
,
and
they
were
all
brought
into
the
Court.
The
Substance
of
the
Return
was
,
That
they
were
committed
to
his
Custody
by
Warrant
under
the
Hands
and
Seals
of
the
Lord
Chanchellor
and
also
naming
more
of
the
Lords
of
the
Privy-Council
,
for
contriving
,
making
and
publishing
a
Seditious
Libel
against
the
King
,
Then
it
was
prayed
that
the
Return
might
be
filed
,
and
that
the
Information
which
was
then
exhibited
against
them
for
this
Crime
might
be
read
,
and
that
they
might
all
plead
and
Mr.
oppsed
the
reading
of
it
,
and
moved
that
the
Bishops
might
be
discharged
,
because
they
were
not
legally
before
the
Court
;
for
it
appears
upon
the
Return
that
there
is
no
lawful
cause
of
Commitment
,
and
that
for
two
reasons
.
Because
the
persons
committing
had
not
any
Authority
so
to
do
;
for
upon
the
Return
it
appears
that
they
were
committed
by
several
Lords
the
Council
,
whereas
it
should
have
been
by
so
many
Lords
Council
,
or
by
Order
of
Council
.
They
ought
not
to
be
committed
for
this
Fact
,
which
is
only
a
Misdemeanour
.
The
Bishops
are
Peers
,
and
therefore
the
Process
ought
to
be
a
Summons
by
way
of
out
of
the
Crown
Office
,
and
not
to
commit
them
the
first
time
.
If
a
Man
comes
in
voluntarily
he
cannot
be
charged
with
an
Information
;
neither
can
a
person
,
who
is
found
in
Court
by
any
Process
be
so
charged
if
it
be
illegal
,
as
if
a
Peer
be
committed
by
replyed
,
that
when
a
Commitment
was
made
by
the
Lord
Chief
Iustice
of
this
Court
his
Name
is
to
the
Warrant
,
but
not
his
Office
;
't
is
not
said
for
he
is
known
to
be
so
;
and
why
should
not
a
Commitment
by
such
persons
be
as
good
as
a
Commitment
by
Sir
That
it
was
enough
for
the
Officer
to
return
his
Warrant
,
and
when
that
is
done
the
Court
will
presume
that
the
Commitment
was
by
the
Power
which
the
Lords
in
Council
had
,
and
not
by
that
Power
which
they
had
not
.
To
which
it
was
answered
by
Mr.
that
the
Lord
Chief
Iustice
always
carries
an
Authority
with
him
to
commit
where-ever
he
goes
in
but
the
Lords
of
the
Privy
Council
have
not
so
large
a
Power
;
for
though
they
be
Lords
of
the
Council
always
,
yet
they
do
not
always
act
in
Council
.
Then
the
Statute
of
was
read
,
in
which
there
is
mention
made
of
a
Commitment
by
the
Lords
of
the
Privy
Concil
,
But
it
was
answered
that
that
Statute
was
to
relieve
against
illegal
Commitments
,
and
those
enumerated
in
that
Act
were
such
only
,
and
none
else
.
And
it
was
strongly
insisted
,
that
Peers
of
the
Realm
cannot
be
committed
at
the
first
instance
for
a
Misdemeanour
before
Iudgment
;
and
that
no
President
can
be
shewed
where
a
Peer
hath
been
brought
in
by
which
is
the
first
Process
for
a
bare
Misdemeanour
.
The
constant
Proceedings
in
the
upon
such
Informations
were
First
the
Lord
Chancellor
sent
a
Letter
to
the
person
,
then
if
he
did
not
appear
,
an
Attachment
went
forth
The
Kings
Council
answered
that
a
Peer
may
be
committed
for
the
Breach
of
the
Peace
,
for
which
Sureties
are
to
be
given
,
and
can
there
be
any
greater
Breach
of
the
Peace
than
a
Libel
against
the
King
and
Government
?
'T
is
certainly
such
a
Breach
of
the
Peace
for
which
Sureties
ought
to
be
demanded
;
for
where
there
is
any
seditious
Act
there
must
be
a
Breach
of
the
Peace
,
and
if
Sureties
are
not
given
then
the
person
must
be
committed
.
The
Objections
were
over-ruled
by
three
Iudges
.
Then
the
Information
was
read
,
which
in
Substance
was
,
That
the
King
by
vertue
of
his
Prerogative
did
on
the
day
of
in
the
third
year
of
his
Reign
publish
his
gracious
Declaration
for
Liberty
of
Conscience
,
which
was
set
forth
That
afterwards
in
the
fourth
year
of
his
Reign
,
the
King
did
publish
another
Declaration
reciting
the
former
in
which
he
expressed
his
care
that
the
Indulgence
by
him
granted
might
be
preserved
,
that
he
caused
this
last
Declaration
to
be
printed
;
and
to
manifest
his
favour
more
signally
towards
his
Subjects
,
on
the
day
of
it
was
Ordered
in
Council
that
his
Declaration
dated
the
day
of
last
,
be
read
on
two
several
days
in
all
Churches
and
Chappels
in
the
Kingdom
,
and
that
the
Bishops
cause
the
same
to
be
distributed
through
their
several
Diocesses
,
That
after
the
making
of
the
said
Order
,
the
Bishops
(
naming
them
)
did
amongst
themselves
to
lessen
the
Authority
and
Prerogative
of
the
King
,
and
to
elude
the
said
Order
;
and
in
further
prosecution
of
their
said
Conspiracy
they
with
Force
and
Arms
did
on
the
day
of
unlawfully
,
maliciously
frame
,
compose
and
write
a
Libel
of
the
King
,
subscribed
by
them
,
which
they
caused
to
be
published
under
the
pretence
of
a
Petition
.
Then
the
Petition
was
set
forth
The
King's
Council
moved
that
the
Defendants
might
plead
for
so
(
they
said
)
is
the
course
of
the
Court
when
a
Man
is
brought
thither
in
Custody
,
or
appears
upon
Recognizance
.
But
the
Council
on
the
other
side
prayed
an
Imparlance
and
a
Copy
of
the
Information
,
and
argued
that
the
Defendants
ought
not
to
plead
because
their
Plea
ought
to
be
put
in
Writing
,
and
that
they
ought
to
have
time
to
consider
what
to
plead
;
that
it
was
impossible
to
make
any
Defence
when
they
did
not
know
the
Accusation
,
and
that
the
Practice
of
the
Court
anciently
was
with
them
.
'T
is
true
,
when
a
is
taken
out
,
and
the
Party
doth
not
appear
but
is
brought
in
by
he
shall
plead
and
the
reason
is
,
because
he
hath
given
delay
to
the
Cause
:
So
't
is
likewise
in
Cases
of
Felony
or
Treason
,
but
not
to
an
Information
for
a
Misdemeanour
.
Then
the
Clerk
of
the
Crown
informed
the
Court
that
it
was
the
Course
to
plead
in
these
following
Cases
when
the
person
appears
upon
a
Recognizance
,
or
or
is
a
Prisoner
in
Custody
upon
any
Information
for
a
Misdemeanour
where
no
Process
issued
out
to
call
him
in
.
As
to
the
Objection
that
the
Defendants
cannot
make
any
Defence
without
a
Copy
of
the
Information
;
the
Vsage
is
otherwise
even
in
Cases
where
a
Man's
Life
is
concerned
,
and
what
greater
difficulty
can
there
be
to
defend
an
Accusation
for
a
Misdemeanour
than
a
Charge
for
High-Treason
?
certainiy
the
Defendants
all
know
whether
they
are
innocent
or
not
.
These
Points
being
over-ruled
by
the
Court
,
the
Archbishop
offered
a
Plea
in
writing
,
the
Substance
of
which
was
,
that
they
(
naming
all
the
Defendants
)
were
Peers
of
Parliament
,
and
ought
not
to
be
compelled
to
answer
this
Misdemeanour
immediately
,
but
they
ought
to
appear
upon
due
Process
of
Law
,
and
upon
their
Appearance
to
have
a
Copy
of
the
Information
,
and
afterwards
to
imparle
;
and
because
they
were
not
brought
in
by
Process
,
they
pray
the
Iudgment
of
the
Court.
This
Plea
was
offered
to
the
end
that
what
was
denied
before
upon
a
Motion
might
be
settled
by
the
Opinion
of
the
Court
,
but
it
was
over
ruled
.
Then
they
pleaded
severally
Not-Guilty
,
and
were
tried
at
the
Barr
a
Fortnight
afterwards
by
a
Iury
,
and
acquitted
AN
Action
of
Debt
was
brought
upon
a
Bond
against
the
Defendant
in
which
Bond
the
said
the
elder
,
and
the
younger
,
were
joyntly
and
severally
bound
in
the
penal
Sum
of
conditioned
that
if
the
above
bounden
(
omitting
the
word
do
and
shall
forbear
knowingly
and
wittingly
to
come
to
or
write
Letters
unto
the
Wife
of
that
then
the
Obligation
to
be
void
.
The
Defendant
pleaded
that
he
did
not
come
to
or
write
Letters
to
the
said
The
Plaintiff
replied
,
that
he
exhibited
an
Information
against
the
younger
(
shewing
in
what
Term
)
and
that
it
was
agreed
between
them
,
that
in
consideration
that
he
would
forbear
to
prosecute
the
same
,
the
said
the
elder
together
with
the
younger
,
should
become
bound
to
the
Plaintiff
in
that
the
said
the
younger
should
not
knowingly
or
wittingly
come
into
the
Company
,
then
sets
forth
the
Bond
and
the
Condition
thereof
at
large
,
and
avers
that
in
the
Condition
mentioned
is
the
younger
;
and
farther
that
the
said
the
younger
did
afterwards
knowingly
come
into
the
Company
,
The
Defendant
re-joyned
and
said
,
that
the
Plaintiff
ought
not
to
averr
that
the
aforesaid
the
younger
is
the
person
in
the
Condition
of
the
said
Bond
,
And
upon
a
Demurrer
the
Question
was
whether
the
Plaintiff
was
estopped
by
the
words
in
the
Condition
to
make
such
an
Averment
.
It
was
argued
for
the
Plaintiff
,
that
he
might
make
such
an
Averment
which
is
to
reduce
a
thing
to
a
certainty
which
was
very
incertain
before
if
it
be
not
repugnant
in
it self
;
nay
sometimes
an
Averment
doth
reduce
contradictory
things
to
a
certainty
.
'T
is
plain
that
the
younger
is
bound
in
this
Bond
;
the
Objection
is
that
the
elder
being
of
the
Name
and
being
likewise
bound
,
that
the
Condition
might
referr
to
either
.
'T
is
agreed
there
are
many
Cases
where
a
Man
shall
be
estopped
to
averr
against
a
Record
;
but
this
Averment
is
not
contradictory
to
any
thing
in
the
Record
;
for
it
appears
by
the
Pleadings
that
the
Information
was
prosecuted
against
the
younger
,
and
therefore
he
must
be
intended
to
be
bound
not
to
come
to
the
said
If
an
Estate
should
be
devised
to
and
the
Name
of
the
Testator
omitted
in
the
Will
,
yet
the
Devise
is
good
by
of
the
Name
,
and
by
proof
that
it
was
his
intention
to
give
it
him
by
his
Will
.
So
if
the
Plaintiff
should
claim
a
Title
under
the
Grant
of
such
a
person
and
the
Iury
find
he
was
an
but
that
the
and
the
are
both
the
same
person
,
this
is
a
good
Declaration
.
'T
is
usual
to
make
an
Allegation
even
against
the
express
words
of
a
Condition
to
shew
the
truth
of
an
Agreement
as
if
Debt
be
brought
upon
a
Bond
of
conditioned
to
pay
within
six
Months
;
the
Defendant
pleaded
the
Statute
of
Vsury
;
the
Plaintiff
replied
that
he
lent
the
Mony
for
a
year
,
and
alledged
that
by
the
mistake
of
the
Scrivener
the
Bond
was
made
paiable
in
six
Months
.
The
Defendant
rejoyned
that
it
was
lent
for
six
Months
only
:
And
upon
a
Demurrer
this
was
adjudged
to
be
a
good
Allegation
,
though
it
was
against
the
very
words
of
the
Condition
,
which
is
a
stronger
Case
than
this
at
the
Barr
,
because
the
Averment
consists
with
the
Condition
of
the
Bond.
If
a
Man
should
levy
a
Fine
and
declare
the
Vses
thereof
to
his
Son
and
he
hath
two
Sons
of
that
Name
,
then
an
Averment
is
made
that
he
intended
to
declare
the
Vses
to
his
youngest
Son
of
that
Name
;
this
Averment
out
of
the
Fine
hath
been
adjudged
good
for
the
same
reason
given
already
,
which
is
,
because
it
standeth
with
the
words
thereof
,
and
't
is
a
good
Issue
to
be
tried
.
It
cannot
be
objected
that
the
Bond
is
illegal
being
entred
into
for
the
not
prosecuting
of
an
Information
,
because
a
was
entred
as
to
that
Matter
,
so
't
is
the
Act
of
the
Court.
Lastly
,
It
was
said
that
every
Estoppel
must
be
certain
to
every
intent
which
cannot
be
in
this
Case
,
for
by
the
words
of
this
Condition
't
is
incertain
which
of
the
Obligors
shall
be
intended
.
It
was
argued
,
that
an
Estoppel
is
as
well
intended
by
Law
,
as
expressed
by
Words
,
that
if
an
Averment
can
be
taken
,
yet
this
is
not
well
,
because
the
Plaintiff
hath
absolutely
averred
that
in
the
Condition
is
the
younger
;
he
should
have
said
,
that
in
the
Condition
is
the
younger
,
which
might
have
been
traversed
,
and
Issue
taken
thereon
.
No
Iudgment
was
given
,
for
this
Case
was
ended
by
Compromise
.
THIS
was
a
special
Verdict
in
Ejectment
for
Lands
in
in
the
County
of
upon
the
demise
of
The
Iury
find
that
one
was
seised
in
Fee
of
the
Lands
in
question
,
who
by
his
last
Will
in
writing
,
bearing
date
the
day
of
in
the
year
devised
the
same
to
for
Life
,
so
to
his
first
and
second
Sons
,
in
Tayl
Male
,
and
for
default
of
such
Issue
,
then
to
his
two
Sisters
for
Life
,
Remainder
over
,
This
Will
was
attested
by
one
Witness
only
.
They
find
that
the
said
made
another
,
dated
the
sixth
day
of
which
was
years
after
the
making
of
his
first
Will
,
and
that
by
this
last
Will
he
revoked
all
former
Wills
and
Testaments
by
him
made
.
They
find
an
Endorsement
on
this
Will
,
written
by
the
Testator
himself
in
these
words
,
They
find
that
this
last
Will
was
and
attested
by
three
Witnesses
in
his
presence
,
but
that
They
find
that
entred
,
and
devised
the
Lands
to
who
made
a
Lease
thereof
to
the
Plaintiff
for
three
years
,
upon
whom
the
Defendant
entred
.
This
Case
was
argued
at
the
Bar
,
and
in
this
Term
at
the
Bench
The
single
Question
was
whether
this
last
Will
,
not
being
duly
executed
according
to
the
Statute
,
is
a
of
the
first
Will
,
or
not
?
It
was
admitted
by
all
,
that
it
was
a
good
Will
to
pass
the
personal
Estate
,
but
as
to
the
point
of
the
Court
was
divided
argued
that
it
was
not
a
Revocation
:
He
agreed
that
if
the
last
Will
hath
any
respect
to
the
first
,
it
must
be
as
a
Revocation
,
or
not
at
all
,
which
revocation
must
depend
upon
the
construction
and
exposition
of
the
sixth
Paragraph
in
the
Statute
of
&c.
the
words
whereof
are
by
some
Codicil
in
Writing
,
or
other
Writing
declaring
the
same
,
or
other
Writing
of
the
Devisor
So
that
the
Question
will
be
,
whether
a
Will
which
revokes
a
former
Will
,
ought
to
be
signed
by
the
Testator
in
the
presence
of
three
Witnesses
?
'T
is
clear
that
a
Will
by
which
Lands
are
devised
ought
to
be
so
signed
,
and
why
should
not
a
Will
which
revokes
another
Will
have
the
same
formality
?
The
Statute
seems
to
be
plain
that
it
should
,
for
it
saies
that
a
Will
shall
not
be
revoked
,
but
by
some
Will
or
Codicil
in
writing
,
which
last
Clause
is
an
entire
sentence
in
the
disjunctive
,
and
appoints
that
the
Writing
which
revokes
a
Will
,
must
be
signed
in
the
presence
of
three
Witnesses
,
Before
the
making
of
this
Act
it
was
sufficient
that
the
Testator
gave
directions
to
make
his
Will
,
tho'
he
did
never
see
it
when
made
,
which
mischief
is
now
remedied
,
not
in
writing
the
Will
,
but
that
the
Party
himself
should
sign
it
in
the
presence
of
three
Witnesses
;
and
this
not
being
so
signed
,
but
only
published
by
the
Testator
,
in
their
presence
;
't
is
therefore
no
good
Revocation
.
was
of
a
contrary
Opinion
,
that
this
was
a
good
Revocation
:
That
the
words
in
the
fifth
Paragraph
of
this
Statute
which
altered
the
Law
were
,
In
which
Paragraph
there
are
two
parts
,
The
act
of
the
Devisor
,
which
is
to
sign
the
Will
,
but
not
a
word
that
he
shall
subscribe
his
Name
in
the
presence
of
three
Witnesses
.
The
act
of
the
Witnesses
that
they
shall
attest
and
subscribe
the
Will
in
the
presence
of
the
Devisor
,
or
else
the
Will
to
be
void
.
But
the
sixth
Paragraph
is
penn'd
after
another
manner
,
as
to
the
of
a
Will
,
which
must
be
by
some
Codicil
in
writing
,
or
other
Writing
signed
in
the
presence
of
three
Witnesses
.
Now
here
is
a
Writing
declaring
that
it
shall
be
revoked
,
not
expresly
,
but
by
implication
,
and
though
that
Clause
in
the
disjunctive
which
says
,
that
the
revocation
must
be
by
some
Writing
of
the
Devisor
,
signed
in
the
presence
of
three
Witnesses
,
yet
in
the
same
Paragraph
't
is
said
that
it
may
be
revoked
by
a
Codicil
or
Will
in
Writing
,
and
therefore
an
exposition
ought
to
be
made
upon
the
whole
Paragraph
,
that
the
intention
of
the
Law
may
more
fully
appear
.
Such
a
construction
hath
been
made
upon
a
whole
Sentence
,
where
part
thereof
was
in
the
disjunctive
;
as
for
instance
,
A
Man
was
possessed
of
a
Lease
by
disseisin
,
who
assigned
it
to
another
,
and
covenanted
that
at
the
time
of
the
assignment
it
was
a
good
,
true
,
and
indefeasable
Lease
,
and
that
the
Plaintiff
should
enjoy
it
without
interruption
of
the
Disseisor
,
any
claiming
under
him
;
in
this
Case
the
Diffeisee
re-entred
;
and
though
the
Covenant
was
in
the
disjunctive
to
defend
the
Assignee
from
the
Disseisor
,
or
any
claiming
under
him
;
yet
he
having
undertaken
for
quiet
enjoyment
,
and
that
it
was
an
indefeasable
Lease
,
it
was
adjudged
that
an
exposition
ought
to
be
made
upon
the
whole
Sentence
.
and
so
the
Plaintiff
had
Iudgment
.
The
Chief
Iustice
was
of
the
same
Opinion
with
Iustice
THE
Defendants
were
indicted
for
being
and
that
had
unlawfully
obtained
Goods
of
the
Countess
of
,
and
that
he
together
with
one
did
detain
the
said
Goods
,
until
the
Countess
had
paid
him
was
acquitted
,
and
was
found
Guilty
,
which
must
be
of
the
first
part
of
the
Indictment
only
;
for
it
could
not
be
and
therefore
it
was
moved
in
arrest
of
Iudgment
,
that
to
obtain
Goods
unlawfully
,
was
only
a
private
injury
for
which
the
party
ought
not
to
be
indicted
.
To
which
it
was
answered
,
that
a
plain
Fraud
was
laid
in
this
Indictment
,
which
was
sufficient
to
maintain
it
;
and
that
tho
one
was
acquitted
,
yet
the
Iury
had
found
the
other
guilty
of
the
whole
.
But
the
Court
were
of
Opinion
,
that
the
acquittal
of
one
,
is
the
acquittal
of
both
upon
this
Indictment
,
and
therefore
it
was
quash'd
.
Writ
of
Error
was
brought
to
reverse
a
Iudgment
in
Ejectment
,
given
in
the
for
one
Messuage
and
twenty
Acres
of
Land
held
of
the
Manor
of
There
was
a
special
Verdict
found
,
the
substance
of
which
was
,
That
the
Land
in
question
was
Copy-hold
,
held
of
the
said
Manor
of
in
the
County
of
and
that
his
Wife
,
in
right
of
the
said
were
seized
thereof
for
Life
,
Remainder
to
in
Fee
.
That
the
Custom
of
the
said
Manor
was
that
if
any
Customary
Tenant
doth
surrender
his
Estate
out
of
Court
,
that
such
Surrender
shall
be
presented
at
the
next
Court
of
the
said
Manor
,
and
publick
Proclamation
shall
be
made
three
Court
days
afterwards
for
the
Party
to
whose
use
the
Surrender
was
made
,
to
come
and
be
admitted
Tenant
,
and
if
he
refuseth
,
then
after
three
Proclamations
made
in
each
of
the
said
Courts
,
the
Steward
of
the
said
Manor
issueth
forth
a
Precept
to
the
Bailiff
thereof
to
seise
the
Copyhold
as
forfeited
.
They
find
that
and
his
Wife
and
made
this
Surrender
out
of
Court
to
the
use
of
and
his
Heirs
,
who
died
before
the
next
Court
,
and
that
an
Infant
,
was
his
Son
and
Heir
.
That
after
the
said
Surrender
three
Proclamations
were
made
at
three
several
Courts
held
for
the
said
Manor
,
but
that
the
said
did
not
come
to
be
admitted
Tenant
,
thereupon
the
Steward
of
the
said
Manor
made
a
Precept
to
the
Bayliff
,
who
seized
the
Lands
in
question
as
forfeited
to
the
Lady
,
who
entred
and
made
a
Lease
to
the
Plaintiff
,
upon
whom
the
Defendant
re-entred
.
The
single
Question
upon
this
special
Verdict
was
,
whether
this
was
a
Forfeiture
,
and
so
a
good
seisure
to
bind
the
right
of
an
Infant
.
It
was
argued
for
the
Plaintiff
in
the
Action
that
it
was
a
good
Seisure
and
a
Forfeiture
till
the
Infant
should
come
of
Age
;
for
as
a
Copyhold
is
established
by
Custom
,
so
likewise
't
is
Custom
which
obligeth
the
Infant
to
the
Conditions
thereof
;
and
therefore
where
one
under
Age
hath
an
Estate
upon
a
Condition
to
be
performed
by
him
,
's
Case
and
that
Condition
is
broken
during
his
Minority
,
the
Estate
is
lost
for
ever
.
In
this
Case
the
Custom
obligeth
the
Heir
to
be
admitted
,
that
the
Lord
may
be
entituled
to
a
Fine
,
which
if
he
should
lose
,
because
his
Tenant
is
an
Infant
,
then
that
priviledge
of
Infancy
works
a
wrong
,
which
the
Law
will
not
permit
.
'T
is
true
,
an
Infant
shall
not
be
prejudiced
by
the
Laches
of
another
,
but
shall
be
answerable
for
himself
;
and
therefore
if
he
is
Tenant
of
Lands
and
the
Rent
should
be
unpaid
for
two
years
,
and
no
Distress
can
be
found
,
a
lies
against
him
,
and
the
Lord
shall
recover
the
Land
,
because
of
the
Non-performance
which
arises
by
his
own
default
.
So
if
one
under
Age
be
a
Keeper
of
a
Gaol
and
suffer
a
Prisoner
to
escape
out
of
Execution
,
an
Action
of
Debt
will
lie
against
him
upon
the
Statute
of
It
was
agreed
that
such
a
Custom
and
Non-claim
will
not
foreclose
an
Heir
,
's
Case
who
is
an
Infant
and
beyond
Sea
at
the
time
of
his
Ancestors
Death
,
though
he
is
bound
by
the
Custom
to
claim
it
at
the
next
Court
;
but
that
if
he
will
come
over
and
tender
himself
,
though
after
a
Seisure
,
he
shall
be
admitted
,
and
so
shall
the
person
in
this
Case
if
after
his
Minority
he
offer
himself
to
be
admitted
.
But
it
cannot
be
denied
but
that
the
Lord
may
seize
when
the
Heir
is
beyond
Sea
till
he
return
and
tender
himself
to
be
admitted
,
and
by
the
same
reason
he
may
also
seize
in
this
case
during
the
Minority
.
A
Temporary
Forfeiture
is
no
new
thing
in
the
Law
for
if
a
Feme
Covert
be
a
Copyholder
and
marrieth
,
and
her
Husband
makes
a
Lease
for
years
without
License
of
the
Lord
,
't
is
a
Forfeiture
and
shall
bind
her
during
the
Coverture
.
So
the
Law
is
that
the
Lord
may
seize
the
Land
till
a
Fine
is
paid
,
for
't
is
a
reasonable
Custom
so
to
do
.
It
hath
been
a
good
Custom
for
the
Lord
to
assign
a
person
to
take
the
Profits
of
a
Copyhold
Estate
descended
to
the
Infant
during
his
Minority
without
rendring
an
Accompt
when
he
came
of
Age.
So
that
all
that
is
to
be
done
in
this
Case
is
to
enforce
the
Infant
to
be
admitted
,
that
the
Lord
may
be
entituled
to
a
Fine
:
The
Inheritance
is
not
bound
,
but
the
Land
is
only
seized
It
was
argued
that
here
is
a
general
Seizure
,
which
cannot
extend
to
an
Infant
,
for
he
is
not
bound
in
a
Writ
of
Right
,
much
less
in
an
inferior
Court
after
three
Proclamations
;
but
if
this
had
been
a
Temporary
Seisure
the
Iury
ought
to
have
found
it
so
,
which
is
not
done
.
There
are
many
Authorities
in
the
Books
which
affirm
that
an
Infant
is
not
obliged
to
be
admitted
during
his
Non-age
,
or
to
tender
the
Fine
in
order
to
an
Admittance
;
that
the
Law
was
settled
in
this
Point
,
and
therefore
without
any
further
Argument
he
prayed
Iudgment
for
the
Defendant
.
Afterwards
in
this
Case
was
argued
at
the
Bench
,
three
Iudges
being
of
a
contrary
Opinion
to
the
Chief
Iustice
for
the
affirming
of
the
Iudgment
.
premised
two
things
That
he
could
not
intend
but
that
this
Verdict
had
found
an
absolute
Forfeiture
,
the
Iury
having
no
way
qualified
it
as
to
a
certain
time
,
and
therefore
he
would
give
a
Iudgment
upon
the
whole
Record
.
He
agreed
that
a
Feoffment
of
an
Infant
was
no
Forfeiture
at
the
Common
Law
,
and
that
as
a
particular
Custom
may
bind
an
Infant
for
a
time
,
so
it
may
barr
him
for
ever
;
but
whether
this
Custom
,
as
't
is
found
in
general
words
,
shall
bind
an
Infant
after
three
Proclamations
is
now
the
Question
,
he
not
coming
then
to
be
admitted
.
And
he
held
that
it
shall
not
,
and
that
for
these
reasons
.
The
Right
of
Infants
is
much
favoured
in
the
Law
,
and
their
Laches
shall
not
be
prejudicial
to
them
as
to
Entry
or
Claim
,
upon
a
Presumption
that
they
understand
not
their
Right
,
and
therefore
in
a
which
is
a
remedy
given
by
the
Statute
of
and
which
extends
to
Infants
who
have
not
the
Land
by
descent
;
for
if
a
Cesser
be
in
that
Case
the
Infant
shall
have
his
Age
,
because
the
Law
intends
that
he
doth
not
know
what
Arrerages
to
tender
.
'T
is
admitted
that
if
an
Infant
doth
not
present
to
a
Church
within
six
Months
,
or
doth
not
appear
within
a
year
that
his
Right
is
bound
,
but
this
is
because
the
Law
is
more
tender
of
the
Church
,
and
the
life
of
a
Man
than
of
the
Priviledges
of
Infancy
.
So
if
an
Office
of
Parkship
be
given
or
descends
to
an
Infant
,
if
the
Condition
in
Law
annexed
to
such
an
Office
(
which
is
skill
)
be
not
observed
,
the
Office
is
forfeited
.
But
that
a
Proclamation
in
a
base
Court
should
bind
an
Infant
,
when
he
is
not
within
the
reason
of
the
Custom
,
is
not
agreeable
either
to
Law
or
Reason
.
All
Customs
are
to
be
taken
strictly
when
they
go
to
the
destruction
of
an
Estate
;
and
therefore
a
Custom
was
,
that
if
a
Copyholder
in
Fee
surrender
out
of
Court
,
and
the
Surrendree
doth
not
come
in
after
three
Proclamations
,
the
Lord
shall
seize
it
.
A
Copyholder
in
Fee
surrendred
to
another
for
Life
,
the
Remainder
over
in
Fee
,
if
the
Tenant
for
Life
will
not
come
in
,
he
in
the
Remainder
shall
not
be
barred
,
for
the
Custom
shall
be
intended
to
extend
only
to
those
in
possession
.
But
the
Infant
in
this
Case
is
not
within
the
Letter
of
the
Custom
,
for
't
is
found
that
the
Surrender
was
made
to
one
who
died
before
the
next
Court-day
;
and
that
the
Infant
was
his
Son
and
Heir
,
so
they
have
found
a
Title
in
him
;
for
the
word
is
not
here
a
word
of
Purchase
,
but
of
Limitation
.
Infants
are
not
bound
by
other
Customs
like
this
,
as
a
Custom
that
every
Copyholder
who
makes
a
Lease
of
his
Land
shall
forfeit
it
;
but
this
doth
not
conclude
an
Infant
.
There
is
not
any
necessity
to
construe
an
Infant
to
be
within
this
Custom
;
for
't
is
not
found
that
the
Lord
was
to
have
a
Fine
upon
admittance
;
and
't
is
no
consequence
to
say
that
the
Lord
shall
have
a
Fine
,
because
usually
Fines
are
taken
upon
admittances
for
an
Infant
may
be
admitted
to
a
Copyhold
,
but
not
be
bound
to
tender
his
Fine
at
any
time
during
his
Non-age
.
was
of
the
same
Opinion
,
which
he
chiefly
grounded
upon
Sir
between
which
and
the
Case
at
the
Barr
he
said
there
was
no
material
difference
,
only
in
that
Case
the
Heir
was
beyond
Sea
,
and
in
this
at
the
Barr
,
he
was
an
Infant
'T
is
very
true
,
that
the
Books
mention
a
't
is
so
said
by
Iustice
but
he
gives
no
reason
for
it
,
't
is
only
an
Opinion
but
it
is
clear
by
many
Authorities
that
Infants
may
be
bound
by
Acts
of
necessity
,
and
so
they
may
by
a
Custom
.
of
the
same
Opinion
,
which
he
said
was
agreeable
to
the
reason
of
the
Law
in
parallel
Cases
:
An
Infant
is
priviledged
in
a
Fine
,
for
he
is
excepted
by
the
Statute
,
because
he
knows
not
how
to
make
his
Claim
.
He
said
this
was
likewise
agreeable
to
the
Custom
of
Mannors
of
which
he
was
formerly
Steward
;
for
in
such
Cases
he
always
marked
the
Court
Roll
,
It
cannot
be
a
Forfeiture
because
an
Infant
is
wholly
exempted
by
the
Custom
,
and
therefore
't
is
no
Forfeiture
at
all
.
'T
is
an
Objection
of
no
moment
,
to
say
that
the
Lord
by
this
means
will
lose
his
Fine
,
and
that
he
hath
no
remedy
to
make
the
Infant
when
of
Age
to
be
admitted
,
for
no
Fine
is
due
to
him
before
admittance
.
But
this
Objection
will
be
of
less
weight
,
if
the
loss
of
the
Infant
be
compared
to
that
of
the
Lord
,
who
looseth
only
the
Interest
of
a
Fine
before
Admittance
;
and
shall
this
Infant
who
is
now
but
three
years
of
Age
loose
the
Profits
of
his
Estate
for
But
there
may
be
a
way
found
out
that
neither
may
loose
;
for
if
it
should
be
that
when
the
Infant
comes
of
Age
his
Estate
should
be
then
forfeited
,
if
he
doth
not
tender
himself
to
be
admitted
after
three
Proclamations
;
Now
upon
his
admittance
the
Lord
may
set
a
reasonable
Fine
,
having
respect
to
the
length
of
time
in
which
it
was
deteined
from
him
.
was
no
more
but
this
A
Disseisor
levied
a
Fine
with
Proclamations
,
and
lived
three
years
,
his
Heir
being
under
Age
,
and
the
five
years
incurred
after
the
said
Heir
came
of
Age
,
and
then
he
entred
within
a
year
,
and
his
Entry
was
adjudged
unlawful
.
But
that
will
not
concern
this
Case
,
because
it
was
a
Iudgment
upon
the
Statute
of
for
the
five
years
being
once
attached
and
begun
in
the
life
of
his
Ancestor
shall
incurr
and
go
on
,
and
bind
the
Infant
,
if
he
do
not
pursue
his
Claim
within
that
time
after
he
comes
of
Age
;
but
't
is
to
be
observed
that
my
Lord
in
the
Argument
of
that
Case
said
nothing
of
a
The
Chief
Iustice
was
of
a
contrary
Opinion
from
the
other
three
Iustices
,
and
that
the
Iudgment
ought
to
be
reversed
.
Because
until
the
Infant
is
admitted
the
Estate
remains
in
the
Surrenderor
,
and
without
an
Admittance
he
cannot
enter
but
by
a
special
Custom
to
warrant
it
;
and
for
this
reason
't
is
that
the
Surrenderor
shall
have
an
Action
of
Trespass
against
any
person
who
enters
,
because
he
shall
be
intended
still
in
possession
,
till
the
Admittance
of
another
.
If
so
then
Infancy
cannot
protect
an
Estate
to
which
the
Infant
hath
no
Title
till
Admittance
;
for
till
then
he
hath
neither
This
is
a
Condition
annexed
to
the
Estate
to
be
performed
by
the
Infant
,
by
which
he
is
bound
notwithstanding
his
Non-age
,
otherwise
his
Estate
is
forfeited
.
The
Custom
which
obligeth
him
to
be
admitted
is
to
entitle
the
Lord
of
the
Mannor
to
a
Fine
to
which
he
hath
a
right
.
Now
Infancy
was
never
yet
extended
to
endanger
that
remedy
,
which
Men
have
to
recover
their
Rights
;
it
has
been
often
so
far
extended
as
to
delay
such
a
remedy
,
but
never
to
destroy
it
;
for
if
the
Infant
should
die
the
Lord
looseth
the
Fine
and
then
another
person
is
to
be
admitted
;
but
he
cannot
encrease
the
Fine
upon
him
who
is
a
Stranger
for
the
neglect
of
the
Infant
.
'T
is
true
where
an
Infant
hath
a
Right
it
shall
be
preserved
though
a
Fine
be
levied
and
the
five
years
pass
,
but
in
this
Case
he
hath
no
Right
before
Admittance
.
If
a
Feme
Covert
be
an
Heir
to
a
Copyhold
Estate
,
where
the
like
Custom
is
,
and
she
marrieth
,
and
the
Husband
after
three
Proclamations
will
not
come
and
be
admitted
,
't
is
a
Forfeiture
during
the
Coverture
.
Now
the
reason
in
the
Cases
of
Coverture
and
Infancy
is
the
same
;
for
if
there
shall
be
a
Seisure
during
the
time
the
woman
is
Covert
,
why
not
during
the
Infancy
?
As
to
Sir
the
Heir
was
beyond
Sea
,
but
when
he
came
into
he
desired
to
be
admitted
;
but
this
Infant
never
yet
desired
to
be
admitted
;
he
stands
upon
his
Priviledge
of
Infancy
.
But
upon
the
Opinion
of
the
other
three
Iustices
the
Iudgment
was
affirmed
that
the
Custom
doth
not
bind
the
Infant
.
Covenant
to
pay
so
much
Mony
to
the
Plaintiff
or
his
Assigns
as
should
be
drawn
upon
the
now
Defendant
by
a
Bill
of
Exchange
,
The
Breach
was
assigned
in
Non-payment
.
The
Defendant
pleaded
that
the
Plaintiff
did
assign
the
Mony
to
be
paid
to
who
assigned
it
to
to
whom
he
paid
and
tendred
the
rest
drawn
upon
by
Bill
of
Exchange
,
And
upon
a
Demurrer
Mr.
insisted
,
that
this
was
not
a
good
Plea
,
because
the
Defendant
had
not
set
forth
the
Custom
of
Merchants
,
without
which
all
these
Assignments
are
void
,
of
which
Custom
the
Court
cannot
take
any
judicial
notice
,
but
it
must
be
pleaded
;
and
't
is
not
sufficient
to
say
,
that
the
Assignment
was
made
but
it
must
be
otherwise
't
is
not
good
It
was
argued
that
the
Custom
of
Merchants
is
not
a
particular
Custom
and
local
;
but
't
is
of
an
universal
extent
and
is
a
general
Law
of
the
Land
.
The
pleading
it
as
't
is
here
,
is
good
;
for
if
an
Action
is
brought
against
an
Inn-keeper
or
common
Carrier
't
is
usual
to
declare
for
't
is
not
a
Custom
confined
to
a
particular
place
,
but
't
is
such
which
is
extensive
to
all
the
King's
People
.
The
word
might
have
been
added
but
it
imports
no
more
than
for
Custom
it self
is
Law
.
If
the
Custom
of
Merchants
had
been
left
out
the
Defendant
had
then
pursued
his
Covenant
;
for
if
a
Man
agrees
to
pay
Mony
to
such
a
person
or
his
Assigns
,
and
he
appoints
the
payment
to
another
,
a
tender
to
that
person
is
a
good
performance
of
the
Covenant
.
But
the
Court
were
of
Opinion
that
this
was
not
a
good
Plea
.
to
have
Execution
of
a
Iudgment
obtained
in
the
Court
of
late
Protector
of
and
the
Dominions
and
thereunto
belonging
and
in
reciting
the
Iudgment
't
is
said
that
it
was
obtained
before
Protector
of
and
the
Dominions
thereunto
belonging
leaving
out
the
word
And
upon
a
Demurrer
Mr.
held
this
to
be
a
and
like
the
Case
where
a
Writ
of
Error
was
brought
to
remove
a
Record
in
directed
to
the
Bishop
of
setting
forth
that
the
Action
was
between
such
Parties
,
and
brought
before
the
said
Bishop
and
seven
other
persons
(
naming
them
;
)
and
the
Record
removed
was
an
before
the
Bishop
and
eight
others
,
so
that
it
could
not
be
the
same
Record
which
was
intended
to
be
removed
by
the
Writ
.
It
was
said
,
suppose
the
word
should
be
left
out
of
the
King's
Title
,
would
that
be
a
variance
?
The
Iudicature
in
this
Case
is
still
the
same
,
and
the
Pleading
is
good
in
Substance
;
and
of
that
Opinion
was
the
whole
Court
.
had
Issue
his
eldest
Son
,
who
had
Issue
He
by
Will
devised
to
his
eldest
Son
,
and
several
parcels
of
Land
to
other
Legatees
.
Then
he
gave
to
Lands
in
Tail
Male
.
a
Mansion
House
(
now
in
question
)
in
Tail
Male
.
He
devised
another
House
to
his
Grandson
in
like
manner
And
all
the
rest
and
part
of
his
Estate
he
devised
to
his
three
Grandsons
equally
to
be
divided
amongst
them
,
Peter
,
Charles
whom
he
made
Executors
Then
by
another
Clause
he
devised
,
That
if
either
of
his
Executors
die
without
Issue
then
the
part
or
parts
of
him
so
dying
shall
go
to
the
Survivor
or
Survivors
equally
to
be
divided
.
the
youngest
Grandson
,
dyed
without
Issue
,
and
the
question
was
,
whether
the
Reversion
of
his
House
shall
be
divided
between
his
surviving
Brothers
or
descend
to
his
Heir
.
And
it
was
adjudged
that
the
Exception
in
the
Will
did
comprehend
the
Reversion
in
Fee
,
and
that
it
did
not
pass
but
without
such
an
Exception
it
had
passed
as
where
a
Man
devised
his
Mannor
to
another
for
years
,
and
part
of
other
Lands
to
and
his
Heirs
,
and
to
his
Brother
in
Tail
,
it
was
held
that
by
these
words
the
Reversion
of
the
Mannor
did
pass
.
An
Infant
having
entred
into
a
Statute
brought
an
to
avoid
it
;
he
was
brought
into
the
Court
,
and
two
Witnesses
were
sworn
to
prove
his
Age
,
and
then
his
Appearance
and
Inspection
were
recorded
;
he
was
bound
in
this
Case
with
two
other
persons
for
and
had
no
more
than
for
his
share
A
special
Verdict
was
found
that
the
Testator
being
seized
in
Fee
of
certain
Houses
in
and
in
did
by
Will
devise
his
Houses
in
to
charitable
Vses
;
then
he
gave
several
specifick
Legacies
to
several
persons
named
in
the
said
Will
;
and
then
he
devised
his
Houses
in
his
Wife
for
their
Lives
;
then
follow
these
words
,
my
Wife
to
her
and
her
Heirs
The
Question
was
whether
this
Devise
would
carry
the
Reversion
of
the
Houses
in
to
his
Wife
Adjudged
that
it
did
not
,
but
that
it
ought
to
go
to
the
Heir
of
the
Testator
,
who
was
Plaintiff
in
this
Case
:
It
being
found
that
and
his
Wife
were
dead
,
and
that
the
Wife
who
was
Executrix
had
sufficient
Assets
to
pay
the
Legacies
without
the
Reversion
.
But
Iustice
was
of
another
Opinion
;
for
that
the
word
imports
an
Inheritance
,
and
if
it
had
devised
thus
,
the
Inheritance
not
before
disposed
of
the
Reversion
had
passed
.
Afterwards
a
Writ
of
Error
was
brought
in
the
upon
this
Iudgment
and
according
to
the
Opinion
of
Iustice
the
Iudgment
was
reversed
A
Rule
of
Court
was
made
,
that
no
should
go
to
the
Sessions
of
without
Motion
in
Court
,
or
signing
of
it
by
a
Iudge
in
his
Chamber
.
But
Mr.
insisted
that
the
Sessions
there
did
not
differ
from
other
Courts
and
Franchises
;
for
the
inferior
Courts
in
are
of
as
large
a
Iurisdiction
as
any
,
and
yet
a
goes
to
them
,
and
so
it
ought
to
go
to
for
't
is
the
Right
of
the
Subject
to
remove
his
Cause
hither
.
Their
course
in
the
Royal
Franchise
of
is
to
hold
the
Sessions
there
twice
a
year
,
in
which
two
Months
the
Iudges
are
seldom
in
Town
;
and
if
this
Court
should
deny
a
the
Court
of
would
grant
it
Attorney
General
This
Franchise
of
is
of
greater
Priviledge
and
Authority
than
any
inferior
Court
,
for
it
hath
many
though
't
is
not
a
County
Palatine
.
will
not
lie
to
the
Grand
Sessions
,
nor
to
a
County
Palatine
,
to
remove
Civil
Causes
;
't
is
true
,
it
lyeth
to
remove
Indictments
for
Riots
;
and
this
Franchise
being
truly
called
Royal
hath
equal
priviledge
with
a
County
Palatine
,
and
therefore
a
will
not
lie
But
no
Rule
was
made
The
Case
upon
the
Pleadings
was
this
,
A
Lease
was
made
of
Land
for
years
if
should
so
long
live
,
reserving
a
yearly
Rent
and
an
Heriot
or
in
lieu
thereof
after
the
death
of
either
of
them
,
survived
,
and
is
since
dead
.
The
Question
was
whether
upon
this
Reservation
the
Beast
of
any
person
being
upon
the
Land
may
be
for
an
Heriot
argued
that
it
could
not
,
because
the
words
in
the
Reservation
ought
to
be
taken
very
strictly
,
and
not
to
be
carryed
farther
than
the
plain
expression
.
Where
words
are
doubtful
they
have
been
always
expounded
against
the
Lessor
as
if
a
Lease
be
made
for
years
reserving
a
Rent
to
the
Lessor
,
his
Executors
or
Assigns
;
the
Lessor
dies
,
his
Heir
shall
not
have
the
Rent
,
because
't
is
reserved
to
the
Executors
.
But
here
is
no
room
for
any
doubt
upon
these
words
,
for
if
a
Lease
for
years
be
made
,
in
which
there
is
a
Covenant
,
that
the
Lessee
shall
pay
the
Rent
without
any
other
words
,
this
determines
upon
the
death
of
the
Lessee
.
So
where
a
Lease
was
made
for
years
if
or
any
of
them
should
so
long
live
,
reserving
Rent
to
him
and
his
Executors
,
and
also
at
or
upon
the
death
of
either
best
Beast
,
in
the
name
of
an
provided
that
if
die
,
living
no
Heriot
shall
be
paid
after
their
deaths
.
assigns
his
Term
,
and
the
Beast
of
the
Assignee
was
taken
for
an
Heriot
,
but
adjudged
that
it
could
not
,
for
the
words
shall
not
be
carried
farther
than
to
the
persons
named
in
the
Limitation
.
The
Books
that
affirm
that
a
Man
may
for
an
cannot
be
brought
as
Authorities
in
this
Case
,
because
they
are
all
upon
Tenures
between
Lord
and
Tenant
,
and
not
upon
particular
Reservations
as
this
is
.
The
old
Books
say
,
that
if
a
Tenant
by
Fealty
and
Heriot-Service
,
made
his
Executor
and
died
,
that
the
Lord
might
the
best
Beast
of
his
Tenant
in
the
Hands
of
the
Executor
,
and
if
he
could
not
find
any
Beast
,
then
he
might
distrain
the
Executor
,
and
the
reason
of
this
seizure
was
because
immediately
upon
the
death
of
the
Tenant
,
a
Property
was
vested
in
the
Lord
;
but
it
was
held
always
unreasonable
to
put
him
to
distrain
when
he
might
seise
.
And
it
is
now
held
that
for
Heriot-Service
the
Lord
may
either
distrain
or
seise
,
but
then
if
he
makes
a
seisure
,
it
must
be
the
very
Beast
of
the
Tenant
,
but
if
he
distrain
,
he
may
take
any
persons
Cattle
upon
the
Land
.
So
that
admitting
this
to
be
Law
,
yet
it
proves
nothing
to
this
matter
,
because
such
Services
being
by
Tenure
,
shall
not
be
extended
to
those
which
are
created
within
time
of
memory
,
upon
particular
reservations
;
for
by
those
ancient
Tenures
the
Lords
had
many
Priviledges
which
cannot
be
upon
Reservations
.
Besides
,
the
seisures
in
those
Cases
were
by
the
Lords
,
who
continued
so
to
be
at
the
very
time
of
the
seisure
;
but
in
our
Case
the
Lease
is
determined
by
the
death
of
the
last
Life
,
so
the
Priviledge
is
lost
,
and
then
it
must
stand
upon
the
particular
words
in
the
Deed.
into
the
Exchequer
Chamber
,
the
Iudges
being
divided
in
Opinion
.
THE
Plaintiff
as
Administrator
of
his
Wife
brought
an
Action
of
Debt
upon
a
Bond
,
against
an
Attorny
,
for
The
Defendant
craved
Dyer
of
the
Condition
,
which
was
(
who
was
Wife
to
the
Plaintiff
)
and
in
the
County
of
are
Coparceners
(
according
to
the
Common-Law
)
of
one
House
,
with
the
Appurtenances
in
in
the
possession
of
and
whereas
the
said
hath
paid
unto
the
Father
,
for
the
use
of
his
Son
,
the
Sum
of
in
consideration
that
the
said
the
Son
which
will
be
about
next
)
do
by
good
Conveyance
in
the
Law
,
at
the
costs
and
charges
of
the
said
convey
his
said
moiety
of
the
said
House
with
the
Appurtenances
,
unto
Now
the
Condition
of
this
Obligation
is
such
,
That
if
the
said
the
Son
convey
his
said
moiety
of
the
said
House
,
if
the
said
the
Father
,
his
Heirs
,
Executors
or
Administrators
,
shall
pay
or
cause
to
be
paid
the
sum
of
with
lawful
Interest
for
the
same
,
unto
the
said
her
Executors
,
Administrators
or
Assigns
,
that
then
this
Obligation
to
be
void
.
Then
he
pleaded
,
that
his
Son
was
Coparcener
with
as
Co-heires
of
came
of
Age
,
and
that
before
that
time
died
without
Issue
The
Plaintiff
replied
,
that
true
it
is
,
that
before
the
Son
came
of
Age
the
said
died
without
Issue
of
her
Body
,
that
before
the
making
of
the
said
Bond
died
seised
in
Fee
of
the
said
Messuage
,
but
that
she
first
married
with
one
by
whom
she
had
Issue
her
Husband
died
,
and
by
whom
he
had
Issue
their
only
Daughter
and
Heir
;
that
died
,
and
that
married
the
Defendant
by
whom
he
had
Issue
his
Son
;
that
died
in
the
life-time
of
hath
not
paid
the
in
her
life
time
,
or
to
after
her
death
The
Defendant
demurred
,
and
the
Plaintiff
joyned
in
Demurrer
.
The
Question
was
,
since
the
word
in
the
Condition
being
a
word
of
Limitation
,
and
not
of
any
designation
of
the
person
,
whether
the
death
of
the
Son
came
of
Age
,
and
who
was
to
make
the
Conveyance
shall
excuse
the
Defendant
from
the
payment
of
the
Mony
?
Those
who
argued
for
the
Defendant
,
chiefly
relied
upon
Case
,
which
was
were
bound
that
if
after
marriage
with
together
with
the
said
shall
sell
a
Messuage
if
then
do
or
shall
in
his
life-time
purchase
for
the
said
and
her
Heirs
and
Assigns
Lands
of
as
good
value
as
the
Mony
by
him
received
by
the
said
Sale
,
or
leave
her
as
much
Mony
at
his
decease
,
then
,
&c.
did
not
purchase
Lands
of
an
equal
value
with
that
he
sold
;
and
upon
Demurrer
it
was
held
that
where
a
Condition
consisteth
of
two
parts
and
both
possible
at
the
time
of
the
Bond
made
,
and
afterwards
one
is
become
impossible
by
the
act
of
God
,
there
the
Obligor
is
not
bound
to
perform
the
other
part
,
because
the
Condition
is
made
for
the
benefit
of
the
Obligor
,
and
shall
be
taken
most
beneficially
for
him
who
had
election
either
to
perform
the
one
or
the
other
,
to
save
the
penalty
of
the
Bond.
But
the
Council
for
the
Plaintiff
said
that
the
whole
intent
of
the
Condition
in
that
Case
was
to
provide
a
Security
for
who
died
before
her
Husband
;
so
that
no
body
could
be
hurt
for
the
non-performance
of
that
Condition
,
there
being
no
manner
of
necessity
that
any
thing
should
be
done
in
order
to
it
after
her
decease
.
'T
is
quite
otherwise
in
the
Case
at
Bar
,
for
paid
Mony
for
the
House
,
and
certainly
it
was
never
intended
that
the
Father
to
whom
the
Mony
was
paid
,
should
have
both
House
and
Mony
.
If
she
had
lived
the
House
ought
to
have
been
conveyed
to
her
;
now
she
is
dead
the
Mony
ought
to
be
paid
,
for
't
is
not
lost
by
her
death
.
Case
,
the
person
who
was
to
do
the
thing
was
the
Obligor
himself
,
but
here
the
Father
undertakes
for
his
Son
,
that
he
should
convey
when
he
came
of
Age
,
or
to
repay
the
Mony
,
so
that
't
is
not
properly
a
Condition
in
the
disjunctive
,
for
't
is
no
more
than
if
it
had
been
penn'd
after
this
manner
.
The
Father
undertakes
for
his
Son
that
he
shall
convey
at
the
Age
of
years
;
if
he
refuse
,
then
the
Father
is
to
repay
what
mony
he
received
.
Case
is
Reported
by
Iustice
and
therein
he
cites
two
other
Cases
of
That
of
that
if
did
not
appear
at
such
a
day
,
he
would
pay
him
The
Defendant
pleaded
that
died
before
the
day
;
and
ruled
to
be
no
Plea
,
for
he
ought
to
pay
the
Mony
,
which
Case
is
parallel
to
this
,
for
't
is
the
same
in
Reason
and
Sense
.
That
of
A
Man
was
bound
that
should
appear
the
first
day
in
the
next
Term
at
the
or
he
would
pay
died
before
the
day
,
so
as
by
the
act
of
God
he
could
not
appear
,
yet
it
was
adjudged
that
the
Mony
must
be
paid
.
The
like
Case
was
adjudged
between
in
the
in
my
Lord
's
time
;
't
is
entred
The
Rule
in
Case
cannot
be
denied
where
the
Condition
is
in
the
disjunctive
and
one
becomes
impossible
by
the
act
of
God
,
the
Obligor
is
not
bound
to
perform
the
other
,
but
then
it
must
be
governed
by
the
subsequent
matter
.
As
in
Debt
upon
Bond
,
conditioned
that
if
the
Defendant
delivered
three
Bonds
to
the
Plaintiff
,
wherein
he
was
bound
to
the
Defendant
,
or
a
Release
of
them
,
as
should
be
advised
by
the
Plaintiff's
Council
before
such
a
day
,
then
,
The
Defendant
pleaded
,
that
neither
the
Plaintiff
or
his
Council
did
advise
a
Release
before
the
day
,
and
upon
Demurrer
it
was
adjudged
that
the
Plea
was
good
,
for
the
Defendant
had
an
election
to
deliver
or
release
as
the
Plaintiff
should
devise
,
which
if
he
will
not
do
,
the
Defendant
is
discharged
by
the
neglect
of
the
Plaintiff
;
for
the
Defendant
being
at
his
choice
to
perform
the
one
thing
or
the
other
,
't
is
not
reason
that
the
Plaintiff
should
compel
him
to
perform
one
thing
only
.
It
was
argued
on
the
other
side
,
that
this
is
a
disjunctive
condition
,
and
not
only
an
undertaking
of
the
Father
for
the
Son
.
Where
a
Condition
is
to
perform
two
things
,
and
if
either
be
done
,
no
Action
will
lye
,
such
Condition
is
in
the
disjunctive
,
as
in
this
Case
,
if
the
Son
had
conveyed
or
the
Father
repaid
the
Mony
.
By
the
Condition
of
this
Bond
,
the
Father
did
as
much
undertake
for
his
Son
,
as
did
for
to
convey
the
House
,
or
pay
the
Mony
to
now
the
last
part
of
the
Condition
being
discharged
by
the
Act
of
God
,
he
is
acquitted
of
the
other
.
Suppose
the
Condition
had
been
single
to
convey
to
if
she
die
,
the
Bond
is
void
.
There
is
an
Authority
to
this
purpose
,
Reported
by
Iustice
which
was
,
an
Action
of
Debt
was
brought
by
the
Plaintiff
,
as
Executor
,
The
Condition
of
the
Bond
was
for
the
yearly
payment
of
a
Sum
of
Mony
twice
in
a
year
,
day
,
during
the
Life
of
a
Lady
,
or
within
days
after
either
of
the
said
Feasts
:
the
Lady
died
after
one
of
the
Feasts
,
but
within
the
days
;
it
was
adjudged
that
by
her
death
that
payment
which
was
due
at
the
Feast
preceding
was
discharged
.
In
the
Case
at
Bar
the
Condition
is
,
that
if
the
Son
should
not
convey
when
of
Age
,
if
the
Defendant
re-pay
Now
certainly
these
words
make
the
Condition
disjunctive
'T
is
like
the
common
Case
of
Bail
entred
into
in
this
Court
,
whereby
the
Parties
undertake
that
the
Defendant
shall
render
himself
to
Prison
if
condemned
in
the
Action
,
they
shall
pay
the
condemnation
mony
;
this
is
a
disjunctive
condition
,
and
if
the
Defendant
dye
before
the
return
of
the
second
the
Bail
are
discharged
that
if
a
condition
be
to
make
an
Assurance
of
Land
to
the
Obligee
his
Heirs
,
and
the
Obligee
dies
before
the
Assurance
made
,
yet
it
shall
be
made
to
the
Heir
,
for
this
copulative
is
a
disjunctive
.
DEbt
upon
a
Iudgment
obtained
in
this
Court
,
setting
forth
the
said
Iudgment
And
upon
a
Demurrer
to
the
Declaration
this
Objection
was
made
,
It
doth
not
appear
that
the
Iudgment
was
in
force
,
or
where
the
Reeord
was
at
the
time
of
this
Action
brought
;
he
should
have
declared
The
Court
held
it
was
but
matter
of
form
,
but
being
upon
a
Demurrer
it
was
not
amendable
.
TRespass
by
the
Assignees
of
Commissioners
of
Bankrupcy
for
taking
of
their
Goods
upon
not
Guilty
pleaded
,
the
Iury
find
a
special
Verdict
,
the
substance
of
which
was
,
on
the
became
a
Bankrupt
,
against
whom
a
Iudgment
was
formerly
obtained
;
the
Iudgment
Creditor
sued
out
a
and
the
Sheriffs
of
by
virtue
thereof
,
did
on
the
day
of
seize
the
Goods
of
the
said
that
after
the
seizure
,
and
before
any
(
which
is
a
Prerogative
Writ
)
issued
out
of
the
against
two
persons
who
were
indebted
to
the
King
,
and
by
inquisition
this
was
found
to
be
indebted
to
them
,
whereupon
parcel
of
the
Goods
in
the
Declaration
was
seized
by
the
Sheriffs
upon
the
said
Extent
,
and
sold
,
and
the
Mony
paid
to
the
Creditors
,
but
before
the
said
Sale
,
or
any
execution
of
the
Process
,
a
Commission
of
Bankrupcy
was
had
against
and
that
the
Commissioners
on
the
second
of
assigned
the
Goods
to
the
Plaintiff
.
The
Question
was
,
whether
this
Extent
did
not
come
too
late
?
And
it
was
held
it
did
;
or
whether
the
was
well
executed
,
so
that
the
Assignees
of
the
Bankrupts
Estate
could
not
have
a
Title
to
those
Goods
which
were
taken
before
in
Execution
,
and
so
in
And
it
was
held
that
they
had
no
Title
.
WRIE
of
Error
upon
a
Iudgment
in
Dower
,
and
the
Error
assigned
was
,
that
the
Tenant
in
Dower
was
an
Infant
,
and
no
Warrant
was
alledged
of
the
admission
of
any
Guardian
,
that
it
might
appear
to
be
the
act
of
the
Court
;
't
is
true
an
Infant
may
sue
by
but
shall
not
appear
by
Attorny
but
by
Guardian
,
because
't
is
intended
by
Law
,
that
he
hath
not
sufficient
discretion
to
chuse
an
Attorny
,
therefore
't
is
provided
that
he
appear
which
is
done
by
the
Court
,
who
are
always
careful
of
Infancy
,
and
a
special
Entry
is
made
upon
the
Roll.
The
Appearance
is
by
the
Guardian
in
his
own
Name
:
it
should
have
been
in
the
name
of
the
Party
Settlement
was
made
as
followeth
I
give
,
grant
and
confirm
Sarah
Stokes
The
Question
was
,
whether
this
did
amount
to
a
Covenant
to
stand
seised
,
so
as
to
raise
an
use
to
without
transmutation
of
the
possession
The
Objection
against
it
was
that
Vses
are
created
chiefly
by
the
intention
of
the
Parties
,
and
that
by
these
words
the
Feoffor
did
intend
the
Land
should
pass
at
Common
Law
;
so
it
could
not
be
a
Covenant
to
stand
seised
;
't
is
like
the
Case
where
a
Letter
of
Attorny
is
in
the
Deed
,
or
a
Covenant
to
make
Livery
,
there
nothing
shall
pass
by
way
of
use
,
but
the
possession
,
according
to
the
course
of
the
Common
Law
;
and
therefore
there
being
neither
Livery
and
Seisin
or
Attornment
,
no
use
will
pass
to
It
cannot
be
a
Bargain
and
Sale
,
for
that
is
only
where
a
Recompence
is
on
each
side
to
make
the
Contract
good
;
besides
,
the
Deed
is
not
inrolled
To
this
it
was
answered
that
it
shall
be
construed
to
be
a
Covenant
to
stand
seised
,
though
the
formal
words
are
wanting
to
make
it
so
;
and
for
that
purpose
it
was
compared
to
's
Case
who
being
seised
in
Fee
,
devised
his
Land
to
for
Life
,
remainder
over
for
Life
,
reserving
a
Rent
:
and
afterwards
by
Indenture
in
consideration
of
Mony
,
did
the
same
Lands
to
years
,
reserving
a
Rent
,
the
Lessee
for
Life
did
not
attorn
,
in
which
Case
there
was
not
one
word
of
any
use
,
or
any
attornment
to
make
it
pass
by
Grant
,
and
the
Question
was
,
whether
this
Lease
for
years
shall
amount
to
a
Bargain
and
Sale
,
so
that
the
Reversion
together
with
the
Rent
shall
pass
to
the
Lessee
,
without
Attornment
and
it
was
held
that
by
construction
of
Law
it
did
amount
to
a
Bargain
and
Sale
,
for
the
words
import
as
much
.
And
in
this
Case
it
was
adjudged
that
it
was
a
Covenant
to
stand
seised
.
IN
Ejectment
the
Plaintiff
declared
and
had
a
Verdict
,
but
Iudgment
was
arrested
,
because
an
Ejectment
will
not
lye
of
a
Tenement
,
for
't
is
a
word
of
an
uncertain
signification
,
it
may
be
an
Advowson
House
or
Land
;
but
it
is
good
in
Dower
;
so
is
for
this
addition
makes
it
certain
that
the
Tenement
intended
is
a
House
.
Motion
was
made
for
a
to
be
directed
to
a
Coroner
,
who
had
returned
his
Inquisition
upon
the
death
of
that
he
was
not
when
in
truth
he
was
But
it
was
opposed
by
Serjeant
and
Mr.
who
said
,
that
the
Law
gives
great
credit
to
the
Inquest
of
a
Coroner
,
and
that
a
is
seldom
or
never
granted
,
tho'
it
appear
to
the
Court
upon
Affidavits
,
that
the
Party
had
his
Senses
.
It
hath
been
granted
where
any
fault
is
in
the
Coroner
,
or
any
incertainty
in
the
Inquisition
returned
.
That
there
is
such
a
Writ
it
cannot
be
denied
but
't
is
generally
granted
upon
Offices
or
Tenures
,
and
directed
to
the
Sheriff
,
but
never
to
a
Coroner
in
the
case
of
a
who
makes
his
Enquiry
Thomas
Powell
John
Powell
Thomas
Jennor
THE
Defendant
was
Tenant
of
Customary
Lands
held
of
the
Manor
of
of
which
Manor
was
Lord
Indebitatus
Ass
That
a
Fine
was
due
to
him
for
an
admission
:
That
upon
the
death
of
the
said
Lord
,
the
Manor
descended
to
as
his
Son
and
Heir
,
who
died
,
and
the
Plaintiff
,
as
Executor
to
the
Heir
,
brought
an
for
this
Fine
He
declared
also
that
the
Defendant
was
indebted
to
him
in
for
a
reasonable
Fine
The
Plaintiff
had
a
Verdict
and
entire
Damages
,
and
it
was
now
moved
in
arrest
of
Iudgment
that
an
will
not
lie
for
a
Customary
Fine
,
because
it
doth
not
arise
upon
any
Contract
of
the
Parties
,
but
upon
the
Tenure
of
the
Land
;
for
upon
the
death
of
the
Lord
there
is
a
Relief
paid
;
for
there
must
be
some
personal
Contract
to
maintain
an
Action
of
Debt
or
an
and
therefore
it
was
held
that
where
the
Plaintiff
a
Ware-house
to
the
Defendant
,
he
promised
to
pay
Week
.
An
was
brought
for
this
Rent
,
and
a
Verdict
for
the
Plaintiff
:
And
a
Motion
was
made
in
Arrest
of
Iudgment
,
that
this
was
a
Lease
at
Will
,
and
the
weekly
payment
was
in
the
nature
of
a
Rent
;
and
it
was
agreed
that
an
would
not
lie
for
a
Rent
reserved
,
because
it
sounds
in
the
Realty
,
but
because
it
was
only
a
Promise
in
consideration
of
the
occupying
of
the
Warehouse
,
the
Action
was
held
to
be
well
brought
.
Where
the
Cause
of
an
Action
is
not
grounded
upon
a
Contract
but
upon
some
special
Matter
,
there
an
will
not
lie
,
and
therefore
it
will
not
lie
upon
a
Bill
of
Exchange
,
or
upon
an
Award
,
or
for
Rent
,
though
there
is
a
Privity
both
of
Contract
and
Estate
,
without
a
special
It
was
argued
,
that
the
Action
lies
;
for
though
a
Fine
savours
of
the
Realty
,
yet
't
is
a
certain
Duty
.
In
all
Cases
where
Debt
will
lie
upon
a
simple
Contract
there
an
will
lie
likewise
;
't
is
true
,
this
doth
concern
the
Inheritance
,
but
yet
't
is
a
Contract
that
the
Tenant
shall
be
admitted
paying
the
Fine
.
It
hath
been
also
maintained
for
Mony
had
and
received
out
of
the
Office
of
for
the
Plaintiffs
use
,
and
for
Scavage
Mony
due
to
the
Mayor
and
Commonalty
of
which
is
also
an
Inheritance
'T
is
a
Contract
implyed
by
Law
,
and
therefore
the
Action
is
well
brought
.
Afterwards
in
by
the
Opinion
of
Iustice
Iudgment
was
given
for
the
Plaintiff
:
But
the
Chief
Iustice
was
of
another
Opinion
;
for
he
held
that
if
the
Defendant
had
died
indebted
to
another
by
Bond
,
and
had
not
Assets
besides
what
would
fatisfie
this
Fine
,
if
the
Executor
had
paid
it
to
the
Plaintiff
it
would
have
been
a
in
him
Suppose
the
Defendant
promiseth
,
that
in
consideration
that
the
Plaintiff
would
demise
to
him
certain
Lands
that
then
he
would
pay
the
Rent
.
If
the
Defendant
pleads
the
Plaintiff
must
prove
an
express
Promise
,
or
be
Non
suit
.
Also
here
is
no
Tenure
or
Custom
set
out
.
Yet
by
the
Opinion
of
the
other
three
Iustices
the
Plaintiff
had
his
Iudgment
.
INformation
upon
the
Statute
of
prohibiting
the
Importation
of
several
Commodities
,
and
amongst
the
rest
under
the
Penalty
of
to
be
paid
by
the
Importer
,
and
by
the
Vendor
,
and
the
Goods
to
be
forfeited
.
The
Information
sets
forth
,
that
a
Packet
containing
so
many
yards
of
Lace
was
imported
by
the
Defendant
from
and
that
he
did
conceal
it
to
hinder
the
Seisure
;
and
that
he
did
privately
sell
it
Vpon
Not-Guilty
pleaded
the
King
had
a
Verdict
,
and
on
the
there
came
forth
a
general
in
which
were
these
Words
Except
all
Concealments
,
Frauds
or
any
other
Mony
due
or
to
be
due
to
us
,
Nomine
Poena's
The
Question
now
was
,
whether
this
Forfeiture
was
excused
by
this
Pardon
.
The
Attorney
General
argued
,
that
it
was
not
,
because
an
Interest
is
vested
in
the
King
by
the
Iudgment
,
and
that
no
particular
or
general
Pardon
shall
divest
it
without
words
of
Restitution
.
So
was
who
had
Iudgment
against
another
and
then
became
his
Administrator
brought
a
The
Debtor
pleaded
that
after
the
Iudgment
the
Intestate
hanged
himself
,
which
was
found
by
the
Coroners
Enquest
returned
into
this
Court.
The
Plaintiff
replied
the
Act
of
But
it
was
adjudged
for
the
Defendant
;
for
when
the
Inquisition
was
returned
,
then
the
Debt
was
vested
in
the
King
,
which
could
not
be
divested
without
particular
words
of
Restitution
,
and
which
were
wanting
in
that
Act
of
Pardon
.
The
most
proper
word
in
the
Body
of
this
Pardon
which
seems
to
excuse
the
Defendant
,
is
the
word
but
the
same
word
is
likewise
in
the
Exception
,
&c.
Now
the
concealing
of
forfeited
Goods
from
Seisure
is
an
Offence
excepted
;
for
't
is
a
remedy
for
the
King's
Duty
,
of
which
he
was
hindred
by
the
Concealment
.
'T
is
true
,
the
first
part
of
the
Pardon
excuseth
all
Misdemeanours
comitted
against
the
King
in
his
standing
Revenue
;
but
this
Exception
takes
in
all
in
answering
of
the
Revenue
,
and
this
Information
is
principally
grounded
upon
Fraud
so
that
the
Exception
ought
to
be
taken
as
largely
for
the
King
as
the
Pardon
it self
to
discharge
the
Subject
.
No
Fraud
tending
to
the
diminution
of
the
Revenue
is
pardoned
,
for
it
excepts
not
only
all
Concealments
in
collecting
the
Revenue
,
but
other
Mony
due
or
to
be
due
to
the
King
.
If
therefore
when
the
King
is
entituled
by
Inquisition
,
Office
or
Record
,
there
must
be
express
and
not
general
words
to
pardon
it
;
and
since
this
Fact
was
committed
before
the
Pardon
came
out
,
and
so
found
by
the
Iury
,
whose
Verdict
is
of
more
value
than
an
Enquest
of
Office
;
so
that
the
King
by
this
means
is
entituled
to
the
Goods
by
Record
,
and
that
before
the
Pardon
;
for
these
Reasons
it
cannot
be
revested
in
the
party
.
and
Mr.
The
Question
is
what
Interest
the
King
hath
by
this
Verdict
;
for
as
to
the
Offence
it self
't
is
within
the
Body
of
the
Pardon
,
for
all
Misdemeanours
and
are
pardoned
;
and
the
Exception
doth
not
reach
this
Case
,
for
that
excepts
Misdemeanours
in
answering
of
the
Now
that
which
arises
by
a
Forfeiture
can
never
be
taken
to
be
part
of
the
King's
Revenue
,
because
the
Revenue
is
properly
a
stated
Duty
originally
setled
on
the
King
;
and
the
Penalty
to
be
inflicted
for
this
Misdemeanour
cannot
be
a
Revenue
,
because
the
Court
have
not
yet
given
Iudgment
;
so
that
't
is
incertain
what
Fine
they
will
set
,
and
this
appears
more
plain
,
because
the
King
may
assign
his
Revenue
,
but
cannot
grant
over
a
Penalty
.
The
Information
is
not
grounded
upon
any
Act
of
Parliament
which
establishes
the
Revenue
,
but
for
concealing
of
a
thing
forfeited
to
prevent
the
Seisure
thereof
,
which
indeed
may
be
a
casual
Revenue
,
as
all
Fines
are
;
so
that
if
this
should
be
taken
as
an
committed
against
the
King
in
deceiving
him
of
this
Revenue
,
then
the
first
part
of
the
Pardon
dischargeth
all
such
Offences
and
the
Exception
pardons
none
.
'T
is
for
these
Reasons
that
the
Case
cannot
fall
under
any
of
the
words
in
the
Exception
,
no
not
under
these
Words
,
because
no
Mony
is
yet
due
to
him
.
'T
is
true
,
the
Iury
have
found
it
a
Misdemeanour
,
which
is
finable
;
but
until
the
Fine
is
set
no
Mony
is
due
,
because
the
Court
may
set
a
greater
or
less
Fine
as
they
shall
see
cause
:
And
if
any
other
Construction
should
be
made
of
this
Exception
,
then
every
thing
for
which
a
Fine
may
be
set
,
is
excepted
,
and
this
will
be
to
make
the
Pardon
signifie
nothing
;
for
what
is
meant
by
Offences
and
Misdemeanours
if
they
should
be
pardoned
,
and
yet
the
Fine
arising
thereon
should
not
?
But
admitting
that
all
Offences
relating
to
the
Concealment
of
collecting
of
the
Revenue
are
excepted
,
then
this
Revenue
must
be
either
antecedent
or
it
must
arise
by
the
Fine
.
'T
is
no
antecedent
Revenue
;
this
appears
by
the
Book
of
Rates
wherein
the
King
's
stated
Revenue
is
set
down
,
and
no
mention
of
this
;
so
that
the
Revenue
to
which
this
relates
must
arise
upon
the
Offence
;
and
what
an
absurd
thing
is
it
to
say
,
that
all
Offences
are
pardoned
by
one
part
of
this
general
Pardon
,
and
by
the
Exception
none
are
pardoned
?
Besides
,
the
Information
is
not
grounded
upon
that
part
of
the
Statute
which
inflicts
a
Penalty
upon
the
person
who
exposeth
prohibited
Goods
to
Sale
,
for
then
they
would
sue
for
the
therefore
it
must
be
upon
the
Forfeiture
,
which
is
expresly
pardoned
;
and
though
there
is
a
Conviction
,
yet
nothing
is
vested
in
the
King
before
Iudgment
,
because
it
may
be
arrested
;
and
therefore
is
in
no
wise
applicable
to
this
,
for
the
Debt
which
was
due
to
him
was
actually
vested
in
the
King
by
the
Inquisition
returned
here
,
which
found
him
to
be
Libel
in
the
Admiralty
against
a
Ship
called
the
setting
forth
that
the
said
.
Ship
wanted
Necessaries
and
that
the
Master
took
up
several
Sums
of
the
Plaintiff
at
for
which
he
did
the
said
Ship
;
and
upon
a
Suggestion
that
this
Contract
was
made
at
St.
Council
moved
for
a
Prohibition
,
upon
which
a
Question
did
arise
,
whether
a
Master
of
a
Vessel
can
pawn
it
for
Necessaries
,
and
the
person
to
whom
't
is
pawned
shall
sue
for
the
Mony
in
the
Admiralty
here
.
By
the
Common
Law
a
Master
of
a
Ship
had
neither
a
general
or
special
property
in
it
,
and
therefore
could
not
pawn
it
;
but
by
the
Civil
Law
in
cases
of
necessity
he
may
rather
,
than
the
Voyage
should
be
lost
;
and
if
any
such
cause
appear
't
is
within
the
Iurisdiction
of
the
Admiralty
,
but
then
the
pawning
must
be
Now
the
Statute
of
which
abridgeth
the
Iurisdiction
of
the
Admiralty
in
Trials
of
and
which
appointeth
Offences
committed
on
the
Sea
to
be
tried
by
a
Commission
under
the
great
Seal
directed
to
the
Admiral
and
others
according
to
the
course
of
the
Common
Law
,
and
not
according
to
the
Civil
Law
,
gives
a
remedy
in
this
very
Case
,
for
it
provides
that
it
shall
not
be
prejudicial
to
any
person
for
taking
of
Victuals
,
Gables
,
Rapes
,
in
cases
of
necessity
paying
for
the
same
So
that
this
is
an
excepted
Case
,
because
of
the
and
't
is
like
the
Cases
of
suing
for
Mariners
Wages
in
this
Court
.
The
Service
was
at
Sea
so
that
the
hath
no
proper
Iurisdiction
over
this
Matter
.
'T
is
true
,
Prohibitions
have
been
denied
for
the
first
is
reported
by
Iustice
but
the
reason
seems
to
be
because
they
proceed
in
the
Admiralty
not
upon
any
Contract
at
Land
,
but
upon
the
Merits
of
the
Service
at
Sea
,
and
allow
or
deduct
the
Wages
according
to
the
good
or
bad
performance
of
the
Services
in
the
Voyage
.
Besides
,
there
is
an
Act
of
Parliament
which
warrants
she
Proceedings
in
the
Court
of
Admiralty
for
Mariners
Wages
:
For
in
a
Parliament
held
in
the
year
of
the
Commons
petititioned
for
remedy
against
great
Wages
taken
by
Masters
of
Ships
and
Mariners
;
to
which
the
King
answered
that
the
Admiral
shall
appoint
them
to
take
reasonable
Wages
,
or
shall
punish
them
.
Now
the
reason
of
the
Civil
Law
,
which
allows
the
pawning
of
a
Ship
for
necessaries
seems
to
be
plain
,
because
there
may
be
an
extraordinary
and
invincible
necessity
but
not
at
Land
.
So
that
this
being
a
Contract
beyond
Sea
and
at
Land
the
Court
of
Admiralty
cannot
have
any
Iurisdiction
over
it
for
where
the
Common
Law
cannot
relieve
,
in
such
Cases
the
Admiralty
shall
not
,
because
they
are
limited
to
Acts
done
for
if
the
Law
should
be
otherwise
the
Master
may
take
up
as
much
Mony
as
he
will
.
That
things
arising
upon
Land
may
be
sued
for
in
the
Admiralty
is
no
new
thing
;
for
so
it
is
in
all
Cases
of
Stipulation
;
Mariners
Wages
are
also
recoverable
in
that
Court
,
not
by
vertue
of
any
Act
of
Parliament
,
but
because
it
grows
due
for
Services
done
at
Sea
,
which
is
properly
a
Maritime
Cause
,
though
the
Contract
for
that
Service
with
the
Master
was
at
Land
:
But
the
principal
reason
why
Mariners
Wages
are
sued
for
in
the
Admiralty
is
because
the
Ship
is
liable
as
well
as
the
Master
,
who
may
be
poor
and
not
able
to
answer
the
Seamen
.
Take
a
Trial
upon
the
necessity
in
this
Case
.
THE
Plaintiff
recovered
a
Verdict
against
the
Defendant
in
an
Action
upon
the
Case
.
The
Defendant
now
moved
by
his
Council
,
that
the
Plaintiff
should
file
the
because
all
Writs
which
are
returnable
in
this
Court
ought
to
be
filed
,
otherwise
a
Damage
may
ensue
to
the
Officers
,
and
a
Wrong
to
the
King
upon
the
Forfeitures
of
Issues
by
the
Iurors
,
which
are
always
estreated
upon
the
coming
in
of
the
The
Council
insisted
upon
it
,
that
it
was
the
Common
Law
of
this
Realm
,
and
that
it
was
the
Right
of
the
Subject
that
all
Writs
which
issue
out
of
the
King's
Courts
should
be
filed
,
that
the
Panel
of
the
is
part
of
the
Record
,
and
that
an
Attaint
could
not
be
brought
against
the
Iury
if
these
Writs
were
not
filed
,
because
This
matter
was
referred
to
some
of
the
ancient
Clerks
of
the
Court
,
and
to
the
Secondary
who
reported
that
the
Court
never
ordered
a
Plaintiff
to
file
a
against
his
Will
.
for
breaking
of
the
Plaintiffs
Close
and
chasing
and
killing
of
Fowl
in
his
The
Defendant
as
to
all
the
Trespass
,
but
chasing
and
killing
of
the
Fowl
,
pleaded
Not-Guilty
,
and
as
to
that
he
sets
forth
that
the
Dean
and
Chapter
of
were
seized
in
Fee
of
the
Mannor
of
of
which
the
said
was
parcel
,
and
that
they
and
all
those
,
whose
Estates
they
had
,
had
liberty
for
themselves
,
their
and
Farmers
to
that
the
Dean
and
Chapter
did
make
a
Lease
of
parcel
of
the
said
Mannor
to
the
Defendants
for
one
and
twenty
years
,
reserving
a
Rent
,
and
so
they
justifie
as
Tenants
,
they
did
fowl
in
the
said
Warren
.
The
Plaintiff
replied
Vpon
which
they
were
at
Issue
,
and
there
was
a
Verdict
for
the
Defendants
.
moved
in
arrest
of
Iudgment
,
because
't
is
an
unreasonable
Prescription
for
an
interest
in
every
Tenant
of
the
Mannor
to
fowl
in
that
Warren
:
It
hath
been
so
ruled
for
a
Common
,
without
saying
for
his
Cattle
Levant
and
Couchant
,
for
it
must
be
for
a
certain
number
.
In
this
Case
the
Prescription
is
not
only
in
the
person
of
the
Lord
,
but
for
all
his
Farmers
and
Tenants
,
who
cannot
prescribe
to
have
a
free
Warren
It
was
argued
that
such
a
Prescription
might
not
be
good
upon
a
Demurrer
,
but
't
is
well
enough
after
a
Verdict
.
'T
is
not
an
Objection
to
say
,
that
this
Prescription
is
too
large
,
for
all
Tenants
as
well
Freeholders
as
Copyholders
to
prescribe
in
the
Soil
of
another
;
and
so
there
may
not
be
enough
for
the
Lord
himself
,
because
this
is
a
Profit
apprender
and
for
such
the
Tenants
of
a
Mannor
may
prescribe
by
a
exclusive
of
the
Lord
;
and
of
that
Opinion
was
the
Court
,
so
the
Defendant
had
his
Iudgment
.
An
Information
was
brought
in
this
Court
for
throwing
down
of
Hedges
and
Ditches
,
in
which
there
were
several
Defendants
,
who
pleaded
specially
,
and
the
Clerk
of
the
Crown
Office
demanded
for
every
Name
,
(
which
came
to
for
his
Fees
;
)
in
this
Plea
,
and
by
reason
of
the
great
charge
the
Defendants
did
not
plead
but
let
Iudgment
go
by
default
.
moved
that
the
Plea
might
be
received
,
and
that
it
might
be
enquired
what
Fees
were
due
,
which
the
Court
would
not
try
upon
a
Motion
,
but
advised
an
Indictment
of
Extortion
,
if
their
Clerk
was
guilty
.
moved
to
affirm
an
Order
made
upon
an
Appeal
to
the
Quarter
Sessions
of
the
Peace
for
the
County
of
The
Case
was
served
an
Apprentiship
at
where
he
married
and
had
several
Children
.
His
Wife
died
,
he
marryed
another
Woman
,
who
had
a
Term
for
years
of
an
House
in
the
Parish
of
where
he
lived
for
a
year
and
left
Afterwards
he
returned
to
was
rated
to
the
Poor
,
and
lived
there
two
years
,
then
he
dyed
.
In
a
short
time
after
his
death
his
Widow
and
Children
were
removed
by
an
Order
of
two
Iustices
to
from
which
Order
they
appeal
;
and
by
the
Order
of
Sessions
they
were
declared
to
be
Inhabitants
of
It
was
now
moved
by
Mr.
to
quash
it
,
because
it
doth
not
appear
,
that
he
gave
any
formal
Notice
in
Writing
to
the
Overseers
of
when
he
returned
from
and
therefore
ought
to
be
settled
there
,
and
not
at
for
being
taxed
to
the
Poor
will
not
amount
to
Notice
;
and
he
cited
a
stronger
Case
,
which
was
,
The
Churchwardens
of
certified
under
their
Hands
,
that
such
a
person
was
an
Inhabitant
within
their
Parish
,
but
because
no
Note
was
left
with
them
pursuant
to
the
Statute
notwithstanding
such
Certificate
he
was
held
to
be
no
Inhabitant
within
their
Parish
,
and
of
that
Opinion
was
all
the
Court.
three
persons
made
Cognizance
as
Bayliffs
to
per
Attorn
and
so
justifie
the
taking
of
the
Cattle
Damage
Feasant
in
his
Ground
.
The
Plaintiff
replied
that
the
Cattle
were
taken
in
his
Ground
,
and
traverseth
the
taking
in
the
place
mentioned
in
the
Cognizance
.
There
was
Iudgment
for
the
Defendant
;
upon
which
a
Writ
of
Error
was
brought
,
and
the
Error
assigned
was
,
that
one
of
the
Bayliffs
was
an
Infant
and
made
Cognizance
when
he
ought
to
do
it
This
might
be
pleaded
in
but
't
is
not
Error
;
for
an
Infant
Administrator
may
bring
an
Action
of
Debt
because
he
sues
in
the
Right
of
another
,
and
so
his
Infancy
shall
be
no
impediment
to
him
.
The
Bayliff
in
this
Case
is
as
much
a
Plaintiff
as
the
Administrator
in
the
other
,
for
he
makes
Cognizance
in
the
Right
of
another
;
and
in
such
case
,
if
two
are
of
Age
and
one
is
not
they
who
are
of
Age
may
make
an
Attorney
for
him
who
is
not
.
So
if
there
are
two
one
of
them
of
Age
and
the
other
not
,
one
may
make
an
Attorney
for
the
other
.
There
is
no
difference
between
in
this
Case
;
for
Executors
recover
in
the
right
of
the
Testator
,
and
the
Bayliffs
in
the
Right
of
him
who
hath
the
Inheritance
.
Besides
the
Avowants
are
in
the
nature
of
Plaintiffs
,
and
whereever
a
Plaintiff
recovers
the
Defendant
shall
not
assign
Infancy
for
Error
.
in
the
in
which
Action
there
were
four
Plaintiffs
;
one
of
them
died
before
Iudgment
,
the
others
recover
,
and
now
the
Defendant
brought
a
Writ
of
Error
in
this
Court
to
reverse
that
Iudgment
,
and
the
Question
was
,
whether
the
Action
was
abated
by
the
death
of
this
person
.
Those
who
argued
for
the
Plaintiffs
in
the
Action
held
that
the
Debt
will
survive
,
and
so
will
the
Action
,
for
't
is
not
altered
by
the
death
of
the
party
;
for
where
Damages
only
are
to
be
recovered
in
an
Action
well
commenced
by
several
Plaintiffs
,
and
part
of
that
Action
is
determined
by
the
Act
of
God
or
by
the
Law
,
and
the
like
Action
remaineth
for
the
residue
,
the
Writ
shall
not
abate
.
As
in
if
the
Term
should
expire
pending
the
Suit
,
the
Plaintiff
shall
go
on
to
recover
Damages
;
for
though
the
Action
is
at
end
the
possession
,
yet
it
continues
for
the
Damages
after
the
Term
ended
.
So
if
the
Lessor
bring
Waste
against
and
pending
the
Writ
dieth
,
the
Writ
shall
not
abate
,
because
no
other
person
can
be
sued
for
Damages
but
the
Survivor
.
So
where
was
brought
by
two
and
after
the
Verdict
one
of
them
died
,
the
Iudgment
shall
not
be
arrested
,
because
the
Action
survives
to
the
other
.
He
admitted
the
Law
to
be
that
where
two
Iointenants
are
Defendants
,
the
death
of
one
would
not
abate
the
Writ
,
because
the
Action
is
joint
and
several
against
them
.
But
in
all
Cases
where
two
or
more
are
to
recover
a
personal
thing
,
there
the
Death
or
Release
of
one
shall
abate
the
Action
as
to
the
rest
,
though
't
is
otherwise
when
they
are
Defendants
and
are
to
discharge
themselves
of
a
personalty
.
And
therefore
in
an
by
two
,
the
death
of
one
shall
not
abate
the
Writ
because
't
is
in
discharge
.
Now
in
this
Case
Iudgment
must
be
entred
for
a
dead
Man
,
which
cannot
be
,
for
't
is
not
consistent
with
reason
.
The
Case
of
is
express
in
it
,
which
was
this
,
was
brought
by
six
and
Iudgment
for
them
,
one
of
them
died
,
the
Iudgment
could
not
be
entred
.
'T
is
true
,
where
so
many
are
Defendants
and
one
dies
the
Action
is
not
abated
,
but
then
it
must
be
suggested
on
the
Roll.
Actions
grounded
upon
Torts
will
survive
,
but
those
upon
Contracts
will
not
.
The
Iudgment
was
reversed
.
THE
Plaintiff
brought
an
Action
of
Trespass
on
the
Case
,
and
declared
that
he
was
seized
of
an
ancient
Mesuage
and
of
a
Meadow
,
and
an
Acre
of
Land
parcel
of
the
Demesnes
of
the
Mannor
of
and
sets
forth
a
Custom
to
grant
the
same
by
Copy
of
Court
Roll
;
and
that
there
are
several
Freehold
Tenements
parcel
of
the
said
Mannor
,
and
likewise
several
Customary
Tenements
parcel
also
thereof
grantable
and
that
all
the
Freeholders
&c.
together
with
the
Copyholders
of
the
said
Mannor
have
enjoyed
of
the
Ground
called
parcel
of
the
said
Mannor
for
their
Cattle
&c.
and
had
liberty
to
cut
the
Willows
growing
there
for
the
mending
of
their
Houses
which
did
eat
the
Willows
,
by
reason
whereof
the
Plaintiff
could
have
no
benefit
of
them
,
Vpon
Not
Guilty
pleaded
there
was
a
Verdict
for
the
Plaintiff
.
And
now
Serjeant
moved
in
arrest
of
Iudgment
,
and
took
these
Exceptions
.
As
to
the
manner
of
the
Prescription
which
the
Plaintiff
had
laid
to
be
in
the
Freeholders
,
and
then
alledged
a
Custom
for
the
Copyholders
,
and
so
made
a
joint
Title
in
both
,
which
cannot
be
done
in
the
same
Declaration
,
because
a
Prescription
is
always
alledged
to
be
in
a
person
,
and
a
Custom
must
be
limited
to
a
place
,
and
therefore
an
entire
thing
cannot
be
claimed
both
by
a
Prescription
and
Custom
,
because
the
Grant
to
the
Freeholders
and
this
Vsage
amongst
the
Copiholders
could
not
begin
together
.
As
to
the
Custom
,
't
is
not
good
as
pleaded
to
exclude
the
Lord
,
for
it
can
never
have
a
good
Commencement
,
because
Copyholders
have
Common
in
the
Lords
Soil
only
by
permission
to
improve
their
Estates
,
which
Common
being
spared
by
the
Lord
and
used
by
the
Tenant
becomes
a
Custom
;
but
no
Vsage
amongst
the
Tenants
or
permission
of
the
Lord
can
wholly
divest
him
of
his
Soil
and
vest
an
Interest
in
them
who
in
the
beginning
were
only
his
Tenants
at
Will
.
The
third
Exception
,
and
which
he
chiefly
relyed
on
,
was
,
That
this
is
a
to
which
all
the
Tenants
of
the
Mannor
are
entituled
,
and
that
makes
them
Tenants
in
Common
;
and
therefore
in
this
Action
where
Damages
are
to
be
recovered
they
ought
all
to
join
.
'T
is
true
,
in
real
Actions
Tenants
in
Common
always
sever
,
but
in
Trespasses
and
in
personal
Actions
they
always
join
;
and
the
reason
is
plain
,
because
in
those
Actions
though
their
Estates
are
several
,
yet
the
Damages
survive
to
all
,
and
it
would
be
unreasonable
to
bring
several
Actions
for
one
single
Trespass
.
It
was
argued
that
it
cannot
be
denied
,
but
that
there
may
be
a
Custom
or
Prescription
to
have
but
whether
both
Prescription
and
Custom
can
be
joyned
together
is
the
doubt
now
before
the
Court
;
and
as
to
that
he
held
it
was
well
enough
pleaded
,
for
where
there
is
an
unusual
Right
there
must
be
the
like
remedy
to
recover
that
Right
;
it
was
thus
pleaded
in
But
admitting
it
not
to
be
well
pleaded
;
't
is
then
but
a
double
Plea
,
to
which
the
Plaintiff
ought
to
have
demurred
;
and
this
may
serve
for
an
Answer
to
the
first
Exceptions
.
Then
as
to
the
last
Objection
that
't
is
a
for
which
all
the
Tenants
ought
to
join
;
't
is
true
,
a
Common
is
no
more
than
a
yet
one
Commoner
may
bring
an
Action
against
his
Fellow
;
besides
,
in
this
Case
they
are
not
Tenants
in
Common
,
for
every
Man
is
seized
severally
of
his
Freehold
.
was
brought
upon
a
Recognizance
of
to
shew
cause
the
Plaintiff
should
not
have
Execution
where
it
should
have
been
And
upon
a
Demurrer
it
was
held
that
the
words
were
Surplusage
:
The
Record
was
amended
,
and
a
Rule
that
the
Defendant
should
plead
over
.
THE
Defendant
entred
into
a
Bond
and
save
harmless
a
Parish
from
a
Bastard
Child
.
Debt
was
brought
upon
this
Bond
,
and
upon
generally
pleaded
the
Plaintiff
demurred
,
and
held
the
Demurrer
to
be
good
;
for
if
the
Condition
had
been
only
to
save
harmless
,
then
the
Plea
had
been
good
;
but
't
is
likewise
to
acquit
and
discharge
,
and
in
such
Case
generally
is
no
good
Plea
because
he
should
have
shewed
how
he
did
acquit
and
discharge
the
Parish
,
and
not
answer
the
Damnification
only
.
It
was
argued
that
if
the
Defendnat
had
pleaded
that
he
kept
harmless
and
discharged
the
Parish
,
such
Plea
had
not
been
good
unless
he
had
shewed
how
,
because
't
is
in
the
affirmative
;
but
here
't
is
in
the
negative
,
that
the
Parish
was
not
dampnified
,
and
they
should
have
shewed
a
Breach
;
for
though
in
strictness
this
Plea
doth
not
answer
the
Condition
of
the
Bond
,
yet
it
doth
not
appear
upon
the
whole
Record
,
that
the
Plaintiff
was
dampnified
,
and
if
so
,
then
he
hath
no
cause
of
Action
.
Iudgment
for
the
Defendant
IN
Debt
by
Executor
of
The
Case
was
this
had
Issue
two
Sons
the
Father
being
seized
in
Fee
of
Lands
,
made
a
Settlement
to
the
use
of
himself
for
Life
,
the
Remainder
to
his
eldest
Son
in
Tail
Male
,
the
Remainder
to
his
own
right
Heirs
.
The
Father
died
,
the
Reversion
descended
to
the
Son
,
who
also
died
,
leaving
Issue
his
Son
,
who
died
without
Issue
;
so
that
the
Estate
Tail
was
spent
.
the
second
Son
of
the
elder
,
entred
,
and
an
Action
of
Debt
was
brought
against
him
as
Son
and
Heir
of
the
Father
,
upon
a
Bond
of
entred
into
by
his
Father
,
and
this
Action
was
brought
against
him
,
without
naming
the
intermediate
Heirs
,
his
Brother
and
Nephew
The
Defendant
pleaded
Johannis
Rowden
Johannis
Rowden
Johanne
Rowden
Johannis
Rowden
The
Plaintiff
replied
,
that
the
Defendant
Johanne
Rowden
Vpon
this
pleading
they
were
at
Issue
at
the
Assises
in
and
the
Iury
found
a
special
Verdict
,
the
Father
of
(
now
the
Defendant
)
was
seized
in
Fee
of
a
Messuage
and
Acres
of
Land
in
in
the
said
County
,
and
being
so
seised
,
had
Issue
his
eldest
Son
,
and
the
Defendant
that
on
the
the
elder
did
settle
the
Premisses
upon
himself
for
Life
,
Remainder
That
after
the
death
of
the
Father
,
his
eldest
Son
entred
and
was
possessed
in
Fee-Tail
,
and
was
likewise
entituled
to
the
Reversion
in
Fee
,
and
died
in
the
year
of
King
that
the
Lands
did
descend
to
another
his
only
Son
,
who
died
without
Issue
,
whereupon
the
Lands
descended
to
the
Defendant
as
Heir
of
the
last
mentionted
who
entred
before
this
Action
brought
,
and
was
seised
in
Fee
,
But
whether
upon
the
whole
matter
the
Defendant
hath
any
Lands
by
by
descent
from
in
Fee-simple
,
the
Iury
do
not
know
,
The
Council
on
both
sides
did
agree
that
this
Land
was
chargable
with
the
Debt
,
but
the
Question
was
whether
the
Issue
was
found
for
the
Defendant
,
in
regard
the
Plaintiff
did
not
name
the
intermediate
Heirs
.
It
was
argued
that
the
Defendant
ought
to
be
sued
as
immediate
Heir
to
his
Father
,
and
not
to
his
Nephew
,
for
whoever
claims
by
descent
must
claim
from
him
who
was
last
actually
seised
of
the
this
is
the
express
Doctrine
of
my
Lord
in
his
first
and
if
so
the
Defendant
must
be
charged
as
he
claims
.
Seisin
is
a
material
thing
in
our
Law
,
for
if
I
am
to
make
a
Title
in
a
real
Action
,
I
must
lay
an
actual
seisin
in
every
Man
't
is
so
in
Formedons
in
Descender
and
Remainder
,
in
both
which
you
are
to
run
through
the
whole
Pedegree
.
But
none
can
be
but
to
him
who
was
last
actually
seised
of
the
Fee-simple
,
and
therefore
the
Brother
being
Tenant
in
Tail
,
and
his
Son
the
Issue
in
Tail
,
in
this
Case
they
were
never
seised
of
the
Fee
,
for
that
was
expectant
upon
the
Estate
Tail
,
which
being
spent
,
then
the
Father
was
last
seised
thereof
,
and
so
his
Son
is
justly
and
rightly
sued
as
Son
and
Heir
.
In
some
Cases
the
persons
are
to
be
named
,
not
by
way
of
a
Title
,
but
as
a
Pedigree
;
as
if
there
be
Tenant
for
Life
,
the
Reversion
in
Fee
to
an
Ideot
,
and
an
Vncle
who
is
right
Heir
to
the
Ideot
levied
a
Fine
,
and
died
living
the
Ideot
,
leaving
Issue
a
Son
named
who
had
Issue
who
entred
:
the
Question
was
,
whether
the
Issue
of
the
Vncle
shall
be
barred
by
this
Fine
?
It
was
the
Opinion
of
two
Iudges
that
they
were
not
barred
,
because
the
Vncle
died
in
the
life-time
of
the
Ideot
,
and
nothing
attached
in
him
and
because
the
Issue
claim
in
a
collateral
Line
,
and
do
not
name
the
Father
by
way
of
Title
,
but
by
way
of
Pedigree
.
But
Iustice
who
hath
truly
Reported
the
Case
,
was
of
Opinion
,
that
the
Issue
of
the
Vncle
were
barred
,
because
the
Son
must
make
his
Conveyance
from
the
Father
by
way
of
Title
.
The
Iury
have
found
that
the
Reversion
did
descend
to
the
Defendant
,
as
Heir
to
the
last
't
is
true
,
it
descends
as
a
Reversion
,
but
that
shall
not
charge
him
as
Heir
to
the
Father
,
for
the
other
was
seised
of
the
Estate
Tail
,
which
is
now
spent
,
and
the
last
who
was
seised
of
the
Fee
was
the
Father
,
and
so
the
Defendant
must
be
charged
as
his
Heir
.
'T
is
likewise
true
,
that
where
there
is
an
actual
Seisin
,
you
must
charge
all
,
but
in
this
Case
there
was
nothing
but
a
Reversion
.
Serjeant
for
the
Defendant
In
this
Case
the
Plaintiff
should
have
made
a
special
Declaration
,
for
the
Estate-Tail
and
the
Reversion
in
Fee
are
distinct
and
seperate
Estates
.
the
Nephew
might
have
sold
the
Reversion
and
kept
the
Estate
Tail
;
if
he
had
acknowledged
a
Statute
or
Iudgment
,
it
might
have
been
extended
,
and
if
so
,
then
he
had
such
a
Seisin
that
he
ought
to
have
been
named
.
A
Man
becomes
bound
in
a
Bond
and
died
;
Debt
is
brought
against
the
Heir
;
it
is
not
common
to
say
that
he
had
nothing
by
descent
,
but
only
a
Reversion
expectant
upon
an
Estate
Tayl.
In
the
Case
of
Covenant
was
brought
in
the
Daughter
and
Heir
of
She
pleaded
Issue
was
joyned
before
Sir
then
Chief
Iustice
;
and
it
appearing
upon
Evidence
that
had
a
Son
named
who
died
without
Issue
;
a
Case
was
made
of
it
,
and
Iudgment
was
given
for
the
Defendant
:
the
Plaintiff
took
out
a
new
Original
,
and
then
the
Land
was
sold
,
so
the
Plaintiff
lost
his
Debt
.
Afterwards
in
Iudgment
was
given
for
the
Plaintiff
,
by
the
Opinion
of
three
Iustices
against
Iustice
who
argued
that
the
Defendant
cannot
be
charged
as
immediate
Heir
to
his
Father
;
't
is
true
,
the
Lands
are
Assets
in
his
Hands
and
he
may
be
charged
by
a
special
Declaration
.
In
this
Case
the
intermediate
Heirs
had
a
Reversion
in
Fee
,
which
they
might
have
charged
either
by
Statute
,
Iudgment
,
or
Recognizance
;
they
were
so
seised
that
if
a
Writ
of
Right
had
been
brought
against
them
,
they
might
have
joyned
the
upon
the
right
,
which
proves
they
had
a
Fee
,
and
though
it
was
expectant
on
an
Estate
Tail
,
yet
the
Defendant
claiming
the
Reversion
as
Heir
,
ought
to
make
himself
so
to
him
who
made
the
Gift
.
The
person
who
brings
a
must
name
every
one
to
whom
any
Right
did
descend
,
otherwise
the
Writ
will
abate
A
Man
who
is
sued
as
Heir
,
or
who
entitles
himself
as
such
,
must
shew
how
Heir
.
The
Case
of
is
much
stronger
than
this
for
there
Debt
was
brought
against
the
Daughter
,
as
Heir
of
She
pleaded
and
the
Iury
found
that
died
seised
in
Fee
,
leaving
Issue
the
Defendant
and
his
Wife
then
with
Child
,
who
was
afterwards
delivered
of
a
Son
,
who
died
within
an
hour
;
and
it
was
adjudged
against
the
Plaintiff
,
because
he
declared
against
the
Defendant
as
Daughter
and
Heir
of
the
Father
,
when
she
was
Sister
and
Heir
of
the
Brother
,
who
was
last
seised
.
But
the
other
three
Iudges
were
of
a
contrary
Opinion
.
The
Question
is
not
,
whether
the
Defendant
is
lyable
to
this
Debt
,
but
whether
he
is
properly
charged
as
Heir
to
his
Father
?
or
whether
he
should
have
been
charged
as
Heir
to
his
Nephew
,
who
was
last
seised
?
It
must
be
admitted
that
if
the
Lands
had
descended
to
the
Brother
and
Nephew
of
the
Defendant
in
Fee
,
that
then
they
ought
to
have
been
named
;
but
they
had
only
a
Reversion
in
Fee
expectant
upon
an
Estate
Tail
,
which
was
incertain
,
and
therefore
of
little
value
;
now
though
the
Father
and
Son
had
this
Reversion
in
them
,
yet
the
Estate
Tail
was
known
only
to
those
who
were
Parties
to
the
Settlement
.
'T
is
not
the
Reversion
in
Fee
,
but
the
Possession
which
makes
the
party
inheritable
;
and
therefore
if
Lands
are
given
to
Husband
and
Wife
in
Tail
,
the
Remainder
to
the
right
Heirs
of
the
Husband
;
then
they
have
a
Son
,
and
the
Wife
dies
,
and
the
Husband
hath
a
Son
by
a
second
Venter
,
and
dies
;
the
eldest
Son
enters
and
dies
without
Issue
,
and
his
Vncle
claimed
the
Land
against
the
second
Son
,
but
was
barred
,
because
he
had
not
the
Remainder
in
Fee
in
possession
,
and
yet
he
might
have
sold
or
forfeited
it
.
But
here
the
Reversion
in
Fee
is
now
come
into
possession
,
and
the
Defendant
hath
the
Land
as
Heir
to
his
Father
;
t
is
Assets
only
in
him
,
and
was
not
so
either
in
his
Brother
or
Nephew
,
who
were
neither
of
them
chargeable
,
because
a
Reversion
expectant
upon
an
Estate
Tail
is
not
Assets
.
Iudgment
was
given
for
the
Plaintiff
.
AN
Action
was
brought
against
the
Hundred
for
a
Robbery
,
in
which
the
Plaintiff
declared
,
that
he
was
Robbed
in
such
a
Parish
.
He
had
a
Verdict
:
And
now
Serjeant
moved
in
arrest
of
Iudgment
,
and
the
Exceptions
taken
were
these
,
That
it
doth
not
appear
that
the
Parish
mentioned
in
the
Declaration
was
in
the
Hundred
.
Neither
doth
it
appear
that
the
Robbery
was
committed
in
the
High-way
.
The
Plaintiff
hath
not
alledged
that
it
was
done
in
the
day
time
;
for
if
it
was
not
,
the
Hundred
is
not
lyable
by
Law
.
But
these
Exceptions
were
all
disallowed
,
because
it
being
after
a
Verdict
the
Court
will
suppose
that
there
was
Evidence
given
of
these
Matters
at
the
Trial
,
so
the
Plaintiff
had
his
Iudgment
.
THis
was
a
Trial
at
the
Bar
,
by
a
Iury
,
in
an
Ejectment
brought
by
the
Plaintiffs
as
Heirs
at
Law
to
who
died
seized
in
Fee
of
the
Lands
in
Question
.
Vpon
not
Guilty
pleaded
,
this
Question
did
arise
at
the
Trial
,
Whether
the
Answer
of
a
Guardian
in
shall
be
read
as
Evidence
in
this
Court
to
conclude
the
Infant
:
There
being
some
Opinions
that
it
ought
to
be
read
;
and
the
Defendants
Council
insisting
on
the
contrary
,
Mr
Iustice
being
the
Iustice
,
was
sent
to
the
Court
of
then
sitting
,
to
know
their
Opinions
,
who
returning
made
this
Report
,
Then
the
Plaintiffs
proceeded
to
prove
their
Title
as
Heirs
at
Law
,
by
several
Inquisitions
which
were
brought
into
Court
,
and
by
the
Heralds
Office
.
The
Defendants
Title
likewise
was
thus
proved
,
That
the
Lady
being
seised
in
Fee
did
by
Will
dated
in
devise
the
Lands
to
for
Life
,
Remainder
to
the
Defendant
and
his
Heirs
for
ever
:
That
the
Lady
died
so
seised
,
that
the
Tenant
for
Life
,
and
Father
to
the
Defendant
was
also
dead
,
This
Will
was
proved
by
several
Witnesses
,
one
of
which
likewise
deposed
that
my
Lady
made
two
other
Wills
subsequent
to
this
now
produced
;
and
a
Minister
prov'd
that
she
burnt
a
Will
in
the
Month
of
which
was
in
the
year
Then
the
Plaintiffs
produced
another
Will
made
by
her
at
attested
by
three
Witnesses
so
that
though
it
might
not
be
a
good
Will
to
dispose
the
Estate
,
yet
the
Council
insisted
that
it
was
a
good
Revocation
of
the
other
,
for
sufficient
for
that
purpose
,
within
the
sixth
Paragraph
of
the
Statute
of
Frauds
.
The
Case
of
Sir
was
now
mentioned
,
whose
Will
was
carried
out
of
the
Chamber
where
he
then
was
,
into
a
Lobby
,
and
signed
there
by
the
Witnesses
;
but
one
of
them
swore
that
there
was
a
Window
out
of
that
Room
to
his
Chamber
,
through
which
the
Testator
might
see
the
Witnesses
as
he
lay
in
his
Bed
.
Vpon
which
Evidence
the
Iury
found
this
special
Verdict
,
being
seised
in
Fee
did
on
the
day
of
make
her
Will
,
and
devised
the
Lands
to
for
Life
,
and
afterwards
to
his
Son
,
and
to
his
Heirs
for
ever
,
upon
condition
that
he
take
upon
him
the
Name
of
That
the
purporting
her
Will
,
which
was
signed
,
sealed
and
published
by
her
in
the
presence
of
three
Witnesses
in
the
Chamber
where
she
then
was
,
and
where
she
continued
whilst
the
Witnesses
subscribed
their
Names
in
the
Hall
,
but
that
she
could
not
see
them
so
subscribing
.
They
find
that
the
Lessors
of
the
Plaintiff
are
Heirs
at
Law
,
and
that
they
did
enter
,
This
matter
was
argued
in
Term
following
;
and
the
Question
was
,
whether
this
Writing
purporting
a
Will
,
was
a
Revocation
of
the
former
or
not
,
and
that
depended
upon
the
Construction
of
the
sixth
Paragraph
in
the
Act
of
Frauds
,
and
signed
by
the
party
or
some
other
in
his
presence
,
and
by
his
express
Directions
,
and
shall
be
and
that
such
devise
shall
not
be
revocable
,
but
by
some
other
Will
or
Codicil
in
Writing
,
declaring
the
same
Now
the
want
of
Witnesses
doth
not
make
the
last
Will
void
in
it self
,
but
only
the
Lands
therein
devised
,
it
hath
its
operation
as
to
all
other
purposes
.
It
must
therefore
be
a
Revocation
of
the
former
;
and
this
is
agreeable
to
the
Resolution
of
the
Iudges
in
former
times
,
for
there
being
nothing
in
the
Statute
of
Wills
,
which
directs
what
shall
be
a
Revocation
,
the
Iudges
in
Case
did
declare
that
it
might
be
by
word
of
mouth
,
or
by
the
very
intention
of
the
Testator
to
alter
any
thing
in
the
Will
,
for
before
the
late
Statute
very
few
words
did
amount
to
a
Revocation
.
If
Lands
are
devised
and
afterwards
a
feoffment
is
made
of
the
same
,
but
for
want
of
Livery
and
Seisin
,
't
is
defective
,
yet
this
is
a
Revocation
of
the
Will
,
though
the
Feoffment
is
void
.
The
Council
on
the
other
side
argued
that
this
Will
was
not
void
by
any
Clause
in
the
Statute
of
for
if
this
is
a
Revocation
within
that
Statute
,
then
this
second
Writing
purporting
a
Will
,
must
be
a
good
Will
;
for
if
't
is
not
a
good
Will
,
then
't
is
not
a
good
Revocation
within
that
Law
.
No
Man
will
affirm
that
the
latter
Writing
is
a
good
Will
,
therefore
the
first
being
a
Devise
of
Land
,
cannot
be
revoked
but
by
a
Will
of
Land
,
which
the
second
is
not
.
This
Statute
was
intended
to
remedy
the
mischief
of
parol
Revocations
,
and
therefore
made
such
a
solemnity
requisite
to
a
Revocation
.
It
cannot
be
denied
but
that
this
latter
Writing
was
intended
to
be
made
a
Will
,
but
it
wanting
that
perfection
which
is
required
by
Law
,
it
shall
not
now
be
intended
a
Writing
distinct
from
a
Will
,
so
as
to
make
a
Revocation
within
the
meaning
of
that
Act.
If
a
Man
hath
a
power
of
Revocation
,
either
by
Will
or
Deed
,
and
he
makes
his
Will
in
order
to
Revoke
a
former
,
this
is
a
Writing
presently
,
but
't
is
not
a
Revocation
as
long
as
the
person
is
living
.
Therefore
a
Revocation
must
not
only
be
by
a
Writing
,
but
it
must
be
such
a
Writing
which
declares
the
intention
of
a
Man
that
it
should
be
so
,
which
is
not
done
by
this
Writing
.
Vpon
the
first
Argument
,
Iudgment
was
given
for
the
Defendant
,
that
the
second
Will
must
be
a
good
Will
in
all
Circumstances
to
Revoke
a
former
Will
.
THE
Plaintiff
declared
,
that
on
such
a
day
and
year
there
was
a
discourse
between
him
and
the
Defendant
concerning
the
Sale
of
two
Oxen
,
then
in
the
possession
of
the
Defendant
,
and
that
they
came
to
an
agreement
for
the
same
;
that
the
Defendant
did
then
sell
the
said
Oxen
to
the
Plaintiff
,
and
did
falsly
affirm
them
to
be
his
own
,
they
were
the
Oxen
of
another
Man
.
The
Plaintiff
had
a
Verdict
and
Serjeant
moved
in
arrest
of
Iudgment
,
that
the
Declaration
was
not
good
,
because
the
Plaintiff
hath
not
alledged
that
the
Defendant
did
affirm
the
Cattle
to
be
his
own
the
same
to
be
the
Goods
of
another
,
or
that
he
sold
them
to
the
Plaintiff
or
that
there
was
any
Warranty
,
for
this
Action
will
not
lie
upon
a
bare
Communication
.
But
notwithstanding
these
Exceptions
the
Plaintiff
had
his
Iudgment
;
it
might
have
been
good
upon
Demurrer
,
but
after
Verdict
't
is
well
enough
.
for
Lands
in
the
Iury
found
a
special
Verdict
,
the
substance
of
which
was
this
,
That
the
Lessor
of
the
Plaintiff
was
Heir
at
Law
to
one
his
Ancestor
,
who
being
seised
in
Fee
of
the
Lands
in
question
did
by
Will
bearing
date
the
day
of
in
the
year
devise
the
same
to
the
Defendant
,
which
he
subscribed
and
published
in
the
presence
of
and
they
likewise
attested
it
in
his
presence
.
They
find
that
on
the
day
of
he
made
another
Will
or
Codicil
in
Writing
,
reciting
that
he
had
made
a
former
Will
and
confirming
the
same
,
except
what
was
excepted
in
the
Codicil
,
and
declared
his
Will
to
be
,
that
the
Codicil
should
be
taken
and
adjudged
as
part
of
his
Will
.
They
find
that
he
published
this
Codicil
in
the
presence
likewise
of
one
of
which
was
Witness
to
the
first
Will
,
bue
the
other
was
a
new
Man
.
They
find
that
these
were
distinct
Writings
,
The
Question
was
,
whether
this
was
a
good
Will
attested
by
three
Witnesses
,
since
one
of
the
Witnesses
to
the
Codicil
was
likewise
a
Witness
to
the
Will
,
so
that
the
new
Man
(
if
any
)
must
make
the
third
Witness
.
argued
that
it
was
not
a
good
Will
:
The
Clause
of
the
Statute
is
,
But
here
are
not
three
subscribing
Witnesses
in
the
presence
of
the
Testator
,
so
that
the
first
Will
must
be
void
,
for
one
of
the
Witnesses
to
the
Codicil
did
never
see
that
Will
.
Besides
,
the
Codicil
is
not
the
same
thing
with
the
Will
;
't
is
a
confirmation
of
it
,
and
this
being
in
a
Case
wherein
an
Heir
is
to
be
disinherited
ought
not
to
have
a
favourable
Construction
.
Attorney
General
A
Will
may
be
contained
in
several
Writings
and
yet
but
one
entire
Will
.
'T
is
true
,
if
it
be
attested
only
by
two
Witnesses
't
is
not
good
;
but
if
the
Testator
call
in
a
third
person
,
and
he
attests
that
individual
Witing
in
his
presence
,
this
is
a
good
Will
though
the
Witnesses
were
not
all
present
together
and
at
the
same
time
,
for
there
is
the
Credit
of
three
persons
to
such
a
Will
,
which
is
according
to
the
intent
of
the
Statute
.
And
therefore
it
cannot
be
objected
that
these
are
distinct
Wills
,
or
that
the
Papers
are
not
annexed
,
for
no
such
thing
is
required
by
Law
;
for
a
Man
may
make
his
Will
in
several
Sheets
of
Paper
,
and
if
the
Witnesses
subscribe
the
last
Sheet
't
is
well
enough
,
or
if
he
doth
put
up
all
the
Sheets
in
a
blank
piece
of
Paper
and
the
Witnesses
attest
that
Sheet
't
is
a
good
Will
.
In
these
Cases
the
intent
of
the
Law-makers
must
and
ought
to
be
chiefly
regarded
,
and
for
what
reasons
and
purposes
such
Laws
were
made
,
and
what
Iudgments
have
been
given
in
parallel
Cases
.
If
a
Man
grants
a
Rent-Charge
to
his
youngest
Son
for
Life
,
and
afterwards
devises
that
he
shall
have
the
Rent
as
expressed
in
the
Grant
:
Now
though
the
Writing
was
no
part
of
the
Will
,
but
of
another
nature
,
yet
the
Will
referring
to
the
Deed
is
a
good
Devise
of
the
Rent-charge
within
the
Statute
of
Wills
.
But
in
this
Case
the
Codicil
is
part
of
the
Will
,
't
is
of
the
same
nature
,
and
being
made
the
end
of
the
Statute
is
performed
for
both
Will
and
Codicil
joined
together
make
a
good
Devise
;
the
first
was
a
Will
to
all
purposes
;
it
only
wanted
that
circumstance
of
a
third
Witness
to
attest
it
,
which
the
Testator
compleated
after
by
calling
in
of
a
third
person
for
that
purpose
.
If
a
Man
makes
a
Will
in
several
pieces
of
Paper
and
there
are
three
Witnesses
to
the
last
Paper
,
and
none
of
them
did
ever
see
the
first
,
this
is
not
a
good
Will
.
Afterwards
in
Iudgment
was
given
that
this
was
not
a
good
Will
.
the
Elder
and
his
Son
covenant
with
to
sell
and
convey
Land
to
him
free
from
all
Incumbrances
,
and
that
they
will
levy
a
Fine
,
and
deliver
up
Writings
'T
is
agreed
between
the
Parties
that
the
said
shall
pay
to
the
younger
so
much
Mony
The
Action
is
brought
in
the
name
of
both
,
and
upon
a
Demurrer
to
the
Declaration
it
was
held
ill
,
for
the
Duty
is
vested
in
the
younger
,
and
he
only
ought
to
have
brought
this
Action
.
Iudgment
for
the
Defendant
DEBT
upon
a
Bond
conditioned
for
performance
of
an
Award
.
pleaded
,
the
Plaintiff
replied
,
and
shewed
an
Award
that
the
Defendant
should
pay
to
the
Plaintiff
presently
,
and
give
Bond
for
the
payment
of
more
on
the
and
that
this
should
be
for
and
towards
the
Charges
and
Expences
in
and
about
certain
differences
then
depending
between
the
Parties
,
and
that
they
should
And
upon
a
Demurrer
it
was
argued
to
be
a
void
Award
,
because
mutual
Releases
were
then
to
be
given
which
would
discharge
the
Bond
payable
in
But
the
Court
held
it
to
be
good
,
for
the
Releases
shall
discharge
such
Matters
only
which
were
depending
at
the
time
of
the
Submission
.
THere
was
a
Parish
Church
and
a
Chappel
of
Ease
in
the
Parish
of
the
Defendant
was
taxed
towards
the
Repairs
of
the
Church
,
and
a
Livel
was
brought
against
him
for
the
refusing
of
the
payment
of
that
Tax
.
He
now
suggests
that
there
was
a
Chappel
of
Ease
in
the
same
Parish
,
to
which
the
Inhabitants
do
go
,
and
that
they
have
always
repaired
that
Chappel
,
and
so
prayed
a
Prohibition
.
But
Serjeant
moved
for
a
Consultation
,
because
the
Parishioners
of
common
right
ought
to
repair
the
Church
;
and
though
there
is
a
Chappel
of
Ease
in
the
same
Parish
,
yet
that
ought
not
to
excuse
them
from
repairing
of
the
Mother
Church
.
He
produced
an
that
there
had
been
no
Divine
Service
there
for
forty
years
past
,
nor
Burials
or
Baptism
whereupon
a
Prohibition
was
denied
.
Gentleman
was
convicted
upon
his
own
Confession
for
High
Treason
in
the
Rebellion
of
the
Duke
of
and
executed
and
it
was
moved
that
his
Attainder
might
be
reversed
.
The
Iudges
were
attended
with
Books
,
and
the
Exceptions
taken
were
,
There
was
no
Arraignment
or
demanding
of
Iudgment
.
There
was
Process
of
which
ought
not
to
be
in
Treason
,
but
a
Because
after
the
Confession
the
Judgment
followed
,
and
it
doth
not
appear
that
the
Party
was
asked
what
he
could
say
why
Sentence
of
Death
should
not
pass
upon
him
;
for
possibly
he
might
have
pleaded
a
Pardon
.
For
these
Reasons
the
Attainder
was
reversed
.
IT
was
moved
for
a
to
reffore
him
to
a
Fellowship
of
Colledge
in
being
a
Member
of
a
Lay
Corporation
,
and
having
a
Freehold
in
it
.
The
like
had
been
granted
to
restore
Dr.
to
the
place
of
one
of
the
Fellows
of
the
Colledge
of
Physitians
in
which
is
a
Lay
Corporation
But
it
was
denied
by
the
Court
,
for
the
Visitor
is
the
proper
Iudge
;
and
when
a
Man
takes
a
Fellowship
he
submits
to
the
Rules
of
the
Colledge
and
to
the
private
Laws
of
the
Founder
.
It
was
denyed
by
my
Lord
in
Dr.
because
in
all
Lay
Corporations
the
Founder
and
his
Heirs
are
Visitors
,
and
in
all
Ecclesiastical
Corporations
the
Bishop
of
the
Diocess
is
the
proper
Visitor
,
who
is
and
from
whose
Sentence
there
is
no
Appeal
to
this
Court
especially
in
the
case
of
a
Fellowship
of
a
Colledge
,
which
is
a
thing
of
private
design
,
and
not
at
all
concerning
the
publick
.
Jacobi
Westm
'
a
Rapier
the
Navel
The
Defendant
having
prayed
Iudgment
The
Plaintiff
demurred
,
and
the
Appellee
joyned
in
Demurrer
.
An
Appeal
of
Murder
was
brought
against
of
the
Parish
of
St.
in
the
County
of
Gent.
for
that
he
on
the
day
of
in
the
third
year
of
King
did
run
the
deceased
into
the
left
part
of
his
Belly
with
a
Rapier
,
and
that
he
died
of
that
wound
three
days
afterwards
.
The
Defendant
demands
of
the
Return
,
and
pleads
that
there
is
a
Parish
known
by
the
name
of
the
Parish
of
St.
but
no
such
place
as
the
Parish
of
St.
And
upon
a
Demurrer
it
was
argued
that
this
Plea
was
not
good
,
for
it
being
in
Abatement
the
Appellee
ought
to
have
pleaded
over
to
the
Murder
,
so
it
was
adjudged
in
the
Case
of
the
Pleadings
of
which
Case
are
at
large
in
my
Lord
He
ought
to
have
pleaded
in
person
,
and
not
by
Attorney
;
the
Statute
of
is
plain
in
this
Point
If
the
Plea
is
in
Abatement
,
and
the
Party
doth
not
answer
over
to
the
Murder
,
yet
that
doth
not
him
of
his
Plea
,
but
the
Appellant
ought
to
have
prayed
Iudgment
.
'T
is
a
Question
whether
he
ought
to
plead
over
to
the
Felony
or
not
,
for
the
Presidents
are
both
ways
;
there
is
no
Iudgment
entred
.
THere
was
a
Libel
brought
in
the
Spiritual
Court
for
a
The
Defendant
suggests
that
by
the
Statute
of
no
Mortuary
ought
to
be
paid
,
but
in
such
places
where
it
had
been
usually
paid
before
the
making
of
that
Statute
,
and
that
there
was
no
in
this
place
to
pay
a
Mortuary
,
and
it
was
thereupon
moved
for
a
Prohibition
for
Mortuaries
are
not
due
by
Law
,
but
by
particular
Custom
of
places
.
'T
is
true
a
Prohibition
was
denied
in
the
Case
of
but
it
was
because
't
was
admitted
that
there
a
Mortuary
was
due
by
but
they
differed
in
the
person
to
whom
it
ought
to
be
paid
.
Prohibitions
have
been
granted
and
denied
upon
such
Suggestions
,
therefore
the
Defendant
was
ordered
to
take
a
Declaration
in
a
Prohibition
as
to
the
Mortuary
,
and
to
try
the
Custom
at
Law
.
IN
Ejectment
for
Lands
in
tried
at
the
Bar
,
the
Case
was
thus
,
was
seised
in
Fee
of
the
Manor
of
in
the
said
County
,
and
being
so
seised
made
a
Settlement
thereof
,
by
Lease
and
Release
to
the
use
of
himself
for
Life
,
without
impeachment
of
Waste
,
then
to
the
Trustees
for
seven
years
,
to
raise
Portions
for
Daughters
,
then
to
and
the
Heirs
Male
of
his
Body
,
and
if
he
dye
without
Issue
,
then
to
his
Daughter
for
Life
,
with
Remainders
over
.
In
which
Settlement
there
was
this
Proviso
,
William
Venables
And
another
Proviso
to
this
purpose
.
William
Venables
Lives
or
The
Defendants
Title
was
a
Lease
for
years
,
made
by
the
said
to
one
if
three
Lives
should
so
long
live
.
And
the
Question
was
,
whether
that
Lease
was
pursuant
to
the
power
in
the
last
Proviso
?
It
was
objected
that
it
was
not
,
for
it
ought
to
be
a
Lease
for
and
not
years
,
determinable
for
three
Lives
.
But
the
Plaintiff
was
Non-Suit
AN
Order
made
at
the
Quarter-Sessions
of
was
removed
hither
,
confirming
another
made
by
the
Iustices
there
,
for
placing
of
a
poor
Boy
to
be
an
and
it
was
moved
that
it
might
be
quashed
.
argued
that
the
Iustices
had
no
power
given
them
by
the
Law
,
to
compel
a
Man
to
take
such
an
Apprentice
,
and
this
will
depend
upon
the
construction
of
such
Statutes
which
relate
to
this
matter
.
The
first
is
that
of
Queen
which
enacts
that
for
the
better
advancing
of
Husbandry
and
Tillage
,
and
to
the
intent
such
who
are
fit
to
be
made
Apprentices
to
Husbandry
may
be
bound
thereunto
,
that
every
person
being
an
Housholder
,
and
having
or
using
half
a
Plough
Land
at
the
least
in
Till
age
,
may
take
any
to
be
an
Apprentice
above
and
under
until
the
Party
be
of
the
Age
of
years
,
the
said
Reteiner
and
taking
of
an
Apprentice
to
be
by
Indenture
.
Now
before
the
making
of
this
Statute
,
the
practice
of
putting
out
poor
Children
was
only
in
Cities
and
great
Towns
,
to
particular
Trades
and
Employments
.
The
next
Statute
is
by
which
power
is
given
to
the
to
raise
weekly
or
otherwise
by
Taxation
of
every
Inhabitant
,
such
competent
Sum
or
Sums
of
Mony
as
they
shall
think
fit
,
for
relief
of
the
Poor
,
and
putting
out
of
Children
to
Apprentice
.
And
then
in
the
fifth
Paragraph
power
is
given
to
them
by
the
Assent
of
two
Iustices
of
Peace
,
to
bind
poor
Children
&c.
which
words
were
the
foundation
for
the
making
of
this
Order
.
But
the
construction
thereof
can
be
no
otherwise
than
,
Whereas
before
the
making
of
this
Act
poor
Children
were
bound
Apprentices
to
Tillage
,
now
the
Church-wardens
may
to
bind
them
out
to
for
if
they
could
compel
Men
to
take
them
,
what
need
was
there
of
raising
Mony
to
place
them
out
?
This
must
be
the
natural
construction
of
that
Law
,
which
appears
yet
more
plain
,
by
the
words
of
a
subsequent
Statute
,
which
continues
that
of
the
with
this
addition
,
that
all
persons
to
whom
the
Overseers
of
the
Poor
shall
(
according
to
that
Act
)
bind
any
Children
to
Apprentice
,
may
take
,
receive
and
keep
them
as
Apprentices
.
'T
is
true
,
the
general
practice
of
putting
out
poor
Children
seems
to
warrant
this
Order
;
but
this
hath
been
occasioned
upon
a
Mistake
in
Mr.
's
Book
who
Reported
the
Resolution
of
the
Iudges
in
to
be
,
That
every
Man
who
by
his
calling
,
profession
,
or
manner
of
living
,
and
who
entertaineth
and
must
use
Servants
of
the
like
quality
,
such
must
also
take
Apprentices
.
By
this
Resolution
the
Iustices
of
Peace
have
been
governed
ever
since
.
But
Iustice
would
often
say
,
that
those
were
not
the
Resolutions
of
the
Iudges
,
as
Reported
by
Mr.
and
therefore
the
Book
was
mistaken
.
The
Order
it self
doth
not
mention
that
the
party
to
whom
this
poor
Boy
was
bound
Apprentice
,
did
for
so
it
ought
to
be
,
otherwise
the
Overseers
of
the
Poor
may
bind
him
to
a
Merchant
or
to
an
Attorny
,
which
he
called
a
Free
quarter
;
for
by
such
means
Diseases
may
be
brought
into
a
Family
,
and
a
Man
hath
no
security
either
for
his
Goods
or
Mony
.
This
was
the
Opinion
of
Iustice
and
it
seems
to
be
very
natural
,
and
therefore
the
chief
reason
why
power
was
given
by
the
Statute
to
the
Overseers
to
raise
mony
,
was
that
they
might
place
poor
Children
to
such
who
were
willing
to
take
them
for
otherwise
they
might
compel
a
Man
to
receive
his
Enemy
into
his
Service
.
He
relied
on
the
Case
of
the
which
was
an
Order
of
the
like
nature
moved
to
be
quashed
:
And
Iustice
said
in
that
Case
,
that
all
the
Iudges
of
were
of
Opinion
that
the
Iustices
had
not
such
a
Power
,
and
therefore
that
Order
was
quashed
.
'T
is
plain
that
by
the
Statute
of
the
the
Iustices
may
place
out
poor
Children
where
they
see
it
convenient
,
and
so
the
constant
practice
hath
been
;
so
is
the
Resolution
of
the
Iudges
in
which
was
brought
in
by
the
Lord
Chief
Iustice
but
denied
so
to
be
by
Iustice
for
no
other
reason
but
because
Iustice
did
not
concur
with
them
's
Case
this
matter
was
stirred
again
,
but
there
hath
been
nothing
done
pursuant
to
that
Opinion
.
Since
then
the
Iustices
have
a
power
to
place
out
poor
Children
.
'T
is
no
Objection
to
say
that
there
may
be
an
inconvenience
in
the
exercise
of
that
power
,
by
placing
out
Children
to
improper
persons
;
for
if
such
things
are
done
,
the
Party
hath
a
proper
remedy
by
way
of
Appeal
to
the
Sessions
.
Three
Iustices
were
of
Opinion
that
the
Iustices
of
Peace
had
such
a
Power
,
and
therefore
they
were
for
confirming
the
Order
;
and
Iustice
said
it
was
so
resolved
in
the
Case
of
the
King
and
in
the
Reign
of
King
the
first
being
then
Chief
Iustice
,
tho'
the
Iudges
in
's
Case
were
of
another
Opinion
.
The
Chief
Iustice
was
now
likewise
of
a
different
Opinion
,
for
the
Statute
means
something
when
it
says
that
a
Stock
shall
be
raised
by
the
Taxation
of
every
Inhabitant
,
for
putting
out
of
Children
Apprentice
.
There
are
no
compulsory
words
in
the
Statute
for
that
purpose
,
nor
any
which
oblige
a
Master
to
take
an
Apprentice
,
and
if
not
,
the
Iustices
have
not
power
to
compel
a
Man
to
take
a
poor
Boy
,
for
possibly
such
may
be
a
Thief
or
Spy
in
the
Family
.
But
this
Order
was
quashed
for
an
apparent
fault
,
which
was
,
that
the
Statute
has
entrusted
the
Churchwardens
and
Overseers
of
the
Poor
by
and
with
the
Approbation
of
two
Iustices
to
bind
Apprentices
,
And
the
Churchwardens
are
not
mentioned
in
this
Order
.
DEBT
upon
a
Bond
for
performance
of
an
Award
:
pleaded
,
the
Plaintiff
replyed
and
shewed
an
Award
made
,
which
amongst
other
things
was
,
that
the
Defendant
such
as
the
Plaintiff
should
approve
in
the
Sum
of
to
be
paid
to
him
at
such
a
time
,
and
that
they
should
seal
mutual
Releases
,
and
assigned
a
Breach
in
not
giving
of
this
Bond.
There
was
a
Verdict
for
the
Plaintiff
,
and
now
Serjeant
moved
in
arrest
of
Iudgment
,
that
this
was
a
void
Award
,
because
't
is
that
the
Defendant
shall
be
bound
and
then
Releases
to
be
given
;
now
the
Sureties
are
Strangers
to
the
Submission
,
and
therefore
the
Defendant
is
not
bound
to
procure
them
.
He
relied
upon
the
Case
of
which
was
an
Award
that
all
Controversies
,
should
cease
,
and
that
one
of
the
Parties
should
pay
to
the
other
and
that
thereupon
he
should
&c.
this
was
held
to
be
void
,
because
it
was
to
bind
such
persons
who
were
not
Parties
to
the
Submission
.
That
Cause
doth
not
come
up
to
this
at
the
Barr
,
because
by
this
Award
the
Party
was
to
sign
a
general
Release
whether
the
Defendant
paid
the
Mony
or
not
.
But
the
Court
was
of
Opinion
,
that
the
Award
was
void
,
because
it
appointed
the
Party
to
enter
into
a
Bond
with
and
Releases
then
to
be
mutually
given
.
Now
if
the
Plaintiff
doth
not
like
the
Security
given
then
he
is
not
to
seal
a
Release
,
and
so
't
is
but
an
Award
of
one
side
.
The
Cryer
made
Proclamation
and
then
called
the
Recognitors
between
Demandant
,
and
Tenant
,
who
were
all
at
the
Bar
,
and
severally
answered
as
they
were
called
.
Then
Mr.
arraigned
the
Assize
in
but
the
Count
being
not
in
Parchment
upon
Record
the
Recognitors
were
for
this
time
discharged
and
ordered
to
appear
again
the
next
day
.
But
the
Council
for
the
Tenant
relied
on
the
authority
in
that
the
Title
ought
to
be
set
forth
in
the
Count
,
which
was
not
done
now
,
and
therefore
the
Demandant
ought
to
be
nonsuited
.
But
the
Writ
being
returnable
that
day
,
was
adjourned
to
the
Morrow
afterward
;
and
if
the
Demandant
did
not
then
make
a
Title
he
must
be
nonsuited
.
The
next
day
the
Iury
appeared
:
Then
the
Cryer
called
the
Demandant
,
and
then
the
Tenants
,
and
afterwards
the
Recognitors
;
and
the
Assize
being
arraigned
again
the
Demandant
set
forth
his
Title
.
Then
Sir
of
Council
for
Mr.
one
of
the
Tenants
appeared
after
this
manner
,
Then
the
other
Tenants
were
called
again
three
times
,
and
they
not
appearing
Process
was
prayed
against
them
.
BAil
was
put
in
to
an
Action
brought
by
the
Plaintiff
,
and
before
he
declared
,
the
Defendant
obtained
an
Injunction
to
stay
Proceedings
at
Law
,
which
was
not
dissolved
for
several
Terms
afterwards
.
Then
the
Injunction
was
dissolved
,
and
the
Plaintiff
delivered
his
Declaration
,
and
had
Iudgment
by
default
;
and
now
he
brought
a
against
the
Bail
,
who
pleaded
that
no
Declaration
was
delivered
or
filed
against
the
Principal
within
two
Terms
after
the
Action
commenced
and
the
Bail
entred
,
and
upon
a
Demurrer
the
Plaintiff
had
Iudgment
against
them
,
for
the
Bail
are
liable
;
so
as
the
Principal
in
the
Action
declare
soon
after
the
Injunction
dissolved
;
and
it
s
no
fault
in
the
Plaintiff
that
he
did
not
declare
sooner
,
for
if
he
had
,
he
would
have
been
in
contempt
of
the
Court
of
for
a
Breach
of
the
Injunction
.
Writ
of
Error
was
brought
to
reverse
a
Recovery
suffered
in
the
grand
Sessions
of
Scire
Fac.
The
Question
now
was
,
whether
there
ought
to
be
a
It
was
said
that
t
is
discretionary
in
the
Court
,
and
that
the
first
Case
of
this
nature
was
in
my
Lord
where
a
Writ
of
Error
was
brought
to
reverse
a
Fine
levyed
in
the
County
Palatine
of
and
a
was
brought
against
the
Heir
,
but
not
against
the
Tertenants
.
But
the
Heir
in
this
Case
is
an
Infant
,
so
that
if
he
be
admitted
to
be
a
Defendant
he
ought
not
to
appear
during
his
Minority
,
and
there
is
no
remedy
till
his
full
Age.
'T
is
not
necessary
in
point
of
Law
,
but
it
seems
to
be
the
course
of
the
Court
,
and
that
must
be
followed
;
and
't
is
reasonable
it
should
be
so
,
because
the
Errors
upon
a
Recovery
should
not
be
examined
before
all
the
Parties
are
in
Court
,
therefore
there
should
be
a
against
the
Heir
and
the
Tertenants
.
which
the
Plaintiff
had
laid
to
his
Damage
of
The
Defendant
demurred
to
the
Declaration
,
and
for
cause
shewed
that
hath
not
cognizance
,
either
by
the
Common
Law
,
or
by
the
Statute
of
to
hold
Plea
in
such
an
Action
,
where
the
Damages
are
laid
to
be
under
But
the
Court
were
of
another
Opinion
,
That
an
Action
of
Trespass
will
lie
here
,
let
the
Damage
be
what
it
will
.
So
the
Plaintiff
had
Iugment
.
TRover
for
a
Horse
the
Defendant
pleaded
Not
Guilty
,
and
a
special
Verdict
was
found
,
was
possessed
of
this
Horse
,
who
on
the
day
of
in
the
first
year
of
King
put
him
to
Grass
to
the
Defendant
,
who
kept
him
till
the
first
day
of
died
Intestate
,
and
before
Administration
was
granted
,
the
Plaintiff
desired
the
Defendant
to
Bury
the
said
and
that
he
would
see
him
satisfied
for
his
Expences
,
and
accordingly
the
Defendant
did
Bury
him
.
Then
the
Plaintiff
gave
this
Horse
to
the
Defendant
in
part
of
satisfaction
for
the
Charges
of
the
Funeral
,
and
a
Note
under
his
Hand
to
pay
him
The
Plaintiff
afterwards
took
out
Administration
,
and
brought
his
Action
against
the
Defendant
for
this
Horse
;
and
whether
this
was
a
conversion
or
not
,
was
the
Question
.
held
that
it
was
not
,
but
the
Chief
Iustice
was
of
another
Opinion
.
upon
a
Iudgment
of
Sci.
Fa.
brought
by
the
Plaintiffs
as
surviving
Executors
of
against
the
Defendant
and
his
Wife
,
as
Executrix
of
setting
forth
,
That
Sir
had
recover'd
a
Iudgment
of
survived
,
who
made
his
Will
and
appointed
to
be
his
Executors
,
that
he
died
,
the
Debt
and
Damages
not
being
satisfied
,
that
they
the
said
proved
the
Will
,
that
died
,
and
that
made
his
Will
and
appointed
his
Daughter
now
the
Wife
of
to
be
sole
Executrix
,
and
soon
after
departed
this
Life
,
that
Will
,
and
that
the
Debt
was
not
yet
paid
.
The
Defendant
and
his
Wife
pleaded
a
Release
from
one
of
the
Plaintiffs
,
by
which
he
acknowledged
to
have
received
of
the
said
and
his
Wife
,
as
Exetutrix
of
the
last
Will
and
Testament
of
the
Sum
of
being
a
Legacy
given
to
him
by
and
then
in
general
words
he
released
the
said
and
his
Wife
,
of
the
Legacy
,
and
of
all
Actions
,
Suits
and
Demands
whatsoever
which
or
might
have
against
the
Defendants
and
his
Wife
,
as
Executrix
of
or
may
or
can
have
for
any
matter
or
thing
whatsoever
.
To
this
Plea
the
Plaintiff
demurred
,
and
the
Question
was
,
whether
the
Release
is
a
good
Bar
or
not
?
It
was
argued
to
be
no
Bar
,
for
it
being
given
upon
the
receipt
of
the
Legacy
,
is
tied
up
to
that
only
,
and
shall
not
be
taken
to
release
any
other
thing
.
If
a
Man
should
receive
and
give
a
Receipt
for
it
,
and
doth
thereby
acquit
and
release
the
person
of
all
Actions
,
Debts
,
Duties
and
Demands
,
nothing
is
released
but
the
because
the
last
words
must
be
limited
to
those
foregoing
.
'T
is
no
new
thing
in
the
Law
for
general
words
to
be
restrained
by
those
which
follow
;
as
for
instance
,
if
a
Release
be
of
all
Errors
,
Actions
,
Suits
,
and
Writs
of
Error
whatsoever
,
it
hath
been
held
that
an
Action
of
Debt
upon
a
Bond
was
not
released
,
but
only
Writs
of
Error
.
And
this
seems
to
be
the
intent
of
the
Parties
here
,
that
nothing
but
the
Legacies
should
be
released
;
and
therefore
those
general
words
which
follow
,
must
be
confined
to
the
true
meaning
and
intention
of
him
who
gave
the
Release
.
So
't
is
if
a
Man
promise
to
pay
to
another
during
Life
,
a
Release
of
all
Quarrels
,
Controversies
and
Demands
which
he
had
or
may
have
will
not
discharge
this
Annuity
,
because
the
Execution
of
the
Promise
was
not
to
be
'till
the
Rent
,
should
be
due
.
So
likewise
a
Release
of
all
Demands
will
not
discharge
a
growing
Rent
.
If
this
should
be
a
good
Release
,
it
discharges
only
such
Actions
which
he
hath
in
his
own
Right
;
for
by
the
words
all
Actions
which
he
had
are
released
now
if
an
Executor
grant
the
Goods
which
he
hath
as
Executor
do
not
pass
.
It
was
argued
that
this
is
a
good
Bar
,
for
by
the
first
words
the
Legacy
is
released
,
then
the
subsequent
words
,
all
Actions
,
Suits
and
demands
whatsoever
,
which
he
had
against
the
Defendant
as
,
Executor
of
must
mean
something
'T
is
true
,
where
general
words
are
at
the
beginning
of
a
Release
,
and
particular
words
follow
,
if
the
general
words
agree
with
those
which
are
particular
,
the
Deed
shall
be
construed
according
to
the
special
words
:
But
where
there
are
such
words
at
first
,
and
the
conclusion
is
with
general
words
,
as
't
is
in
this
Case
,
both
shall
stand
;
for
the
Rule
is
,
These
words
do
also
Release
not
only
such
Actions
which
he
had
in
his
own
Right
,
but
also
as
Executor
to
Mr.
If
a
Man
hath
a
Lease
in
right
of
his
Wife
,
as
Executrix
to
her
former
Husband
,
and
he
grants
all
his
Right
and
Title
therein
;
by
this
Grant
the
Right
which
he
had
by
his
Wife
doth
pass
,
for
the
word
doth
imply
a
propriety
in
possession
.
Iudgment
was
given
for
the
Plaintiff
.
If
an
Executor
hath
Goods
of
the
Testators
,
and
also
other
Goods
in
his
own
Right
,
and
then
grants
in
strictness
the
Goods
which
he
hath
as
Executor
do
not
pass
,
because
they
are
not
but
so
called
because
of
the
Possession
which
he
hath
,
and
therefore
it
must
be
a
great
strein
to
make
general
words
which
are
properly
applicable
to
things
which
a
Man
hath
in
his
own
Right
,
to
extend
to
things
which
he
hath
as
Executor
.
It
was
never
the
intent
of
the
Party
to
release
more
than
what
he
had
in
his
own
Right
,
and
that
appears
by
the
Recital
of
the
Legacy
of
and
therefore
the
words
which
follow
must
have
a
construction
according
to
the
intent
of
at
the
time
of
the
making
the
Release
,
and
shall
be
tied
up
to
the
foregoing
words
,
and
then
nothing
will
be
discharged
but
the
Legacy
.
As
if
a
Lease
for
years
be
made
,
and
the
Lessor
enters
into
a
Bond
,
that
he
will
suffer
the
Lessee
quietly
to
enjoy
during
the
Term
,
without
trouble
of
the
Lessor
,
or
any
other
person
;
if
an
Entry
should
be
made
upon
the
Lessee
,
without
the
procurement
or
knowledge
of
the
Lessor
,
the
Condition
is
not
broken
,
for
the
last
words
are
tied
up
to
the
word
If
the
Legacy
had
not
been
released
by
particular
words
,
it
would
not
have
been
discharged
by
a
Release
of
all
Actions
and
Demands
whatsoever
;
and
therefore
there
would
be
a
great
inconvenience
if
these
general
words
should
be
construed
to
Release
any
thing
besides
this
Legacy
;
for
suppose
there
are
two
Executors
and
one
refuseth
to
Administer
,
but
meeting
with
a
Debtor
of
the
Testator
,
gives
him
a
Release
of
all
Actions
;
will
this
amount
to
an
acceptance
of
the
Administration
?
Certainly
it
will
not
.
The
words
in
this
Case
are
not
of
that
extent
as
to
Release
Actions
as
an
Execuror
;
for
't
is
a
Release
which
goeth
to
the
right
.
'T
is
like
the
Case
where
one
of
the
Avowants
released
the
Plaintiff
after
the
taking
of
the
Cattel
,
which
was
adjudged
void
upon
a
Demurrer
,
because
he
had
not
then
any
Suit
or
Demand
against
the
Plaintiff
,
but
had
distreined
the
Beasts
as
Bayliff
,
and
in
right
of
another
.
cited
a
Case
adjudged
in
in
the
year
it
was
between
The
Plaintiff
released
all
which
he
had
in
his
own
Right
,
there
was
a
Bond
in
which
his
Name
was
used
in
Trust
for
another
;
and
afterwards
he
brought
an
Action
of
Debt
upon
that
Bond
,
to
which
the
Release
was
pleaded
.
The
Plaintiff
replied
that
the
Release
was
only
of
all
such
Actions
which
he
had
in
his
own
right
,
and
not
such
which
he
had
in
the
right
of
another
;
upon
this
they
were
at
Issue
,
and
the
Plaintiff
had
a
Verdict
,
and
Mr.
moved
in
Arrest
of
Iudgment
,
that
this
Bond
must
be
in
his
own
Right
:
But
the
Court
affirmed
the
Iudgment
.
AN
Action
on
the
Case
was
brought
for
these
words
,
It
was
made
a
Question
whether
these
words
were
actionable
,
there
being
no
precedent
discourse
laid
in
the
Declaration
,
either
of
the
Colonel
or
his
Cupboard-Cloath
.
But
the
Court
held
the
words
actionable
,
for
't
is
a
charge
of
Felony
,
and
if
such
words
,
as
now
laid
in
this
Declaration
,
are
not
actionable
,
any
person
may
be
scandalized
;
for
't
is
and
must
be
actionable
to
say
of
a
Man
,
that
he
stole
my
Lord's
Horses
,
or
the
Parson's
Sheep
,
tho'
it
doth
not
appear
to
what
Lord
or
Parson
they
did
belong
.
THE
Defendant
was
convicted
before
a
Iustice
of
the
Peace
,
upon
the
Statute
of
for
keeping
of
a
and
upon
proof
it
did
appear
that
he
had
not
The
Record
of
the
Conviction
was
removed
into
and
this
Exception
was
taken
to
it
,
but
doth
not
say
for
it
may
be
that
he
had
one
hundred
pound
at
the
time
when
he
kept
a
Gun
,
but
not
when
he
was
Convicted
.
It
was
answered
that
the
words
shall
relate
to
all
times
past
,
and
is
as
much
as
to
say
and
the
conclusion
being
must
explain
such
words
which
seem
to
be
doubtful
.
This
was
compared
to
the
Case
where
Debt
was
brought
upon
the
Statute
of
for
taking
away
of
Goods
before
the
Plaintiff
was
convicted
of
the
Felony
laid
to
his
charge
,
he
being
only
committed
upon
suspicion
;
now
though
he
did
not
alledge
that
the
Goods
were
taken
,
for
this
cause
it
shall
be
intended
they
were
so
taken
when
no
other
cause
is
shewed
.
This
is
a
conviction
before
a
Iustice
of
the
Peace
,
and
therefore
the
time
when
the
Offence
was
committed
should
be
certainly
alledged
,
that
the
Defendant
had
not
for
which
reason
it
was
quashed
.
THE
Plaintiff
brought
an
Action
for
for
so
much
Mony
had
and
received
of
him
by
the
Defendant
.
The
Defendant
pleaded
an
Attainder
of
High
Treason
in
Abatement
,
and
therefore
ought
not
to
answer
the
Declaration
.
The
Plaintiff
replied
,
that
after
he
was
Attainted
,
and
before
this
Action
brought
he
was
pardoned
,
and
concludes
thus
,
The
Defendant
demurs
,
and
for
cause
shewed
,
that
the
Replication
is
not
well
concluded
,
for
ought
to
be
left
out
,
and
of
that
Opinion
was
the
Court
,
and
therefore
a
Rule
was
made
that
he
might
discontinue
this
Action
without
Costs
.
THE
Plaintiff
brought
a
upon
a
Iudgment
.
The
Case
was
thus
,
recovered
in
Dower
against
Sir
in
which
Action
Damages
are
given
by
the
brought
a
Writ
of
Error
in
and
the
Iudgment
was
affirmed
Then
the
Plaintiff
in
Dower
brought
a
Writ
of
Enquiry
for
the
Damages
,
and
married
Mr.
and
died
before
that
Writ
was
executed
.
takes
out
Letters
of
Administration
to
his
Wife
,
and
brought
a
upon
the
Iudgment
,
and
the
question
was
whether
it
would
lie
.
This
depended
upon
the
construction
of
the
Statute
of
King
which
enacts
,
That
in
all
personal
Actions
,
and
real
and
mixt
,
the
death
of
either
party
between
the
Verdict
and
the
Iudgment
shall
not
hereafter
be
alledged
for
Error
,
so
as
such
Iudgment
be
entred
within
two
Terms
after
such
Verdict
.
insisted
that
this
was
a
judicial
Writ
,
and
that
the
Administrator
had
a
right
to
it
,
though
the
Wife
died
before
the
Profits
were
ascertained
by
the
Writ
of
Enquiry
;
't
is
no
more
than
a
plain
upon
a
Iudgment
,
which
an
Executor
may
have
,
and
which
was
never
yet
denied
,
though
this
seems
to
be
a
Case
of
the
first
Impression
.
The
Council
on
the
other
side
argued
,
that
't
is
true
,
an
Executor
may
have
a
upon
a
Iudgment
recovered
in
the
life
of
the
Testator
by
reason
only
of
such
Recovery
,
but
this
is
brought
for
what
never
was
recovered
,
because
the
Wife
died
before
any
thing
was
vested
in
her
;
for
the
Iudgment
will
stand
so
as
to
effect
the
Lands
,
but
not
for
the
Damages
.
When
a
Statute
which
gives
a
remedy
for
mean
Profits
is
expounded
,
it
ought
to
be
according
to
the
Common
Law
.
Now
where
entire
Damages
are
to
be
recovered
,
and
the
Demandant
dies
before
a
Writ
of
Enquiry
executed
,
the
Executor
cannot
have
any
remedy
by
a
upon
that
Iudgment
,
because
Damages
are
no
duty
till
they
are
assessed
.
THE
Plaintiff
and
his
Wife
declared
upon
a
Prohibition
setting
forth
,
on
the
made
his
Will
,
by
which
he
bequeathed
to
to
be
paid
to
her
within
two
years
after
his
decease
,
and
that
he
made
the
Wife
of
the
Plaintiff
Executrix
,
and
dyed
;
that
the
said
Executrix
whilst
sole
and
unmarried
,
paid
the
said
Legacy
to
who
is
since
dead
;
that
the
Husband
of
the
said
did
after
her
death
demand
this
Legacy
in
the
Consistory
Court
of
the
Bishop
of
that
the
Plaintiff
pleaded
payment
,
and
offered
to
prove
it
by
which
Proof
that
Court
refused
though
the
Witness
was
a
person
without
Exception
,
and
thereupon
Sentence
was
given
there
against
the
Plaintiff
,
which
Sentence
was
now
pleaded
,
and
upon
Demurrer
to
the
Plea
,
The
Question
was
,
whether
upon
the
whole
matter
the
Defendant
should
have
a
Consultation
,
or
whether
a
Prohibition
should
be
granted
,
because
the
proof
by
one
Witness
was
denied
by
that
Court.
It
was
argued
that
the
Defendant
should
not
have
a
Consultation
,
because
Matters
Testamentary
ought
to
have
no
more
favour
than
things
relating
to
Tythes
,
in
which
Cases
the
Proof
by
one
Witness
hath
been
always
held
good
.
So
't
is
in
a
Release
to
discharge
a
Debt
,
which
is
well
proved
by
a
single
Testimony
,
and
it
would
be
very
inconvenient
if
it
should
be
otherwise
;
for
Feoffments
and
Leases
may
come
in
question
,
which
must
not
be
rejected
,
because
proved
by
one
Witness
.
comes
up
to
this
Case
,
upon
the
Suggestion
whereof
Prohibitions
are
never
denied
,
and
the
chief
reason
is
,
because
the
Spiritual
Court
will
not
allow
a
to
be
any
discharge
of
Tythes
of
Kind
.
The
Courts
of
Equity
in
give
Relief
upon
a
Proof
by
one
Witness
,
so
likewise
do
the
Courts
of
the
Common
Law
if
the
Witness
is
a
good
and
credible
person
.
'T
is
true
,
a
Prohibition
shall
not
go
upon
a
Suggestion
that
the
Ecclesiastical
Court
will
not
receive
the
Testimony
of
a
single
Witness
:
If
the
Question
is
,
upon
Proof
of
a
Legacy
devised
,
or
Marriage
or
not
,
or
any
other
thing
,
which
originally
doth
lie
in
the
Cognizance
of
that
Court
;
but
payment
or
not
payment
is
a
matter
of
Fact
triable
at
the
Law
,
and
not
determinable
there
;
if
therefore
they
deny
to
take
the
Evidence
of
a
single
Witness
a
Prohibition
ought
to
go
.
The
Sentence
is
no
obstacle
in
this
Case
,
because
the
Plaintiff
had
no
Right
to
a
Prohibition
until
the
Testimony
of
his
Witness
was
denied
,
and
Sentence
thereupon
given
;
and
this
is
agreeable
to
what
hath
been
often
done
in
cases
of
like
nature
.
As
for
instance
Prohibitions
have
been
granted
where
the
Proof
of
a
Release
of
a
Legacy
by
one
Witness
was
denyed
.
So
where
the
Proof
of
payment
of
Cythes
for
Pidgeons
was
denied
upon
the
like
Testimony
.
So
where
a
Suit
was
for
Subtraction
of
Cythes
,
and
the
Defendant
pleaded
that
he
set
them
out
,
and
offered
to
prove
it
by
by
one
Witness
,
but
was
denied
,
a
Prohibition
was
granted
.
And
generally
the
Books
are
,
that
if
the
Spiritual
Court
refuse
such
Proof
,
which
is
allowed
at
the
Common
Law
,
they
shall
be
prohibited
.
There
is
one
Case
against
this
Opinion
,
which
is
,
that
of
but
it
was
only
a
bare
Surmise
and
of
little
Authority
.
Those
who
argued
on
the
other
side
held
that
a
Consultation
shall
go
,
and
that
for
two
Reasons
Because
a
Prohibition
is
prayed
after
Sentence
.
Because
the
Ecclesiastical
Court
have
an
original
Iurisdiction
over
all
Testamentary
things
.
As
to
the
first
Point
,
'T
is
plain
that
if
that
Court
proceed
contrary
to
those
Rules
which
are
used
and
practised
at
the
Common
Law
,
yet
no
Prohibition
ought
to
go
after
Sentence
,
but
the
proper
remedy
is
an
Appeal
.
It
cannot
be
denied
,
but
that
that
Court
had
Cognizance
of
the
principal
matter
in
this
Case
,
which
was
a
Legacy
,
and
Payment
or
not
is
a
thing
collateral
.
Now
wherever
they
have
a
proper
Iurisdiction
of
a
Cause
both
that
and
all
its
dependences
shall
be
tried
according
to
their
Law
,
which
rejects
the
Proof
by
a
single
Witness
.
This
was
the
Opinion
of
Iustice
in
those
times
,
when
most
of
the
Cases
cited
on
the
other
side
were
under
debate
.
In
the
Case
of
a
Revocation
of
a
Will
was
offered
to
be
proved
by
a
single
Witness
in
the
Spiritual
Court
,
which
being
denied
a
Prohibition
was
prayed
but
denied
,
because
the
Will
being
the
principal
matter
of
which
that
Court
had
an
original
Iurisdiction
,
therefore
the
Revocation
thereof
,
which
was
a
collateral
matter
,
but
depending
upon
the
Principal
,
shall
be
tried
there
;
for
when
the
Original
belongs
properly
to
their
determination
,
all
dependences
thereon
shall
follow
it
,
and
be
tryed
by
them
according
to
their
Law
.
this
came
to
be
a
Question
again
it
was
upon
a
Libel
for
a
Legacy
,
and
pleaded
,
which
they
endeavoured
to
prove
by
the
Testimony
of
a
single
Witness
and
denied
:
In
that
Case
Iustices
were
against
the
Prohibition
,
because
a
Suit
for
a
Legacy
was
a
thing
meerly
Spiritual
,
and
Payment
thereof
is
of
the
same
nature
;
so
that
the
Ecclesiastical
Court
hath
a
proper
Iurisdiction
both
of
the
Matter
and
the
Proof
.
By
these
Instances
it
may
be
seen
that
't
is
not
yet
a
settled
Point
that
a
Proof
by
one
Witness
in
that
Court
is
good
for
Prohibitions
have
been
both
granted
and
denied
.
It
cannot
be
a
reason
to
grant
a
Prohibition
to
the
Spiritual
Court
for
refusing
such
Proof
which
is
allowed
at
the
Common
Law
,
because
though
the
Proof
by
a
single
Witness
is
allowed
at
the
Law
,
yet
't
is
not
a
conclusive
Evidence
,
because
the
Iury
who
are
of
the
Vicinage
are
supposed
to
know
the
Fact
and
may
give
a
Verdict
upon
that
knowledge
without
Proof
or
Witness
,
as
well
as
where
there
is
but
one
.
following
the
Court
were
all
of
Opinion
that
no
Consultation
ought
to
go
,
for
as
where
the
Ecclesiastical
Court
proceeds
upon
things
meerly
Spiritual
no
Prohibition
is
to
be
granted
as
in
Suits
about
Probates
of
Wills
,
so
where
they
meddle
with
Temporal
Matters
or
refuse
to
admit
such
Proof
which
is
allowed
at
the
Common
Law
,
no
Consultation
shall
go
.
If
the
Law
should
be
otherwise
it
would
be
inconvenient
for
all
Executors
and
Administrators
,
for
if
they
should
be
compelled
to
prove
payment
of
Debts
by
two
Witnesses
they
might
often
fail
of
that
Proof
,
and
so
pay
the
Mony
twice
.
Such
Proof
which
is
good
at
the
Common
Law
ought
to
be
allowed
in
their
Court
,
and
at
the
Common
Law
't
is
not
necessary
to
prove
a
Payment
of
a
Debt
by
two
Witnesses
.
They
may
follow
their
own
Rules
concerning
things
which
are
originally
in
their
Cognizance
;
but
if
any
collateral
Matter
doth
arise
,
as
concerning
a
Revocation
of
a
Will
,
or
Payment
of
a
Legacy
,
if
the
Proof
be
by
one
Witness
they
ought
to
allow
it
.
Tythes
are
of
Ecclesiastical
Cognizance
;
now
if
a
Libel
should
be
brought
for
Subtraction
of
Tythes
,
and
the
Defendant
proves
by
one
Witness
,
that
he
set
them
out
from
the
nine
parts
tho'
the
Parson
had
not
any
notice
of
it
(
which
he
is
not
to
have
at
the
Common
Law
,
though
't
is
otherwise
by
their
Law
)
that
Court
must
allow
this
Proof
otherwise
a
Prohibition
must
go
.
As
to
the
other
Point
a
Prohibition
may
be
granted
as
well
after
as
before
Sentence
,
but
the
Sentence
in
this
Case
is
the
very
ground
of
the
Prohibition
.
cited
a
Case
between
which
was
a
Devise
of
a
Legacy
of
The
Executor
was
sued
,
who
pleaded
,
that
the
Testator
owed
another
person
the
like
Sum
of
upon
Bond
,
which
being
paid
he
had
not
Assets
And
upon
Proof
in
the
Spiritual
Court
it
appeared
there
was
but
one
Witness
to
the
Bond
,
which
not
being
a
good
Proof
of
it
in
their
Law
,
there
was
a
Sentence
for
the
Payment
of
the
Legacy
,
and
afterwards
a
Prohibition
was
granted
upon
the
suggesting
of
this
Matter
.
AN
Action
was
brought
upon
the
Statute
of
for
a
Robbery
done
in
the
Parish
of
in
the
said
Hundred
:
The
Case
was
thus
,
The
Plaintiff
employed
one
his
Servant
to
sell
fat
Cattle
in
who
sold
them
for
which
Mony
he
delivered
up
in
two
Bags
to
one
a
Quaker
,
who
was
robbed
in
the
Company
of
he
being
also
robbed
of
They
both
gave
notice
of
this
Robbery
to
the
Inhabitants
of
the
next
Village
,
and
was
examined
by
the
Iustice
of
the
Peace
dwelling
in
the
County
and
Hundred
where
the
Robbery
was
committed
,
pursuant
to
the
Statute
,
before
whom
he
made
Oath
,
that
he
did
not
know
any
of
the
Robbers
being
a
Quaker
refused
to
be
examined
upon
Oath
.
the
Master
brought
an
Action
against
the
Hundred
,
and
all
this
Matter
was
found
specially
.
Now
the
Question
was
whether
the
Action
was
well
brought
in
the
name
of
the
Master
;
and
so
whether
the
Hundred
should
be
liable
to
pay
the
Mony
of
which
the
Quaker
was
robbed
,
he
refusing
to
be
examined
upon
Oath
.
In
this
Case
the
Statute
of
Queen
was
considered
,
which
was
made
in
favour
of
the
Hundred
;
for
it
enacts
,
examined
upon
Oath
It
was
agreed
that
the
Master
may
have
an
Action
for
a
Robbery
committed
upon
the
Servant
,
but
that
is
by
vertue
of
the
Statute
of
The
Case
of
against
the
Hundred
of
is
to
that
purpose
,
which
was
a
Robbery
upon
himself
,
Wife
and
Servant
,
the
Mony
being
taken
from
the
Servant
,
and
the
Master
made
Oath
that
he
did
not
know
any
of
the
Robbers
,
but
it
happened
the
Servant
did
know
one
of
them
whose
Name
was
of
which
he
did
then
inform
his
Master
;
and
this
Matter
appearing
to
the
Iury
it
was
found
specially
,
and
upon
the
Argument
of
that
special
Verdict
these
Points
were
resolved
.
That
the
Oath
of
the
Master
without
the
swearing
of
his
Servant
is
good
,
because
the
Servant
had
only
the
bare
Custody
of
the
Mony
.
That
the
Information
then
given
by
the
Servant
to
the
Master
of
his
Knowledge
of
one
of
the
Robbers
did
not
oblige
the
Master
,
because
the
Mony
shall
be
said
to
be
in
his
possession
and
not
of
the
Servant
,
the
Master
being
then
present
,
which
is
all
the
difference
between
that
Case
and
this
at
the
Barr
;
so
that
the
Master
is
the
person
robbed
within
the
meaning
of
the
Statute
of
although
the
Mony
be
in
the
hands
of
the
Servant
.
Suppose
the
Servant
had
received
and
not
being
able
to
carry
it
himself
had
employed
ten
Men
,
each
to
carry
and
they
had
been
all
robbed
,
the
Owner
may
have
an
Action
against
the
Hundred
upon
the
of
one
of
the
persons
robbed
;
the
reason
is
,
because
the
possession
shall
follow
the
property
,
and
the
possession
of
the
whole
will
follow
every
part
.
There
are
Authorities
to
prove
that
if
the
Servant
is
robbed
the
Master
may
give
Evidence
what
Mony
was
delivered
to
him
,
though
that
might
be
as
well
proved
by
another
Witness
.
Now
though
all
this
be
admitted
,
yet
an
Action
will
not
lie
against
the
Hundred
by
the
Master
in
the
Case
at
the
Barr
;
for
the
Statute
of
Queen
being
made
so
much
in
favour
of
the
Hundred
ought
to
be
pursued
.
The
Reasons
why
an
Oath
is
injoyned
by
that
Statute
are
:
That
the
person
robbed
should
enter
into
a
Recognizance
to
prosecute
the
Robbers
,
if
he
knew
them
or
any
of
them
.
That
the
Hundred
might
be
excused
upon
the
Conviction
of
such
person
or
persons
.
To
prevent
a
Robbery
by
Fraud
.
Now
suppose
the
Servant
is
entrusted
with
Mony
,
and
robbed
by
Confederacy
,
shall
the
Hundred
be
answerable
because
the
Servant
hath
broke
his
Trust
?
No
,
the
Servant
ought
to
be
sworn
for
the
purposes
mentioned
in
that
Act
,
which
if
he
refuse
the
Master
hath
lost
his
Action
.
But
if
the
Servant
is
robbed
in
the
Company
or
presence
of
his
Master
the
Mony
is
still
in
Iudgment
of
the
Law
in
the
possession
of
the
Master
,
and
that
was
the
reason
of
the
Iudgment
in
This
is
not
like
the
Case
of
a
common
Carrier
,
who
though
he
may
be
said
to
be
a
Servant
,
yet
he
is
entrusted
by
this
Law
.
This
Action
might
have
been
well
brought
for
the
whole
by
alone
(
but
't
is
now
too
late
,
the
year
being
expired
)
for
where
a
Servant
is
robbed
of
part
of
his
Master's
Goods
and
part
of
his
own
he
may
have
an
Action
,
and
recover
Iudgment
for
the
whole
;
and
therefore
at
another
day
the
Plaintiff
had
Iudgment
for
THIS
was
a
Special
Action
on
the
Case
brought
by
for
hindring
the
Plaintiff
to
go
over
a
Ferry
:
The
Declaration
sets
forth
that
the
Vill
of
in
the
is
an
ancient
Vill
within
which
there
is
a
River
called
River
,
over
which
there
was
an
ancient
passage
in
a
Ferry-Boat
from
the
North
East
part
of
the
said
Vill
to
the
end
of
and
from
thence
to
another
place
called
that
this
passage
was
for
all
People
at
a
certain
price
,
who
by
reason
of
an
ancient
Custom
in
the
said
Vill
were
to
pass
with
paying
Coll
That
the
Plaintiff
was
an
Inhabitant
in
an
ancient
Mesuage
in
the
said
Vill
,
and
that
there
was
an
ancient
Ferry-Boat
kept
there
by
the
Owners
thereof
till
the
first
day
of
in
such
a
year
;
after
which
day
the
Defendants
did
not
keep
the
same
the
Plaintiff
lost
his
The
Defendants
that
the
Passage
was
not
in
a
Ferry-Boat
,
that
there
was
no
such
Custom
,
and
that
the
Plaintiff
was
not
an
Inhabitant
in
an
ancient
Mesuage
in
that
before
the
exhibiting
of
the
Bill
they
did
erect
a
Bridge
over
the
said
River
,
where
the
Passage
was
anciently
,
and
this
was
done
and
maintained
at
their
own
Costs
,
and
that
the
Plaintiff
could
pass
over
the
said
Bridge
,
This
was
pleaded
in
Barr.
The
Plaintiff
replied
,
that
he
The
Defendants
demurred
,
and
the
Plaintiff
joined
in
Demurrer
.
The
Questions
were
Whether
this
was
a
good
Custom
,
as
laid
in
the
Declaration
,
for
the
Inhabitants
of
a
Vill
to
claim
to
be
discharged
of
Coll
If
the
Custom
is
good
,
then
whether
the
Defendants
Plea
in
Barr
is
also
good
to
discharge
themselves
from
keeping
of
the
Boat
.
Whether
the
Plaintiff
can
maintain
this
Action
.
This
Case
was
argued
now
,
and
in
following
by
Council
for
the
Defendants
,
and
in
the
same
Term
by
Council
for
the
Plaintiff
.
Those
who
argued
for
the
Defendants
said
,
that
as
to
the
first
Point
,
though
this
is
set
forth
by
way
of
yet
't
is
in
the
nature
of
a
which
is
always
alledged
in
the
person
,
but
here
't
is
for
the
Inhabitants
of
a
Vill
,
Now
this
cannot
be
good
by
way
of
Prescription
,
because
in
such
Case
there
must
be
a
certain
and
permanent
Interest
abiding
in
some
person
,
which
cannot
be
here
;
for
a
meer
Habitation
or
dwelling
in
an
House
will
not
give
a
Man
such
an
Interest
.
That
which
makes
a
Prescription
good
is
Vsage
and
reasonableness
,
but
it
cannot
be
to
prescribe
for
the
Ferry-Man
hath
neither
any
consideration
or
recompence
for
the
keeping
of
his
Boat
,
when
the
Inhabitants
may
pass
over
at
their
pleasure
without
paying
Toll
.
'T
is
true
,
a
Man
may
prescribe
to
have
Common
which
in
strictness
is
to
put
in
as
many
Cattle
,
as
he
will
;
but
if
he
lays
his
prescription
't
is
not
good
If
therefore
this
is
not
good
by
way
of
Prescription
it
cannot
be
supported
by
Custom
,
because
that
also
must
extend
to
what
hath
some
certainty
,
and
which
must
likewise
have
a
reasonable
beginning
.
Now
there
can
be
no
certainty
in
this
Custom
,
because
the
Plaintiff
claimeth
it
only
during
his
in
which
he
had
neither
a
certain
time
or
Estate
,
and
this
is
such
a
transitory
interest
,
which
is
not
allowed
in
the
Law
.
And
therefore
it
hath
been
adjudged
that
a
Custom
for
an
Infant
to
sell
his
Lands
when
he
can
measure
an
Ell
of
Cloth
is
void
,
because
't
is
incertain
of
what
Age
he
may
then
be
,
and
't
is
equally
as
incertain
,
how
long
a
Man
may
live
in
one
of
these
ancient
Houses
.
Such
a
Custom
might
be
good
in
point
of
Tenure
,
for
it
might
have
a
reasonable
commencement
between
Lord
and
Tenant
;
but
this
cannot
be
good
as
laid
in
this
Declaration
,
for
several
Reasons
.
Because
't
is
not
alledged
that
the
Defendants
of
right
ought
to
keep
a
Boat
there
,
or
that
it
was
necessary
for
them
to
be
always
attending
,
for
possibly
it
might
require
the
use
of
skilful
Men
;
and
therefore
in
all
Actions
brought
for
not
repairing
of
Ways
't
is
alledged
that
the
Defendant
Because
it
brings
a
Charge
without
any
recompence
,
and
this
must
be
very
unreasonable
.
'T
is
true
,
that
a
Custom
for
Fishermen
to
dry
their
Nets
upon
another
Man's
Ground
is
good
,
which
may
seem
to
be
a
Charge
upon
the
Land
without
any
Reward
;
but
the
reason
is
,
because
the
catching
of
Fish
is
for
the
publick
benefit
,
and
every
man
may
have
advantage
by
it
.
A
Custom
to
have
hath
been
formerly
doubted
whether
good
or
not
;
but
't
is
now
held
to
be
good
because
the
Lord
of
the
Soil
might
have
some
other
Recompence
for
it
.
Because
't
is
unlimited
,
for
the
Tenants
may
pass
and
repass
according
to
this
Custom
,
but
it
ought
to
be
laid
for
their
necessary
occasions
,
for
otherwise
the
Defendants
may
be
deprived
of
their
Freehold
,
because
the
Tenants
may
always
keep
the
Boat
in
use
.
Point
was
not
much
insisted
on
,
which
was
,
as
to
the
matter
of
the
Plea
;
only
it
was
said
,
that
it
was
not
so
well
to
take
away
the
whole
Prescription
,
that
the
Plea
might
have
been
good
if
it
had
been
the
Bridge
fall
or
decayed
,
then
the
Prescription
doth
revive
again
.
Point
.
Then
supposing
the
Declaration
to
be
sufficient
,
yet
as
this
is
upon
the
Record
the
Plaintiff
could
not
have
this
Action
,
because
he
had
set
forth
this
to
be
a
publick
and
common
Ferry
for
all
People
to
pass
,
and
that
he
was
hindred
,
but
doth
not
shew
any
particular
damage
,
and
therefore
can
have
no
cause
of
Action
.
'T
is
like
the
Case
of
a
common
High-way
which
is
out
of
repair
,
for
which
no
man
can
bring
an
Action
unless
he
hath
a
particular
damage
or
loss
more
than
the
rest
of
the
People
passing
that
way
,
but
the
Party
ought
to
be
indicted
,
and
this
is
to
prevent
multiplicity
of
Suits
;
for
if
one
man
may
have
an
Action
every
person
traveling
that
way
may
have
the
like
.
Another
Exception
was
taken
to
the
Declaration
,
that
all
the
Custom
is
laid
to
be
for
the
Inhabitants
of
an
ancient
Vill
to
pass
Toll-Free
from
and
they
do
not
alledge
that
Bank
to
be
within
the
Vill.
Those
who
argued
for
the
Plaintiff
held
this
to
be
a
good
Custom
,
as
set
forth
by
him
,
and
as
such
't
is
not
confined
to
the
same
Rules
with
a
Prescription
,
which
must
have
a
lawful
commencement
;
but
it
is
otherwise
in
a
Custom
,
for
't
is
sufficient
if
it
be
certain
and
reasonable
.
The
Cases
cited
on
the
other
side
are
not
to
this
purpose
,
because
they
concern
only
such
Customs
which
relate
to
some
Interest
or
profit
in
the
Land
of
another
person
,
but
this
Custom
is
only
in
a
matter
of
This
was
the
very
difference
taken
by
the
Iudges
in
's
Case
where
it
was
held
to
be
a
good
Custom
for
every
Inhabitant
of
a
particular
Town
to
have
a
Way
over
such
Lands
to
go
to
Church
or
Market
,
because
this
was
matter
of
easement
and
no
profit
.
Now
a
Passage
over
a
River
is
no
more
than
a
way
,
and
may
be
tied
up
to
one
or
more
persons
according
to
their
comorancy
.
Since
therefore
no
Interest
is
claimed
by
the
Plaintiff
,
but
only
an
easment
,
this
Prescription
need
not
be
laid
in
the
Owners
,
but
in
the
Inhabitants
of
the
Vill
of
It
may
be
compared
to
a
Case
where
a
Custom
was
laid
for
the
Inhabitants
of
a
Town
to
pay
a
in
discharge
of
Tythes
this
was
held
good
,
because
it
was
by
way
of
discharge
in
the
persons
Lands
,
without
claiming
any
profit
in
that
of
another
.
'T
is
also
like
the
common
Case
of
a
Market
,
when
a
Man
has
pitched
his
Stall
,
there
no
person
can
remove
it
,
for
he
hath
a
right
Then
as
to
the
first
Objection
upon
the
first
Point
,
That
a
Custom
to
pass
and
repass
,
cannot
be
good
;
it
was
answered
,
this
passage
was
in
the
nature
of
a
High
way
,
over
which
a
Man
may
pass
as
often
as
he
will
;
and
therefore
't
is
well
enough
as
laid
in
the
Declaration
.
As
to
the
Objection
,
that
it
ought
to
be
laid
in
some
person
,
and
not
in
the
Inhabitants
,
it
was
said
this
was
an
easment
to
the
Plaintiff
,
and
no
such
thing
can
be
to
one
man
but
it
makes
another
a
Crespasser
,
and
't
is
no
Interest
in
the
Plaintiff
to
be
discharged
of
a
Charge
.
A
Custom
to
grind
at
the
Lords
Mill
discharged
of
Toll
,
rules
this
Case
;
for
is
it
not
as
much
charge
for
a
Lord
of
a
Mannor
to
keep
a
Mill
as
for
the
Defendant
to
keep
a
Boat
?
If
the
Plaintiff
had
prescribed
,
then
this
had
come
within
the
the
Rules
of
's
Case
But
he
hath
alledged
a
Custom
,
and
when
such
Allegations
are
made
,
they
ought
not
to
be
too
narrowly
searched
for
:
No
reason
can
be
given
why
an
Infant
at
years
of
Age
shall
be
capable
to
make
a
Feoffment
in
one
Town
and
not
in
another
?
Then
as
to
the
third
point
,
that
this
being
laid
to
be
a
Common
Ferry
,
the
Plaintiff
ought
to
shew
some
special
damage
to
maintain
an
Action
.
To
which
it
was
answered
that
the
right
was
on
the
Plaintiff's
side
,
and
that
was
sufficient
to
maintain
the
Action
.
'T
is
not
like
the
Case
of
a
Common-High-way
,
as
mentioned
on
the
other
side
,
because
this
Action
is
confined
to
alone
,
and
no
Man
is
intituled
to
it
,
but
such
who
inhabit
that
Vill
,
so
that
every
Man
cannot
bring
an
Action
.
As
to
the
Exception
to
the
form
of
the
Declaration
,
that
is
not
laid
to
be
in
the
Vill
,
it
was
said
that
the
Plaintiff
only
claimed
a
right
of
passage
over
the
River
,
which
is
laid
to
be
in
the
Vill
of
the
Bank
is
only
the
't
is
like
the
Case
where
the
Defendant
covenanted
to
repair
a
Mill
and
the
Water-courses
in
a
Parish
,
and
also
the
Banks
belonging
to
the
Mill
,
in
which
Case
the
Plaintiff
had
Iudgment
,
tho'
he
did
not
shew
in
what
Vill
the
Banks
were
,
because
it
shall
be
intended
to
be
in
the
same
Vill
where
the
Mill
was
.
Afterwards
in
Iudgment
was
given
for
the
Defendant
,
Iustice
,
who
was
also
of
the
same
Opinion
.
It
was
held
that
the
Custom
was
well
alledged
,
both
as
to
the
manner
and
matter
;
't
is
true
,
all
Customs
must
have
reasonable
beginnings
,
but
it
would
be
very
difficult
to
assign
a
lawful
commencement
for
such
a
Custom
as
this
is
,
so
it
would
be
for
the
Custom
of
which
are
circumscribed
to
particular
places
;
and
since
't
is
sufficient
to
alledge
a
Custom
,
by
reason
of
the
place
where
t
is
used
;
it
may
be
as
reasonable
in
this
Case
to
say
that
there
hath
been
an
ancient
Ferry-Boat
kept
in
this
place
;
't
is
but
only
an
inducement
to
the
Custom
,
which
did
not
consist
so
much
in
having
a
Right
to
the
Passage
,
as
to
be
discharged
of
Toll
.
This
might
have
a
lawful
beginning
,
either
by
a
Grant
of
the
Lord
to
the
Ancestors
of
the
Defendant
,
or
by
the
agreement
of
the
Inhabitants
.
A
Custom
alledged
for
all
the
Occupiers
of
a
Close
in
such
a
Parish
to
have
a
Foot-way
,
is
not
good
;
the
reason
is
because
the
Plaintiff
ought
to
prescribe
in
him
who
hath
the
Inheritance
;
but
where
a
thing
is
of
necessity
,
and
no
manner
of
profit
or
charge
in
the
Soil
of
another
,
but
only
a
thing
in
discharge
,
or
for
a
Way
to
a
Market
,
or
to
be
quit
of
Toll
,
in
such
cases
not
only
a
particular
person
,
but
the
Inhabitaints
of
a
Vill
may
alledge
a
Prescription
.
This
may
be
as
well
alledged
,
as
a
Custom
to
turn
a
Plow
upon
another
mans
Land
,
or
for
a
Fisherman
to
mend
his
Nets
there
.
'T
is
good
as
to
the
matter
,
for
't
is
only
an
easment
;
't
is
like
a
Custom
alledged
for
a
Gateway
or
Watercourse
,
and
for
such
things
Inhabitants
of
a
Vill
,
or
all
the
Parishioners
of
a
Parish
may
alledge
a
Custom
or
Vsage
in
the
place
.
Point
.
But
as
to
the
Plea
in
Bar
,
't
is
not
good
,
because
the
execting
of
a
Bridge
is
but
laying
out
a
Way
;
t
is
a
voluntary
act
,
and
no
man
by
reason
of
his
own
act
can
be
discharged
of
what
he
is
to
do
,
upon
the
interest
he
hath
in
the
Ferry
.
If
the
Defendant
had
petitioned
the
King
to
destroy
the
Ferry
,
and
got
a
Patent
to
erect
a
Bridge
,
and
had
brought
a
Writ
and
it
had
been
found
by
inquisition
to
be
no
damage
to
the
People
,
then
he
might
safely
have
built
this
Bridge
.
But
notwithstanding
the
Plea
is
not
good
,
yet
the
Plaintiff
can
have
no
advantage
of
it
,
because
he
cannot
have
an
Action
on
the
Case
for
this
matter
,
for
by
his
own
shewing
,
't
is
a
common
Passage
,
which
is
no
more
than
a
common
High-way
;
now
for
disturbing
him
in
such
a
Passage
,
no
Action
on
the
Case
will
lie
,
unless
he
had
alledged
some
particular
damage
done
to
himself
;
for
if
he
could
maintain
such
an
Action
,
any
other
person
is
entituled
to
the
like
,
and
this
would
be
to
multiply
Suits
,
which
the
Law
will
not
allow
,
but
hath
provided
a
more
apt
and
convenient
remedy
,
which
is
by
presentment
in
the
Leet
.
If
Toll
had
been
extorted
from
him
,
then
an
Action
on
the
Case
had
been
the
proper
remedy
,
but
no
such
thing
appeared
upon
this
Declaration
.
THE
Suggestion
in
a
Prohibition
was
,
that
was
seized
of
the
Rectory
of
and
that
he
being
so
seised
,
ought
to
present
a
Vicar
to
the
said
place
,
but
that
the
Bishop
of
the
Diocess
had
,
of
his
own
accord
,
appointed
a
person
thereunto
.
This
Exception
was
taken
to
it
,
He
doth
not
say
that
he
was
Impropriator
,
but
only
that
he
was
seised
of
the
Rectory
in
Fee
,
so
it
not
appearing
that
he
had
it
Impropriate
,
he
ought
no
to
present
the
Vicar
.
replied
,
That
in
several
places
in
the
Abbots
of
did
send
Monks
to
say
Mass
,
and
so
the
Vicaridges
were
not
endowed
,
but
he
put
in
and
displaced
whom
he
pleased
.
That
he
had
heard
my
Lord
Chief
Iustice
often
say
,
that
the
Abbot
had
as
much
reason
to
displace
such
Men
,
as
he
had
his
Butler
or
other
Servant
.
Declare
upon
the
Prohibition
,
and
try
the
Cause
.
AN
Agreement
was
made
to
assign
a
Stock
upon
and
for
non-performance
an
Action
was
now
brought
,
setting
forth
the
Agreement
,
and
that
the
Plaintiff
did
request
the
Defendant
at
such
a
time
,
The
Defendant
pleaded
that
he
was
ready
to
assign
the
Stock
after
the
promise
made
,
and
upon
a
Demurrer
it
was
ruled
if
the
thing
was
not
to
be
done
then
the
Defendant
was
bound
to
do
it
in
a
convenient
time
after
the
promise
,
but
it
being
to
be
done
upon
request
,
the
time
when
the
Plaintiff
will
require
the
performance
of
the
Agreement
,
is
the
time
when
the
Defendant
must
do
it
.
WRit
of
Error
upon
a
Iudgment
in
Ejectment
given
in
the
the
Case
upon
the
special
Verdict
was
thus
:
was
Tenant
for
Life
of
the
Lands
in
question
,
with
Remainder
in
contingency
to
his
first
,
second
and
third
Son
in
Tail
Male
,
Remainder
to
Sir
in
Tail
This
Settlement
was
made
by
the
Will
of
who
was
seised
in
Fee
.
The
Tenant
for
Life
,
two
months
before
he
had
a
Son
born
,
did
in
the
absence
of
Sir
the
Remainder
man
in
Tail
,
seal
and
deliver
a
Writing
,
by
which
he
did
the
Lands
which
he
had
for
Life
,
to
the
use
of
Sir
and
his
Heirs
,
and
continued
in
possession
five
years
afterwards
,
and
then
,
and
not
before
,
Sir
and
entred
upon
the
Premisses
But
that
about
four
years
before
he
thus
agreed
to
it
,
the
Tenant
for
Life
,
had
a
Son
born
named
Lessor
of
the
Plaintiff
,
to
whom
the
Remainder
in
contingency
was
thus
limited
.
The
Tenant
for
Life
died
,
then
Sir
suffered
a
Common
Recovery
in
order
to
bar
those
Remainders
.
The
Question
was
,
whether
this
was
a
legal
and
good
Surrender
of
the
Premisses
,
to
vest
the
Freehold
immediately
in
Sir
the
Son
of
the
Surrenderor
was
born
,
so
as
to
make
him
a
good
Tenant
to
the
Precipe
,
upon
which
the
Recovery
was
afterwards
suffered
.
If
so
,
then
the
contingent
Remainders
to
the
first
and
other
Sons
is
destroyed
.
If
the
Estate
was
not
vested
in
the
Surrendree
till
his
such
assent
shall
not
(
though
after
the
execution
of
the
Deed
)
so
as
to
pass
the
Estate
at
the
very
time
it
was
sealed
and
delivered
.
Iudgment
being
given
in
the
by
the
Opinion
of
three
Iustices
,
against
Iustice
that
the
contingent
Remainder
was
not
destroied
by
this
Surrender
,
because
it
was
not
good
without
the
and
till
the
actual
of
the
Surrendree
,
this
Writ
of
Error
was
now
brought
upon
that
Iudgment
.
This
Case
depended
several
Terms
,
and
those
who
argued
to
maintain
the
Iudgment
insisted
that
here
was
neither
a
mutual
agreement
between
the
Parties
,
or
acceptance
or
entry
of
the
Surrendree
,
which
must
be
in
every
Surrender
,
these
being
solemn
acts
in
such
Cases
required
to
the
alteration
of
Possessions
,
and
to
prevent
Frauds
.
That
the
Law
hath
a
greater
regard
to
the
transmutation
of
Possessions
,
than
to
the
alteration
of
Personal
things
,
and
therefore
more
Ceremonies
are
made
requisite
to
that
,
than
to
transfer
a
Chattel
from
one
to
another
.
In
all
Feoffments
there
must
be
Livery
and
Seisin
,
so
in
Partitions
and
in
Exchanges
,
which
are
Conveyances
at
the
Common
Law
,
no
Estate
is
changed
until
an
actual
Entry
,
though
in
the
Deed
it self
such
Entry
is
fully
expressed
.
Here
the
Surrendree
is
a
Purchaser
of
the
Estate
,
and
yet
did
not
know
any
thing
of
it
,
than
which
nothing
can
be
more
absurd
.
'T
is
admitted
that
every
Gift
and
Grant
enures
to
the
benefit
of
the
Donee
and
Grantee
,
but
not
where
the
assent
of
the
Parties
is
required
to
compleat
the
act
.
Assent
and
Dis-assent
are
acts
of
the
Mind
;
now
't
is
impertinent
to
say
that
a
Man
gave
his
Assent
to
a
thing
which
he
never
heard
.
A
Lease
for
years
is
not
good
without
Entry
,
nor
a
Surrender
without
Acceptance
.
'T
is
no
new
thing
to
compare
a
Surrender
to
a
resignation
of
a
Benefice
now
if
an
Incumbent
should
resign
to
the
Ordinary
,
and
the
Patron
should
afterwards
present
to
that
Living
such
presentation
is
void
if
the
Ordinary
had
not
accepted
the
resignation
,
the
reason
is
,
because
a
resignation
doth
not
pass
the
Freehold
to
the
Bishop
,
but
puts
it
only
in
Abeyance
till
his
acceptance
;
and
't
is
not
an
Objection
to
say
that
this
is
grounded
upon
an
Ecclesiastical
Right
,
and
not
at
the
Common
Law
,
or
that
a
Formedon
will
not
lie
of
a
Rectory
;
for
tho'
't
is
of
Ecclesiastical
Right
,
yet
't
is
of
Temporal
Cognizance
,
and
shall
be
tried
at
Law
.
The
president
in
may
be
objected
,
where
the
surviving
Lessee
for
years
brought
an
Action
of
Covenant
against
the
Lessor
for
disturbing
of
him
in
his
possession
,
and
the
Lessor
pleaded
a
Surrender
to
himself
but
the
Plaintiff
in
that
Case
said
nothing
of
a
Surrender
.
In
the
same
Book
a
Surrender
was
pleaded
the
Plaintiff
so
in
's
Abridgment
issue
was
joyned
upon
the
which
shews
't
is
a
material
point
.
No
inconvenience
can
be
objected
that
an
Assent
is
made
a
Legal
Ceremony
to
a
Surrender
,
for
't
is
not
inconvenient
even
in
the
Case
of
an
Infant
,
who
by
reason
of
his
non-age
is
not
capable
to
take
such
a
Conveyance
,
because
he
cannot
give
his
assent
,
but
he
may
take
the
Land
by
way
of
Feoffment
,
or
Grant
,
or
any
Conveyance
of
like
nature
,
without
his
Assent
.
By
the
very
definition
of
a
Surrender
,
it
plainly
appears
that
there
must
be
an
to
it
;
for
't
is
nothing
else
but
a
yielding
up
of
an
Estate
to
him
who
hath
the
immediate
Reversion
or
Remainder
,
wherein
the
Estate
for
Life
or
Years
may
drown
by
between
the
Parties
'T
is
true
,
an
is
not
necessary
in
Devises
,
nor
in
any
other
Conveyances
,
which
are
directed
by
particular
Statutes
,
or
by
Custom
;
but
't
is
absolutely
necessary
in
a
Surrender
,
which
is
a
Conveyance
at
the
Common
Law
;
't
is
such
an
essential
Circumstance
,
that
the
Deed
it self
is
void
without
it
,
't
is
as
necessary
as
an
Attornment
to
the
Grant
of
a
Reversion
,
or
an
Entry
to
a
Deed
of
Exchange
,
which
are
both
likewise
Conveyances
at
the
Common
Law
.
There
are
various
Circumstances
in
the
Books
which
declare
what
acts
shall
amount
to
an
but
it
was
never
yet
doubted
,
but
that
an
acceptance
was
necessary
to
a
Surrender
.
So
in
the
Entries
a
Surrender
is
sometimes
pleaded
without
an
Acceptance
;
but
't
is
always
that
the
Surrendree
by
vertue
of
the
Surrender
the
Plaintiff
,
which
amounts
to
an
Agreement
.
The
Law
is
so
careful
in
these
Conveyances
,
that
it
will
not
presume
an
assent
without
some
act
done
;
if
therefore
a
Deed
cannot
operate
as
a
Surrender
without
an
acceptance
,
then
in
this
Case
no
such
shall
be
presumed
,
because
the
Iury
have
found
it
expresly
otherwise
;
then
by
the
birth
of
the
contingent
Remainder
is
vested
in
him
,
which
arising
before
the
Assent
of
the
Surrendree
,
makes
such
assent
afterwards
void
,
for
there
can
be
no
intermediate
Estate
.
Besides
,
if
an
should
not
be
necessary
to
a
Surrender
,
this
inconvenience
would
follow
,
if
a
Purchaser
should
take
in
several
Mortgages
and
Extents
,
and
keep
them
all
on
foot
in
a
third
persons
name
(
which
is
usual
)
to
prevent
mean
incumbrances
,
and
the
Mortgagor
should
afterwards
Surrender
his
Estate
without
the
assent
of
the
Purchaser
,
if
this
should
be
held
a
good
Conveyance
in
Law
,
it
would
be
of
very
mischievous
consequence
.
If
the
Estate
is
not
immediately
transferred
to
the
Surrendree
at
the
sealing
of
the
Deed
,
without
the
assent
of
the
Surrenderor
,
it
shall
not
pass
afterwards
when
he
gives
his
consent
,
and
that
by
way
of
for
if
that
should
be
allowed
then
the
Surrenderor
might
have
kept
the
Deed
in
his
Pocket
,
as
well
fifty
as
five
years
after
the
execution
thereof
,
which
would
be
so
prejudicial
,
that
no
Man
could
be
assured
of
his
Title
.
'T
is
true
,
when
a
Bargain
and
Sale
is
made
of
Land
,
such
a
day
and
two
days
afterwards
the
Bargainor
enters
into
a
Recognizance
;
then
the
Deed
is
inrolled
,
within
the
six
Months
,
by
this
means
the
Conusee
of
the
Statute
is
defeated
;
for
after
the
inrollment
the
Land
passeth
and
the
Bargainee
in
Iudgment
of
Law
was
seised
thereof
from
the
delivery
of
the
Deed
,
but
not
by
way
of
but
by
immediate
Conveyance
of
the
Estate
,
by
vertue
of
the
Statute
of
Vses
.
But
the
Law
will
not
suffer
contingent
Remainders
to
waver
about
,
and
to
be
so
incertain
that
no
Man
knows
where
to
find
them
,
which
they
must
be
,
if
this
Doctrine
of
Relation
should
prevail
.
Now
suppose
the
Surrendree
had
made
a
Grant
of
his
Estate
to
another
person
,
before
he
had
accepted
of
the
Surrender
,
and
the
Grantee
had
entred
,
would
this
subsequent
assent
have
divested
this
Estate
and
made
the
Grant
of
no
effect
?
if
it
would
,
then
here
is
a
plain
way
found
out
for
any
Man
to
avoid
his
own
acts
,
and
to
defeat
Purchasors
.
Therefore
't
is
with
great
reason
that
the
Law
provides
that
no
person
shall
take
a
Surrender
but
he
who
hath
the
immediate
Reversion
,
and
that
the
Estate
shall
still
remain
in
the
Surrenderor
until
all
acts
are
done
which
are
to
compleat
the
Conveyance
.
Those
who
argued
against
the
Iudgment
,
held
that
the
Estate
passed
immediately
without
the
assent
of
the
Surrenderor
,
and
that
even
in
Conveyances
at
the
Common-Law
,
't
is
divested
out
of
the
person
,
and
put
in
him
to
whom
such
Conveyance
is
made
without
his
'T
is
true
,
in
Exchanges
the
Freehold
doth
not
pass
without
Entry
,
nor
a
Grant
of
a
Reversion
without
an
Attornment
,
but
that
stands
upon
different
Reasons
from
this
Case
at
the
Bar
;
for
in
Exchanges
the
Law
requires
the
mutual
acts
of
the
Parties
exchanging
,
and
in
the
other
there
must
be
the
consent
of
a
third
person
.
But
in
Surrenders
the
assent
of
the
Surrendree
is
not
required
,
for
the
Estate
must
be
in
him
immediately
upon
the
execution
of
the
Deed
,
if
he
doth
not
shew
some
dissent
to
it
.
If
a
Man
should
plead
a
Release
without
saying
the
Defendant
yet
this
Plea
is
good
,
because
the
Estate
passeth
to
him
upon
the
execution
of
the
Deed.
It
may
be
a
Question
,
whether
the
actual
assent
must
be
at
the
very
time
that
the
Surrender
was
made
;
for
if
it
should
be
afterwards
,
t
is
well
enough
,
and
the
Estate
remaineth
in
the
Surrendree
,
till
dis-agreement
.
Presumption
stands
on
this
side
,
for
it
shall
never
be
intended
that
he
did
not
give
his
Assent
,
but
on
the
contrary
,
because
t
is
for
his
benefit
not
to
refuse
an
Estate
.
Therefore
where
a
Feme
Sole
had
a
Lease
and
married
,
the
Husband
and
Wife
surrendred
it
to
another
in
consideration
of
a
new
Lease
to
be
granted
to
the
Wife
and
her
Sons
,
this
Estate
vests
immediately
in
her
,
tho'
a
Feme
Covert
,
and
that
without
the
assent
of
her
Husband
,
for
the
Law
intends
it
to
be
her
Estate
till
he
dissent
;
't
is
true
,
in
that
Case
his
assent
was
held
necessary
,
because
the
first
Lease
could
not
be
divested
out
of
him
,
without
his
own
consent
.
So
a
Feoffment
to
three
and
Livery
made
to
one
,
the
Freehold
is
in
all
'till
So
if
a
Bond
be
given
to
a
Stranger
for
my
use
,
and
I
should
die
before
I
had
agreed
to
it
,
my
Executors
are
entituled
to
an
Action
of
Debt
,
and
will
recover
.
A
Feme
Covert
and
another
were
Ioint-tenants
for
Life
she
and
her
Husband
made
a
Lease
for
years
of
her
moiety
,
reserving
a
Rent
,
during
her
Life
,
and
the
Life
of
her
partner
,
then
the
Wife
died
:
this
was
held
to
be
a
good
Lease
against
the
surviving
Ioint-tenant
till
which
shews
that
the
agreement
of
the
Parties
is
not
so
much
requisite
to
perfect
a
Conveyance
of
this
nature
,
as
a
disagreement
is
to
make
it
void
.
And
this
may
serve
as
an
answer
to
the
second
point
,
which
was
not
much
insisted
on
,
that
Mens
Titles
would
be
incertain
and
precarious
if
after
the
assent
of
the
Surrendree
,
the
Estate
should
pass
by
at
the
very
time
that
the
Deed
was
executed
,
and
that
it
was
not
known
where
the
Free-hold
was
in
the
mean
time
,
for
if
he
had
agreed
to
it
immediately
,
it
had
been
altogether
as
private
.
Then
as
to
the
Pleadings
,
't
is
true
,
that
generally
when
a
Surrender
is
pleaded
,
't
is
said
,
the
Party
which
implies
that
the
Surrendree
was
then
present
;
and
in
such
Case
he
ought
to
agree
or
refuse
.
Besides
those
Actions
to
which
an
Agreement
is
thus
pleaded
were
generally
brought
in
disaffirmance
of
Surrenders
,
and
to
support
the
Leases
;
upon
which
the
Plaintiffs
declared
,
and
then
the
proper
and
most
effectual
Bar
was
to
shew
a
Surrender
and
express
Agreement
before
the
Action
brought
.
It
might
have
been
insufficient
pleading
not
to
shew
an
of
the
Surrendree
,
but
't
is
not
substance
;
for
if
Issue
should
be
taken
,
whether
a
Surrender
or
not
,
and
a
Verdict
for
the
Plaintiff
,
that
defect
of
setting
forth
an
is
aided
by
the
Statute
of
Ieofails
.
In
this
Case
there
is
not
only
the
Word
which
may
be
pleaded
without
any
consent
to
it
,
and
a
Grant
by
operation
of
Law
turns
to
a
Surrender
,
because
a
Man
cannot
have
two
Estates
of
equal
dignity
in
the
Law
at
the
same
time
.
Neither
can
it
be
said
that
there
remained
any
Estate
in
after
this
Surrender
executed
;
for
't
is
an
absurd
thing
to
imagine
that
when
he
had
done
what
was
in
his
power
to
compleat
a
Conveyance
,
and
to
divest
himself
of
an
Estate
,
yet
it
should
continue
in
him
.
Therefore
the
Remainder
in
Contingency
to
the
Lessor
of
the
Plaintiff
was
destroyed
by
this
Surrender
of
the
Estate
to
him
in
reversion
,
for
by
that
means
when
it
did
afterwards
happen
there
was
no
particular
Estate
to
support
it
.
But
notwithstanding
the
Iudgment
was
affirmed
,
and
afterwards
upon
a
Writ
of
Error
brought
in
the
House
of
Lords
it
was
reversed
.
THIS
Point
having
received
a
legal
determination
the
same
Plaintiff
brought
another
Action
of
against
the
same
Defendant
and
at
a
Trial
at
the
Barr
in
another
special
Verdict
was
found
,
upon
which
the
Case
more
at
large
was
,
being
seised
in
Fee
of
the
Lands
in
question
made
his
Will
in
these
Words
,
Amen
,
&c.
Bulkworth
,
Whitebear
Cresby
Goat
Cresby
Grange
Simon
Leach
Simon
Leach
Simon
Leach
Simon
Leach
Devon
'
Nicholas
Leach
They
find
that
died
without
Issue
;
that
his
Brother
and
Heir
with
Remainder
over
in
Contingency
as
aforesaid
entered
,
and
afterwards
married
the
Daughter
of
and
that
after
the
said
Marriage
,
he
executed
a
Deed
purporting
a
Surrender
of
the
said
Lands
and
Tenements
to
Sir
in
manner
following
Simon
Leach
Simon
Leach
Simon
Leach
Simon
Leach
They
find
that
Brother
of
the
Testator
,
was
not
at
the
time
of
the
sealing
and
delivery
of
the
said
Surrender
.
That
on
the
day
of
(
which
was
two
Months
after
this
Surrender
made
)
the
said
had
Issue
of
his
Body
who
is
his
Son
and
Heir
;
that
he
after
the
death
of
his
Father
entred
and
made
a
Lease
to
by
vertue
whereof
he
was
possessed
until
the
Defendant
,
Sir
entred
upon
him
Two
Questions
were
made
upon
this
Special
Verdict
.
Whether
this
Surrender
by
a
person
was
void
and
so
could
pass
no
Estate
to
the
Surrendree
;
for
if
so
,
then
though
the
Ideot
himself
is
estopped
by
his
own
Act
,
yet
that
can
be
no
Barr
to
him
in
the
Remainder
,
because
the
Act
being
void
the
Estate
in
Law
still
remains
in
him
.
If
it
is
not
void
in
its
self
,
then
whether
it
is
voidable
after
the
death
of
the
Party
by
he
claiming
by
virtue
of
a
collateral
Remainder
,
and
not
as
Heir
at
Law
to
the
Devisor
.
As
to
the
first
Point
it
was
argued
,
that
the
Cases
of
Lunaticks
and
Infants
go
hand
in
hand
,
and
that
the
same
Reasons
govern
both
;
that
the
Law
is
clear
that
a
Surrender
made
by
an
Infant
is
void
;
therefore
a
Surrender
made
by
a
person
is
also
void
the
reason
is
because
they
know
not
how
to
govern
themselves
.
And
as
if
he
makes
any
Conveyance
of
his
Land
the
Law
hath
provided
a
remedial
Writ
even
for
himself
to
avoid
his
own
Alienation
.
His
Feoffments
are
void
and
if
Warranties
are
annexed
those
they
are
also
void
;
if
he
granteth
a
Rent-Charge
out
of
his
Land
that
is
likewise
void
;
and
if
the
Grantee
should
distrain
for
this
Rent
after
the
death
of
the
Grantor
his
Heir
shall
have
an
Action
of
Trespas
against
him
,
and
therefore
by
parity
of
Reason
this
Surrender
must
be
void
.
there
is
a
Case
to
this
purpose
,
An
Assize
was
brought
against
the
Tenant
supposing
that
he
had
no
right
of
Entry
unless
under
a
Disseisor
by
whom
the
Brother
of
the
Demandant
was
disseised
.
The
Tenant
pleaded
that
the
supposed
Disseisor
was
the
Father
of
the
Demandant
,
whose
Heir
he
then
was
,
and
that
his
said
Father
made
a
Feoffment
of
the
Land
to
the
Tenant
with
Warranty
,
and
demanded
Iudgment
,
The
Demandant
replied
,
that
his
Father
at
that
time
was
and
the
Tenant
was
compelled
to
rejoin
and
take
Issue
upon
the
Insanity
,
which
shews
that
if
he
was
he
could
not
have
made
such
a
Feoffment
.
So
if
he
maketh
a
Feoffment
in
Fee
and
afterwards
taketh
back
an
Estate
for
Life
,
shall
be
remitted
to
his
ancient
Title
,
which
shews
likewise
that
such
Feoffment
was
void
,
for
the
Remitter
supposeth
a
former
Right
.
'T
is
incongruous
to
say
,
that
Acts
done
by
persons
of
no
discretion
shall
be
good
and
valid
in
the
Law
,
such
are
Infants
and
Lunaticks
;
and
it
stands
with
great
reason
that
what
they
do
should
be
void
,
especially
,
when
it
goes
to
the
destruction
of
their
Estates
.
Therefore
't
is
held
,
that
if
a
person
releaseth
his
right
that
shall
not
barr
the
King
in
his
Life
time
,
but
he
shall
seize
the
Land
;
and
if
he
die
,
his
Heir
may
bring
the
Writ
and
may
enter
'T
is
for
this
reason
that
a
Release
made
by
an
Infant
Executor
is
no
barr
,
because
it
works
in
destruction
of
his
Interest
's
Case
the
reason
is
the
same
where
a
person
maketh
a
Feoffment
,
for
that
likewise
destroys
his
Estate
.
So
likewise
an
Infant
can
neither
surrender
a
future
Interest
by
his
acceptance
of
a
new
Lease
,
nor
make
an
absolute
Surrender
of
a
Term
of
which
he
is
possessed
,
for
such
a
Surrender
by
Deed
is
void
.
'T
is
agreed
,
that
if
a
Man
maketh
a
Feoffment
by
Letter
of
Attorny
't
is
meerly
void
,
because
't
is
not
delivered
to
the
Feoffee
by
the
hands
of
the
Feoffor
;
but
't
is
said
that
if
it
be
delivered
by
him
in
person
then
't
is
only
voidable
at
any
time
by
Action
or
Entry
:
's
Law
.
And
of
this
Opinion
was
Sir
in
his
Discourse
of
the
Law
,
who
in
the
Margen
of
his
Book
quotes
several
Authorities
in
the
Year
Books
to
justifie
this
Opinion
;
and
amongst
the
rest
he
cites
Sir
who
taking
notice
of
the
old
Authorities
seems
to
reject
their
Reasons
,
who
affirm
a
person
shall
not
avoid
his
own
Act
when
he
recovers
his
memory
,
because
he
cannot
then
tell
what
he
did
when
he
was
in
his
former
Condition
.
But
certainly
when
he
recovers
his
Iudgment
,
he
is
then
of
Ability
to
consider
what
was
done
during
his
Insanity
,
and
to
avoid
such
Acts
by
shewing
how
his
indisposition
came
by
the
visitation
of
God
,
by
which
he
was
disabled
for
a
time
to
do
any
reasonable
thing
whatsoever
;
and
this
may
be
as
well
done
as
to
plead
from
Men
which
the
Law
allows
to
make
compulsary
Acts
void
.
My
Lord
Case
taking
notice
of
the
great
reason
of
the
Civil
Law
in
Cases
of
this
nature
,
which
maketh
all
Acts
done
by
Ideots
void
without
their
concurrence
;
and
that
it
was
objected
as
a
defect
in
the
Common
Law
,
that
Tutors
were
not
assigned
to
such
persons
;
he
answereth
,
that
our
Law
hath
given
the
custody
both
of
them
and
their
Lands
to
the
King
,
which
is
directly
contrary
to
his
own
Opinion
in
his
where
paraphrasing
upon
the
fourth
Chapter
of
which
prohibits
Wast
in
the
Land
of
Wards
,
from
thence
he
inferrs
that
at
that
time
the
King
had
no
Prerogative
to
entitle
him
to
the
Lands
of
Ideots
,
for
if
he
had
,
that
Act
would
have
as
well
provided
against
Wast
in
their
Lands
as
in
those
of
Wards
:
He
farther
adds
that
the
Guardianship
of
Ideots
did
belong
to
the
Lords
according
to
the
course
of
the
Common
Law
.
Be
it
how
it
will
,
't
is
clear
by
all
the
Books
that
both
by
the
Common
and
Civil
Law
their
Acts
are
void
;
and
my
Lord
esteemed
it
as
a
very
unreasonable
thing
that
they
should
not
be
avoided
even
during
the
life
of
the
Party
himself
;
but
it
was
never
yet
denied
that
they
may
be
avoided
after
his
death
by
his
Heir
or
Executor
,
and
by
parity
of
reason
the
Law
will
prevent
Strangers
from
being
prejudiced
by
such
Acts.
There
is
an
Objection
,
that
some
Acts
done
by
Ideots
are
unavoidable
,
as
Fines
levyed
by
them
,
'T
is
true
,
such
are
not
to
be
avoided
,
not
because
they
are
good
in
themselves
,
but
the
reason
is
,
because
they
are
upon
Record
,
against
which
the
Law
will
not
suffer
any
Averment
to
be
made
,
presuming
that
the
Courts
and
Iudges
in
would
not
admit
an
Ideot
or
Infant
to
levy
a
Fine
.
This
being
therefore
a
void
Surrender
by
a
person
the
Estate
is
still
in
the
Surrenderor
,
and
so
the
contingent
Remainder
upon
his
death
is
well
attached
in
the
Lessor
of
the
Plaintiff
But
supposing
't
is
not
void
,
yet
there
will
be
left
in
to
support
the
Contingency
;
and
to
prove
this
the
Case
of
was
relied
on
,
which
was
this
,
was
Tenant
for
Life
the
Remainder
in
Tail
to
his
first
Son
,
the
Remainder
to
for
Life
,
the
Remainder
to
his
first
,
second
and
third
Sons
in
Tail
.
accepted
a
Fine
from
who
had
then
a
Son
born
,
then
he
made
a
Feoffment
,
and
afterwards
had
another
Son
born
His
eldest
Son
died
without
Issue
,
and
it
was
adjudged
that
the
contingent
Remainder
to
his
second
Son
was
not
destroyed
by
this
Feoffment
,
because
it
was
preserved
by
the
right
of
Entry
,
which
his
elder
Brother
had
at
the
time
it
was
made
.
If
this
Surrender
,
is
only
voidable
then
whether
claiming
by
a
collateral
Title
can
avoid
it
?
It
was
argued
that
he
may
,
for
it
would
be
absurd
,
that
he
should
have
a
Right
to
the
Remainder
,
and
yet
have
no
Remedy
to
recover
it
.
My
Lord
tells
us
that
there
are
four
sorts
of
Privities
.
In
Bloud
,
as
Heir
In
Representation
,
as
Executor
In
Estate
,
as
Donee
in
Tail
,
the
Reversion
or
Remainder
in
Fee
.
In
Tenure
,
as
Lord
by
Escheat
.
He
affirms
that
the
two
first
may
shew
the
Disability
of
their
Ancestor
and
Testator
,
and
avoid
their
Grants
.
'T
is
true
,
in
the
third
Article
he
is
of
Opinion
that
Privies
in
Estate
shall
not
avoid
the
Acts
of
their
Ancestors
,
and
he
puts
the
Case
of
a
Donee
in
Tail
making
a
Feoffment
in
Fee
and
dying
without
Issue
,
the
Donor
shall
not
enter
,
because
no
Right
did
accrew
to
him
by
the
death
of
the
Donee
,
there
being
only
a
Privity
of
Estate
between
them
.
But
this
Opinion
is
denied
to
be
Law
by
Iustice
in
his
Argument
of
the
Case
between
who
said
that
the
Donor
might
enter
,
because
otherwise
he
would
be
without
remedy
,
for
he
could
not
maintain
a
because
the
Feoffment
made
by
the
was
no
Discontinuance
Besides
,
't
is
not
possible
there
should
be
any
Privity
in
Blood
between
the
Donee
in
Tail
and
the
Reversioner
in
Fee
,
so
that
Article
must
be
intended
where
they
are
Strangers
in
Blood
and
Privies
in
Estate
,
which
doth
not
at
all
concern
the
Case
in
question
,
because
is
privy
in
Blood
to
his
Father
,
who
made
the
Surrender
;
and
my
Lord
tells
us
in
the
first
Article
of
his
distinction
,
that
such
a
Privy
may
avoid
the
Acts
of
his
Ancestor
.
It
may
be
objected
that
this
distinction
was
not
then
the
Iudgment
of
the
Court
;
for
it
was
not
material
to
the
Point
in
Issue
,
which
was
no
more
than
thus
,
gave
Bond
to
and
exhibited
his
Bill
in
the
Court
of
Requests
to
be
relieved
against
it
,
because
at
the
time
of
the
sealing
and
delivery
thereof
he
was
But
the
like
distinction
was
made
in
's
Case
many
years
afterwards
which
was
thus
being
seised
of
Lands
held
of
the
Queen
in
Soccage
devised
the
same
to
his
Bastard
Child
and
her
Heirs
,
she
during
her
made
a
Feoffment
thereof
to
another
,
and
died
in
her
Nonage
without
Issue
;
the
Question
then
was
,
whether
that
Feoffment
should
prevent
the
Queen
of
the
Escheat
?
And
adjudged
it
should
not
.
In
which
Case
it
was
held
that
shall
take
advantage
of
the
disabilities
of
their
Ancestors
,
as
if
an
Infant
who
is
seised
in
Fee
maketh
a
Feoffment
and
afterwards
dieth
,
his
Heir
may
enter
and
avoid
it
.
The
Law
is
the
same
in
the
Case
of
one
as
in
that
of
an
Infant
,
as
to
the
avoiding
of
the
Acts
of
their
Ancestors
;
so
that
Mr.
being
privy
in
Blood
according
to
my
Lord
Opinion
in
those
Cases
shall
avoid
the
Acts
of
his
Father
,
he
being
at
the
executing
of
this
Surrender
.
If
it
should
be
objected
,
that
this
part
of
the
distinction
ought
to
be
taken
restrictively
,
and
must
be
tied
up
to
such
an
Heir
at
Law
,
who
takes
an
immediate
possession
by
descent
from
his
Ancestor
;
the
Answer
is
,
that
if
this
Surrender
is
avoided
Mr.
will
take
by
immediate
descent
from
his
Father
;
for
though
nothing
but
a
Reversion
in
Fee
descended
to
him
,
yet
he
is
a
compleat
Heir
.
But
after
all
,
this
distinction
made
by
my
Lord
is
founded
upon
no
manner
of
Authority
;
't
is
only
his
extrajudicial
Opinion
;
for
there
is
no
reason
to
be
given
why
Privies
in
Estate
should
not
avoid
such
Acts
done
by
their
Ancestors
as
well
as
Privies
in
Blood
,
because
the
Incapacity
of
the
Grantor
goes
to
both
.
Those
who
argued
on
the
other
side
held
that
the
Acts
of
Infants
and
persons
were
not
void
in
themselves
but
only
voidable
.
'T
is
true
,
some
Deeds
made
by
an
Infant
are
void
not
meerly
,
because
executed
by
him
,
for
some
are
good
,
and
those
only
are
void
which
are
made
to
his
prejudice
.
Such
also
are
void
which
give
Authority
to
a
third
person
to
do
an
Act
;
as
if
an
Infant
enter
into
a
Bond
,
and
give
it
to
a
Stranger
to
deliver
to
the
Obligee
,
when
he
shall
attain
his
full
Age
,
this
is
void
,
because
the
person
derived
his
Authority
from
an
Infant
who
by
reason
of
his
Nonage
could
not
give
such
a
Power
;
but
if
the
Infant
himself
had
delivered
the
Bond
to
the
Obligee
it
had
been
only
voidable
.
The
Father
of
the
Demandant
was
an
Infant
when
he
sold
his
Estate
,
his
Son
brought
the
Writ
against
the
Alienee
,
and
it
was
held
good
,
which
would
not
have
been
allowed
if
the
Grant
had
been
void
.
All
the
old
Authorities
prove
that
the
Acts
of
Infants
and
Ideots
are
not
void
but
voidable
.
If
an
Infant
is
bound
in
an
Obligation
't
is
not
void
,
for
he
may
agree
to
it
when
of
Age
;
he
cannot
plead
and
he
may
refuse
to
plead
his
Infancy
.
If
he
be
entituled
to
a
Term
for
years
,
and
maketh
a
Surrender
by
the
acceptance
of
a
new
Lease
,
't
is
good
if
't
is
for
his
advantage
,
either
by
the
lessening
of
the
Rent
or
the
encreasing
of
the
Term
;
but
if
he
hath
no
benefit
by
it
't
is
voidable
only
.
So
he
may
purchase
Lands
,
because
the
Law
intends
it
for
his
benefit
,
and
he
can
receive
no
damage
by
such
a
Purchase
,
for
he
may
either
perfect
or
avoid
it
at
his
full
Age
,
which
shews
that
such
Acts
are
not
voidable
but
only
voidable
as
the
Case
shall
require
.
The
Statute
of
That
Sheriffs
shall
take
no
Bonds
upon
an
Arrest
,
but
for
the
Appearance
of
the
Party
,
and
to
themselves
only
,
and
that
a
Bond
otherwise
taken
shall
be
(
that
is
)
not
in
its
self
,
but
by
pleading
the
Statute
,
for
't
is
not
to
be
avoided
by
pleading
So
upon
the
Statute
of
Additions
,
where
a
Man
is
outlawed
without
the
addition
of
his
condition
or
place
of
abode
in
the
original
Writ
,
such
Outlawry
shall
be
not
of
its
self
,
but
it
may
be
avoided
by
Writ
of
Error
,
In
like
manner
there
are
many
Authorities
to
prove
that
the
Acts
of
a
person
are
not
but
voidable
So
is
the
first
Resolution
in
's
Case
,
that
a
Deed
or
Feoffment
made
by
him
is
to
be
avoided
by
any
other
person
,
but
not
by
himself
.
Thus
stood
the
Law
in
the
time
of
For
in
an
Assize
the
Defendant
pleaded
that
the
Plaintiff
had
released
to
him
by
Deed
,
who
replied
that
at
the
time
of
the
making
of
the
Deed
,
he
was
The
Court
of
seemed
then
to
be
of
Opinion
that
the
Replication
was
not
good
,
which
shews
that
the
Deed
in
its
self
was
not
void
;
't
is
true
,
the
Assize
was
then
adjourned
,
because
that
Opinion
was
directly
against
the
which
is
,
that
the
Writ
of
may
be
brought
by
the
person
himself
notwithstanding
his
own
Alienation
.
But
this
hath
since
been
denied
to
be
Law
for
in
Debt
upon
Bond
the
Defendant
pleaded
that
he
was
and
upon
a
Demurrer
the
Plea
was
over-ruled
.
And
of
this
Opinion
was
Sir
Chief
Iustice
of
the
which
was
long
before
the
Book
of
Assize
.
So
the
Law
continued
till
the
Reign
of
that
the
person
himself
could
not
avoid
his
own
Feoffment
either
by
Entry
or
Action
.
The
Writs
import
the
same
thing
that
Acts
done
by
them
are
not
void
,
for
the
first
recites
that
the
Ideot
and
the
other
,
that
the
Lunatick
Now
if
their
Acts
had
been
void
then
they
cannot
be
supposed
either
to
alien
or
lease
their
Lands
which
shews
that
such
Acts
are
only
voidable
.
And
as
a
farther
Argument
to
enforce
this
,
the
Statute
was
mentioned
,
which
gives
the
Custody
of
the
Ideots
Lands
to
the
King
during
their
Lives
,
provided
that
afterwards
it
be
given
to
their
right
Heirs
Now
to
what
purpose
were
these
Words
added
if
such
an
Alienation
was
void
in
it self
?
Besides
,
the
Cases
of
Ideots
(
mentioned
on
the
other
side
)
and
Lunaticks
are
not
parellel
;
for
an
Ideot
hath
a
different
incapacity
from
one
't
is
perpetual
in
an
Ideot
;
and
for
that
reason
the
Law
gives
the
King
an
Interest
in
him
.
But
a
person
may
recover
his
Senses
he
may
purchase
Lands
,
may
grant
a
Rent-charge
out
of
his
Estate
,
and
shall
not
plead
his
insanity
to
defeat
his
own
act
.
If
therefore
this
Surrender
was
not
void
at
the
time
of
the
execution
thereof
,
but
voidable
only
during
the
Life
of
the
Surrenderor
by
office
found
;
then
the
Question
cannot
properly
be
,
whether
the
Lessor
of
the
Plaintiff
shall
avoid
it
,
for
that
would
be
to
revest
the
Estate
in
some
body
;
but
the
Surrender
was
good
,
and
the
Estate
for
Life
was
utterly
determined
,
so
that
nothing
being
left
to
support
the
contingent
Remainders
,
those
are
also
destroied
.
And
to
prove
this
's
,
Case
was
relied
on
,
which
was
was
seised
in
Fee
of
the
Manor
of
and
having
Issue
and
three
other
Sons
,
made
a
Feoffment
to
the
use
of
himself
and
his
Heirs
,
on
the
Body
of
then
the
Wife
of
Mr.
to
be
begotten
,
and
for
default
of
such
Issue
,
then
to
the
use
of
his
last
Will
,
for
ten
years
,
and
after
the
Expiration
of
that
Term
,
then
to
his
Feoffees
and
their
Heirs
,
during
the
Life
of
Remainder
to
the
Issue
Male
of
in
Tail
,
with
like
Remainder
to
his
other
Sons
,
Remainder
to
his
own
right
Heirs
.
He
died
without
Issue
by
Mrs.
But
before
had
any
Son
born
,
the
said
Feoffees
made
a
Feoffment
of
the
Land
in
Fee
,
without
any
consideration
;
afterwards
had
Issue
two
Sons
Now
the
Vses
limited
by
the
Feoffment
of
Sir
being
only
contingent
to
the
Sons
of
and
they
not
being
born
when
the
second
Feoffment
was
made
to
their
Father
;
the
Question
now
was
,
whether
they
shall
be
destroied
by
that
Feoffment
,
before
the
Sons
had
a
Being
in
Nature
,
or
whether
they
shall
arise
out
of
the
Estate
of
the
Feoffees
after
their
Births
?
And
it
was
adjudged
in
the
Chamber
,
that
the
last
Feoffment
had
divested
all
the
precedent
Estates
,
and
likewise
the
Vses
whilst
they
were
contingent
,
and
before
they
had
an
existence
;
and
that
if
the
Estate
for
Life
which
had
in
those
Lands
had
been
determined
by
his
death
,
before
the
birth
of
any
Son
,
the
future
Remainder
had
been
void
,
because
it
did
not
vest
whilst
the
particular
Estate
had
a
being
,
or
that
it
determined
So
in
this
Case
Mr.
cannot
have
any
future
Right
of
Entry
,
for
he
was
not
born
when
the
Surrender
was
made
,
so
that
the
contingency
is
for
ever
gone
.
Suppose
a
Feoffment
in
Fee
,
to
the
use
of
himself
and
his
Wife
,
and
to
the
Heirs
of
the
Survivor
.
The
Husband
afterwards
makes
another
Feoffment
of
the
same
Lands
,
and
dies
,
and
the
Wife
enters
,
the
Fee
shall
not
vest
in
her
,
by
this
Entry
,
for
she
had
no
right
,
the
Husband
has
destroyed
the
contingent
use
by
the
last
Feoffment
,
so
that
it
could
not
accrew
to
her
at
the
time
of
his
death
.
Nay
,
tho'
the
particular
Estate
in
some
Cases
may
revive
,
yet
if
the
contingency
be
once
destroyed
,
it
shall
never
arise
again
.
As
where
the
Testator
being
seized
in
Fee
of
Houses
,
devised
the
inheritance
thereof
to
such
Son
his
Wife
should
have
(
after
her
Life
)
if
she
baptized
him
by
his
Christian
and
Sir-Name
,
and
if
such
Son
dye
before
he
attain
the
Age
of
years
,
then
to
the
right
Heirs
of
the
Devisor
.
He
died
without
Issue
,
the
Widow
married
again
,
then
the
Brother
and
Heir
of
the
Testator
,
before
the
birth
of
any
Son
,
conveyed
the
Houses
thus
:
To
the
Husband
and
Wife
,
and
to
their
Heirs
,
and
levied
a
Fine
to
those
uses
.
Afterwards
she
had
a
Son
baptised
by
the
Testator's
Christian
and
Sir-Name
.
Then
the
Husband
and
Wife
sold
the
Houses
to
one
and
his
Heirs
,
and
levied
a
Fine
to
those
Vses
.
It
was
adjudged
that
by
the
Conveyance
of
the
Reversion
by
the
Brother
and
Heir
of
the
Testator
to
the
Baron
and
Feme
,
before
the
Birth
of
the
Son
,
her
Estate
for
Life
was
merged
;
and
tho'
by
reason
of
her
Coverture
she
might
waive
the
Joint-tenancy
,
and
reassume
the
Estate
for
Life
,
yet
that
being
once
merged
,
the
contingent
Remainders
are
all
destroied
.
The
Grants
of
Infants
,
and
of
persons
are
parallel
both
in
Law
and
Reason
,
and
there
are
express
Authorities
that
a
Surrender
made
by
an
Infant
is
void
,
therefore
this
Surrender
by
a
person
is
likewise
void
If
an
Infant
grants
a
Rent-charge
out
of
his
Estate
,
't
is
not
voidable
,
but
void
;
for
if
the
Grantee
should
distrain
for
the
Rent
,
the
Infant
may
have
an
Action
of
Trespass
against
him
.
In
all
these
Cases
which
have
been
cited
,
where
't
is
held
that
the
Deeds
of
Infants
are
not
void
but
voidable
,
the
meaning
is
,
that
cannot
be
pleaded
,
because
they
have
the
form
,
though
not
the
Operations
of
Deeds
,
and
therefore
are
not
void
upon
that
account
,
without
shewing
some
special
matter
to
make
them
of
no
efficacy
.
Therefore
if
an
Infant
maketh
a
Letter
of
Attorny
though
't
is
void
in
it self
,
yet
it
shall
not
be
avoided
by
pleading
but
by
shewing
his
Infancy
Some
have
endeavoured
to
distinguish
between
a
Deed
,
which
giveth
only
authority
to
do
a
thing
,
and
such
which
conveys
an
interest
by
the
delivery
of
the
Deed
it self
,
that
the
first
is
void
,
and
the
other
voidable
.
But
the
reason
is
the
same
to
make
them
both
void
only
where
a
Feoffment
is
made
by
an
Infant
't
is
voidable
,
because
of
the
solemnity
of
the
Conveyance
.
Now
if
had
made
a
Feoffment
in
Fee
,
there
had
still
remained
in
him
such
a
Right
which
would
have
supported
this
Remainder
in
Contingency
.
This
Surrender
is
therefore
void
,
and
all
persons
may
take
advantage
of
it
.
Afterwards
a
Writ
of
Error
was
brought
to
reverse
this
Iudgment
in
the
House
of
Lords
,
but
it
was
affirmed
.
THE
Statute
of
Limitations
is
that
if
any
person
be
entituled
to
an
Action
,
and
shall
be
an
Infant
,
Feme
Covert
,
Imprisoned
,
or
that
then
he
shall
bring
the
Action
at
full
Age
,
Discovert
,
of
saue
Memory
,
at
large
,
and
The
Plaintiff
brought
an
to
which
the
Defendant
pleaded
The
Plaintiff
replied
that
the
Defendant
so
that
he
could
not
prosecute
any
Writ
against
him
,
And
upon
a
Demurrer
Serjeant
argued
that
the
Plaintiff
was
not
barred
by
the
Statute
which
was
made
to
prevent
Suits
,
by
limiting
personal
Actions
to
be
within
a
certain
time
,
and
it
cannot
be
extended
in
favour
of
the
Defendant
,
who
was
a
Debtor
and
beyond
Sea
,
because
't
is
incertain
whether
he
will
return
or
not
;
and
therefore
there
is
no
occasion
to
begin
a
Suit
till
his
return
.
'T
is
true
,
the
Plaintiff
may
file
an
Original
,
and
Outlaw
the
Defendant
,
and
so
seise
his
Estate
,
but
no
Man
is
compelled
by
Law
to
do
an
act
which
is
fruitless
when
't
is
done
,
and
such
this
would
be
,
for
if
the
Plaintiff
should
file
an
Original
,
't
is
probable
the
Defendant
may
never
return
,
and
then
if
the
Debt
was
or
upwards
,
he
would
be
at
a
great
Expence
to
no
purpose
,
or
if
the
Party
should
return
,
he
may
reverse
it
by
Error
.
'T
is
a
new
way
invented
for
the
payment
of
Debts
,
for
if
the
Debtors
go
beyond
Sea
and
stay
there
six
years
,
their
Debts
would
by
this
means
be
all
paid
.
The
words
of
the
Statute
do
not
extend
to
this
Case
,
for
the
Proviso
is
,
when
the
cause
of
Action
doth
accrew
,
that
then
he
have
shall
liberty
to
continue
it
at
his
return
;
yet
't
is
within
the
equity
of
Law
for
him
to
bring
his
Action
who
cannot
be
sued
'till
then
.
That
Statutes
have
been
expounded
according
to
Equity
,
is
not
now
a
new
Position
for
Constructions
have
been
made
according
to
the
sense
and
meaning
,
and
not
according
to
the
Letter
of
many
Statutes
.
As
the
Statute
of
which
gives
an
Action
of
Debt
against
a
Goaler
for
an
Escape
,
and
that
yet
by
the
Equity
thereof
it
hath
been
adjudged
that
a
Bill
of
Debt
will
lie
.
For
the
Statute
of
gives
the
like
Action
against
the
for
the
Escape
of
a
Prisoner
in
Execution
,
which
by
Construction
hath
been
adjudged
to
extend
to
all
Goalers
and
Sheriffs
.
If
this
Statute
should
not
be
expounded
according
to
Equity
,
then
if
the
Plaintiff
himself
should
be
beyond
Sea
six
years
after
the
cause
of
Action
,
and
die
there
,
his
Executor
or
Administrator
cannot
sue
for
a
Debt
.
This
Case
is
out
of
the
Equity
of
the
Statute
,
which
provides
a
remedy
but
not
when
the
is
there
,
it
was
never
intended
to
make
any
Provision
for
him
,
since
the
Plaintiff
might
file
an
Original
,
and
sue
him
to
the
Outlawry
.
But
Iustice
making
some
doubt
AN
Information
was
brought
upon
the
Statute
of
the
for
exercising
the
Trade
of
a
not
being
an
Apprentice
to
the
same
,
and
likewise
for
setting
people
to
work
at
that
Trade
,
not
having
served
an
Apprentiship
to
it
.
Vpon
Not
Guilty
pleaded
,
the
Iury
found
a
special
Verdict
to
this
purpose
,
That
the
Defendant
was
a
Merchant
,
who
Exported
Cloath
to
and
that
for
the
space
of
a
Month
,
he
had
emploied
Men
in
his
House
,
in
the
Trade
of
a
which
Men
had
been
educated
in
the
said
Mystery
for
the
space
of
years
,
that
he
provided
Materials
for
them
,
and
paid
them
weekly
Wages
,
but
that
he
himself
was
not
an
Apprentice
to
the
said
Trade
.
That
it
was
a
Trade
at
the
time
of
the
making
of
the
Statute
,
The
Question
was
,
Whether
this
should
be
accounted
exercising
of
a
Trade
within
the
meaning
of
the
Statute
or
no
?
Those
who
argued
for
the
Plaintiff
said
,
that
true
it
is
,
any
Man
might
exercise
what
Trade
he
thought
fit
at
the
Common
Law
,
but
this
confusion
had
been
remedied
by
several
Statutes
.
The
first
is
the
Statute
of
that
Merchants
shall
not
engross
Goods
to
enhance
the
Prices
,
nor
use
but
one
sort
of
Merchandise
.
Afterwards
in
the
the
former
Statute
was
repealed
,
and
liberty
given
to
Merchants
only
to
use
what
Merchandise
they
would
.
Then
comes
the
Statute
of
Queen
and
the
Remedies
intended
by
that
and
the
former
Acts
were
,
The
restraining
of
ignorant
pretenders
to
Trade
.
To
make
a
distinction
of
Trades
,
and
to
fit
them
to
different
ranks
of
Men.
To
encourage
those
who
had
undergone
an
Apprentiship
,
by
prohibiting
others
to
exercise
their
Trades
.
The
words
of
this
latter
Statute
are
,
nor
set
any
person
on
work
hired
by
the
Year
'T
is
plain
by
this
Law
,
that
he
who
cannot
use
a
Mystery
himself
,
is
prohibited
to
employ
other
Men
in
that
Trade
,
for
if
this
should
be
allowed
,
then
the
care
which
hath
been
taken
to
keep
up
Mysteries
,
by
erecting
Guilds
and
Fraternities
,
would
signifie
little
.
In
the
Case
of
upon
this
Statute
,
it
was
proved
that
the
Defendant
emploied
none
but
in
that
Trade
;
yet
not
having
served
an
Apprentiship
himself
,
the
Plaintiff
had
a
Verdict
.
It
was
insisted
on
the
Defendants
behalf
that
as
this
Offence
is
laid
in
the
Information
,
it
was
not
within
the
first
branch
of
that
Clause
in
the
Statute
;
for
no
Man
will
say
that
when
the
Defendant
sets
other
persons
to
work
such
employing
them
was
an
exercising
the
Trade
within
the
first
branch
of
that
Paragraph
.
Neither
is
it
within
the
second
Branch
,
the
meaning
whereof
is
,
that
no
person
shall
be
employed
but
such
as
have
served
an
Apprenticeship
,
&c.
Now
the
person
who
sets
such
People
to
work
is
not
punishable
by
this
Law
,
but
the
Men
themselves
who
do
work
not
being
qualified
,
and
those
are
not
punishable
in
this
Case
,
because
the
Verdict
hath
found
that
they
were
Apprentices
and
had
served
seven
years
to
the
Trade
.
'T
is
not
material
to
say
that
the
Men
thus
employed
by
the
Defendant
in
this
Trade
are
his
Servants
,
and
that
by
their
working
the
Company
of
Clothworkers
may
be
damnified
,
for
the
Act
is
not
restrained
to
particular
Companies
,
but
taketh
care
in
general
that
the
work
should
be
well
done
.
No
Man
will
say
that
a
Merchant
is
within
this
Statute
,
for
the
Preamble
it self
shews
't
is
for
the
Reformation
of
Trades
and
Manual
Occupations
;
so
that
as
a
Merchant
is
not
within
the
Letter
,
neither
is
he
within
the
meaning
of
the
Law
,
because
he
is
of
a
superiour
Order
and
Degree
of
Men.
The
chief
design
therefore
of
this
Law
being
that
unskilful
Men
should
not
employ
themselves
in
Trades
,
and
the
Defendant
having
set
none
to
work
but
such
who
were
of
that
Trade
,
and
Artists
in
it
,
the
meaning
of
the
Act
is
fully
pursued
,
and
no
injury
is
done
to
any
person
.
Besides
,
it
doth
not
appear
by
this
Verdict
that
any
thing
was
done
by
the
Defendant
but
in
his
own
Family
,
and
probably
it
might
be
for
their
use
,
and
then
't
is
no
offence
.
But
if
it
is
a
Crime
in
the
Defendant
,
then
all
the
Petty-Chapmen
in
are
within
this
Statute
,
for
they
use
several
goods
belonging
to
particular
Trades
,
and
few
of
them
have
been
Apprentices
to
any
Trade
.
It
was
said
by
some
of
the
Council
who
now
argued
this
Case
,
that
they
had
formerly
attended
my
Lord
upon
the
like
matter
,
whose
Opinion
,
was
that
such
Petty
Chapmen
were
not
within
the
Statute
,
but
that
they
were
warranted
by
the
Custom
of
those
places
where
they
lived
.
Afterwards
in
Iudgment
was
given
for
the
Plaintiff
by
the
Opinion
of
three
Iudges
.
The
Questions
are
two
Whether
this
is
a
setting
up
of
a
Trade
within
the
express
words
of
the
Statute
.
Whether
the
working
of
these
Cloths
in
the
Defendant's
House
will
be
using
a
Trade
,
It
cannot
be
denied
but
that
at
the
Common
Law
a
Man
might
exercise
what
Trade
he
would
,
therefore
this
Statute
is
penned
in
the
Negative
,
to
prevent
many
inconveniences
which
happened
before
the
making
of
this
Law
.
Some
Authorities
there
are
where
Informations
have
been
brought
upon
this
Statute
,
and
the
Defendants
have
pleaded
the
the
Custom
of
for
a
Man
Educated
in
one
Trade
,
to
exercise
another
;
and
upon
Demurrer
such
Pleas
have
been
over-ruled
;
but
reason
in
this
Case
is
the
best
Authority
.
Iourny-men
who
work
for
Hire
cannot
be
within
the
meaning
of
this
Statute
,
but
the
Defendant
by
employing
such
,
had
an
influence
upon
the
Trade
,
and
so
't
is
found
,
That
he
provided
Materials
,
and
paid
the
Workmen
,
and
therefore
he
(
and
not
the
Master
workman
,
who
is
but
a
Iourny-man
)
is
the
person
who
did
exercise
the
Trade
,
not
being
an
Apprentice
;
the
management
was
for
his
Profit
,
the
Workmen
had
no
more
but
their
Wages
,
and
it
would
be
very
mischievous
if
the
Statute
should
be
otherwise
construed
.
A
Widow
shall
not
exercise
her
Husbands
Trade
,
unless
she
is
enabled
by
the
Custom
of
the
place
;
and
possibly
she
might
live
so
long
with
him
as
to
be
very
skilful
in
it
;
but
the
Act
being
penned
in
the
Negative
must
have
a
large
construction
,
and
therefore
an
Vsage
against
it
will
not
take
away
its
force
.
Paying
the
Wages
is
as
much
as
using
the
Trade
himself
;
't
is
properly
his
driving
the
Trade
by
the
Hands
and
Labour
of
his
Servants
:
And
it
seems
plain
by
the
Statute
of
that
this
may
be
done
,
for
that
Statute
Enacts
that
no
person
using
the
Mystery
of
by
himself
shall
exercise
the
Craft
of
a
which
shews
that
the
Trade
may
be
carried
on
by
Servants
and
Workmen
.
never
makes
his
own
Plate
,
he
only
provides
Materials
for
the
Workmen
,
but
yet
he
is
a
Trader
within
the
Statute
,
because
he
makes
profit
of
the
Plate
.
who
sells
Beer
,
Bread
in
his
House
is
not
within
this
Statute
,
because
't
is
part
of
his
Trade
to
provide
such
things
for
his
Guests
;
but
if
he
sells
any
quantities
out
of
Doors
,
he
is
then
within
the
reach
of
this
Law
,
which
ought
to
have
a
very
beneficial
construction
,
because
't
is
made
to
maintain
skilful
Men
in
Trades
,
which
is
for
the
publick
good
of
Mankind
.
'T
is
plain
,
that
he
who
useth
one
Trade
cannot
exercise
another
,
therefore
a
shall
not
make
his
own
Whéels
,
if
he
doth
,
't
is
exercising
the
Trade
of
a
and
so
of
the
Iron
and
Leather
,
and
the
other
Materials
which
make
up
a
Coach
.
In
Mr.
's
Reports
,
there
is
a
Case
of
an
Information
brought
upon
this
Statute
against
the
Defendant
being
a
for
dying
of
his
own
and
it
was
adjudged
for
him
that
't
is
part
of
his
Trade
;
but
this
is
but
a
single
Authority
,
and
many
have
been
against
it
since
that
time
.
At
the
Assises
in
the
like
Information
was
tryed
against
a
for
exercisng
the
Trade
of
a
was
insisted
on
,
that
it
was
part
of
his
Trade
,
for
he
fitted
the
for
his
use
in
making
of
Combs
;
but
there
was
a
Verdict
for
the
Plaintiff
,
for
it
was
held
to
be
an
exercising
of
the
Trade
of
an
Horner
;
and
the
Council
for
the
Defendant
who
were
learned
Men
did
acquiesce
under
that
Iudgment
.
He
who
is
a
Servant
,
who
undergoes
no
hazard
,
but
is
to
have
a
certain
reward
for
his
labour
doth
not
exercise
a
Trade
,
but
't
is
the
Master
who
emploies
him
,
who
hath
all
the
Profit
,
and
who
in
this
Case
sells
at
the
same
rate
as
if
he
paid
the
Clothworker
.
The
Statute
saith
&c.
Now
he
who
employs
Men
in
his
House
useth
the
Trade
,
For
suppose
a
Merchant
should
hire
Iourny-men
Shoemakers
to
work
in
his
House
for
the
Plantations
,
this
can
be
no
other
thing
than
the
exercising
of
the
Trade
of
a
Shoemaker
.
Private
usage
is
not
within
the
meaning
of
this
Law
,
but
if
what
is
done
be
for
profit
and
gain
,
and
not
confined
to
a
particular
Family
,
't
is
an
exercising
of
a
Trade
within
the
intention
of
this
Statute
.
If
the
Defendant
had
sold
these
Cloths
in
he
had
been
a
Draper
,
and
having
exported
them
he
is
a
Merchant
:
Wherefore
for
these
Reasons
Iudgment
was
given
for
the
Plaintiff
.
But
Iustice
was
of
another
Opinion
,
he
said
that
no
encouragement
was
ever
given
to
Prosecutions
upon
this
Statute
,
and
that
it
would
be
for
the
common
good
if
it
was
repealed
,
for
no
greater
punishment
can
be
to
the
Seller
than
to
expose
Goods
to
Sale
ill
wrought
,
for
by
such
means
he
will
never
sell
more
.
In
this
Case
there
is
no
inconvenience
to
the
Company
of
Clothworkers
,
because
that
Trade
is
a
manual
Occupation
for
hire
;
the
Master
Workman
is
the
person
who
useth
the
Trade
,
and
the
Defendant
hath
done
nothing
but
what
is
the
proper
work
of
a
Merchant
in
his
own
House
which
cannot
be
a
publick
use
of
the
Trade
.
The
intent
of
the
making
of
this
Statute
was
to
prevent
Idleness
,
and
that
there
might
be
generally
a
good
Manufacture
.
Now
the
Defendant
hath
well
answered
both
these
ends
,
for
he
hath
employed
Men
in
the
working
,
and
not
only
so
,
but
such
Men
who
were
bound
Apprentices
and
served
seven
years
in
that
very
Trade
,
such
who
could
work
well
and
to
whom
he
gave
good
Wages
.
'T
is
the
interest
of
a
Merchant
that
his
Cloth
be
well
wrought
,
but
the
Clothworker
careth
not
how
't
is
done
so
he
hath
his
Wages
;
and
by
this
care
and
industry
of
the
Defendant
that
Trade
which
was
almost
lost
abroad
is
,
now
come
into
Reputation
again
.
ERror
to
reverse
a
Iudgment
in
an
inferior
Court
at
for
the
taking
of
a
Cow
.
The
Defendant
made
Cognizance
as
Bailiff
to
Sir
setting
forth
that
before
the
taking
,
was
seised
in
Fee
of
the
Mannor
of
of
which
the
was
parcel
,
and
for
that
the
Cow
was
there
Damage
Feasant
he
took
it
,
The
Plaintiff
in
barr
to
the
Avowry
confesseth
,
Peter
Warburton
&c.
but
that
before
that
time
Sir
his
Father
,
was
seised
of
the
said
Mannor
,
and
likewise
of
one
Mesuage
in
Fee
,
and
being
so
seised
made
a
Lease
thereof
for
three
Lives
,
for
the
Life
of
the
Father
,
and
for
the
Lives
of
his
two
Sons
,
that
one
of
them
was
dead
,
and
that
the
other
entred
and
was
and
let
the
Land
to
the
Plaintiff
until
,
The
Defendant
demurred
to
this
Replication
and
had
Iudgment
.
The
Matter
now
in
Debate
was
upon
Exceptions
to
the
Barr.
For
want
of
a
Traverse
that
Sir
was
seised
in
Fee
at
the
time
of
the
taking
.
For
want
of
a
sufficient
Title
alledged
in
the
Plaintiff
,
for
that
by
the
Statue
of
Frauds
all
Occupancy
is
now
taken
away
.
It
was
argued
that
the
Replication
was
good
without
a
Traverse
,
for
where
the
Plaintiff
hath
confessed
and
avoided
,
as
he
hath
done
here
;
if
he
had
traversed
likewise
,
that
would
have
made
his
Replication
double
.
He
confesseth
that
Sir
was
seised
in
Fee
of
the
Mannor
,
but
afterwards
the
was
expresly
alledged
to
be
in
Sir
the
Father
,
and
that
the
place
where
was
parcel
thereof
,
which
is
a
Confession
and
an
Avoidance
.
The
Avowant
should
have
traversed
this
Lease
,
but
the
Traverse
of
the
Plaintiff
upon
him
had
made
it
a
worse
Issue
.
Agreeable
to
this
Case
in
reason
is
that
which
was
adjudged
in
this
Court
in
It
was
in
Trespass
the
Defendant
pleaded
that
the
was
the
sole
and
justified
by
his
Command
The
Plaintiff
replyed
that
the
Land
was
parcel
of
the
Mannor
of
and
that
was
seised
in
Fee
,
and
levied
a
Fine
to
the
use
of
himself
and
Wife
for
their
Lives
,
the
Remainder
to
years
if
he
lived
so
long
,
who
after
the
death
of
the
Cognizors
entred
and
made
a
Lease
to
the
Plaintiff
.
And
upon
a
Demurrer
to
this
Replication
the
same
Exception
was
then
taken
as
now
,
that
the
Plaintiff
did
not
confess
and
avoid
the
John
;
but
the
Plaintiff
had
Iudgment
,
for
the
Barr
being
at
large
and
the
Title
in
the
Replication
being
likewise
so
too
,
the
Plaintiff
may
claim
by
a
Lease
for
years
without
answering
the
Freehold
.
The
not
concluding
with
a
Traverse
is
but
a
form
,
and
the
Court
will
proceed
according
to
the
Right
of
the
Cause
without
such
form
't
is
a
defect
which
after
a
Ioinder
in
Demurrer
is
expresly
helped
by
the
Statute
of
Ieofails
,
which
enables
the
Court
to
amend
defects
and
want
of
Forms
other
than
such
for
which
the
party
hath
demurred
.
The
Case
of
is
in
point
's
Case
it
was
in
the
Defendant
made
Cognizance
as
Bailiff
to
for
that
the
place
where
was
so
many
Acres
parcel
of
a
Mannor
,
was
seised
thereof
in
Fee
,
who
granted
a
Rent
Charge
out
of
it
to
Sir
in
Fee
,
who
sold
it
to
The
Plaintiff
in
Barr
to
the
Conusance
replied
,
and
confessed
that
the
Land
was
parcel
of
the
Mannor
,
and
that
prout
but
that
long
before
the
&c.
one
was
seised
thereof
in
Fee
,
who
devised
it
to
for
a
Term
of
years
,
which
Term
by
several
Assignments
came
to
who
gave
the
Plaintiff
leave
to
put
in
his
Cattel
,
And
upon
a
Demurrer
to
this
Replication
an
Exception
was
taken
to
it
,
for
that
the
Plaintiff
did
not
shew
how
the
and
Grant
of
to
Sir
was
avoided
;
for
having
confessed
a
in
Fee
that
shall
be
intended
a
Fee
in
possession
,
and
notwithstanding
he
had
afterwards
set
forth
a
Lease
for
years
in
by
whom
it
was
devised
to
&c.
and
so
to
it
may
be
intended
that
the
Grantor
was
only
seised
in
Fee
of
the
Reversion
,
and
therefore
the
Plaintiff
ought
to
have
traversed
the
But
three
Iudges
seemed
to
encline
that
the
Replication
was
good
,
and
that
the
Plaintiff
had
well
confessed
and
avoided
that
in
Fee
which
was
alledged
by
the
Defendant
,
for
he
had
shewed
a
Lease
for
years
precedent
to
the
Defendants
Title
,
and
which
was
not
chargeable
with
the
Rent
;
and
his
pleading
that
the
Grantor
was
seised
in
Fee
must
be
only
of
a
Reversion
expectant
upon
that
Lease
.
But
if
his
Confession
that
was
seised
in
Fee
shall
be
intended
a
in
Fee
in
possession
,
yet
the
Replication
is
good
in
substance
,
because
the
Charge
against
the
Plaintiff
is
avoided
by
a
former
Estate
,
and
in
such
Case
't
is
not
necessary
to
take
a
Traverse
.
But
after
all
it
was
held
that
if
it
be
a
defect
,
't
is
but
want
of
a
Form
,
which
is
aided
by
the
Statute
,
and
that
is
this
very
Case
now
in
question
.
The
want
of
a
Traverse
seldom
makes
a
Plea
ill
in
substance
,
but
a
naughty
Traverse
often
makes
it
so
,
because
the
adversary
is
tied
up
to
that
which
is
material
in
it self
,
so
that
he
cannot
answer
what
is
proper
and
material
;
and
therefore
in
upon
a
Lease
made
by
the
Defendant
pleaded
that
before
had
any
thing
to
do
was
seised
in
Fee
,
after
whose
death
the
Land
descended
to
his
Heir
,
and
that
entred
and
was
seized
by
Abatement
.
The
Plaintiff
replied
and
confessed
the
but
saith
that
he
devised
it
in
Fee
to
who
entred
was
seized
by
Abatement
,
and
upon
a
Demurrer
this
was
held
to
be
an
ill
Traverse
,
for
the
Plaintiff
had
confessed
the
and
avoided
it
by
the
Devise
,
and
therefore
ought
not
to
have
traversed
the
Abatement
,
for
having
derived
a
good
Title
by
the
Devise
to
his
Lessor
,
't
is
an
Argument
that
he
entred
lawfully
,
and
it
was
that
alone
which
was
issuable
,
and
not
the
Abatement
;
therefore
it
was
ill
to
traverse
that
,
because
it
must
never
be
taken
but
where
the
thing
traversed
is
issuable
.
Then
it
was
said
that
the
Conusance
was
informal
,
because
the
Avowant
should
have
said
that
the
contains
so
many
Acres
of
Ground
,
he
only
saith
that
it
was
parcel
of
a
Mannor
;
besides
,
he
neither
prays
Damages
,
nor
As
to
the
Point
it
was
said
that
the
Statute
of
Frauds
doth
not
take
away
all
Occupancy
,
it
only
appoints
who
shall
be
a
special
Occupant
.
Besides
,
here
is
a
Title
within
the
Statute
,
for
a
Lease
for
Lives
is
personal
Assets
,
so
is
a
Term
in
the
Hands
of
an
and
in
this
Case
the
entring
of
one
Brother
after
the
death
of
the
other
made
him
an
and
it
was
never
yet
doubted
,
but
that
there
may
be
such
an
Executor
of
a
Term.
Whereupon
it
was
concluded
that
the
Barr
was
good
,
both
as
to
the
Form
and
Title
set
forth
,
but
no
Iudgment
was
then
given
.
THE
Plaintiff
declared
that
the
Defendant
and
seven
other
persons
were
Proprietors
of
a
Vessel
,
in
which
they
used
to
carry
Goods
for
a
reasonable
hire
from
Port
to
Port.
That
he
had
loaded
the
said
Vessel
with
Boards
which
were
agreed
to
be
safely
transported
from
and
that
the
Defendant
by
neglect
suffered
them
to
be
dampnified
,
Vpon
Not-Guilty
pleaded
a
special
Verdict
was
found
,
the
substance
whereof
was
,
That
the
Plaintiff
did
load
the
Ship
with
Boards
,
of
which
Ship
the
Defendant
and
seven
other
persons
were
Proprietors
;
that
the
said
Ship
did
usually
carry
Goods
for
hire
;
that
the
Plaintiff
delivered
the
Goods
to
who
was
Master
of
the
Vessel
,
and
that
they
were
loaded
therein
,
but
that
none
of
the
Proprietors
were
present
.
That
there
was
no
actual
Contract
between
the
Plaintiff
and
the
Proprietors
,
or
any
Negligence
in
them
,
but
the
Boards
were
dampnified
by
the
neglect
of
the
said
Master
,
The
Questions
upon
this
special
Verdict
were
two
:
Whether
this
Action
would
lie
against
the
Defendant
alone
as
one
of
the
Proprietors
,
or
whether
it
must
be
brought
against
them
all
?
If
the
Action
ought
to
be
brought
against
them
all
,
then
Not-Guilty
was
not
a
proper
Plea
,
because
the
Defendant
ought
to
have
pleaded
in
Abatement
that
the
rest
of
the
Owners
the
Defendant
It
was
argued
for
the
Plaintiff
that
the
Action
may
be
well
brought
against
any
single
person
of
the
Proprietors
,
because
't
is
grounded
upon
a
as
well
as
upon
a
Contract
,
which
in
this
Case
is
only
an
Inducement
to
the
Action
,
and
therefore
the
Plaintiff
hath
liberty
to
bring
it
either
the
one
way
or
the
other
,
for
't
is
both
joint
and
several
.
So
it
is
in
where
a
Man
declares
that
he
was
possessed
of
such
Goods
,
that
the
Defendant
found
them
and
promised
to
deliver
them
,
but
converted
them
to
his
own
use
;
the
Contract
is
but
Iuducement
,
for
the
cause
of
Action
arises
upon
the
Conversion
.
This
is
a
remedy
given
by
the
construction
of
the
Law
,
and
if
so
,
it
must
be
certain
and
effectual
to
all
intents
;
and
therefore
it
hath
been
ruled
in
an
Action
brought
against
a
common
Carrier
upon
the
in
Law
and
likewise
upon
the
that
the
Declaration
was
ill
,
and
though
the
Plaintiff
had
a
Verdict
,
yet
the
Iudgment
was
arrested
,
because
he
had
declared
both
ways
.
Agreeable
to
this
was
that
Iudgment
which
was
given
upon
the
Statute
of
for
not
setting
out
of
Tythes
in
an
Action
of
Debt
brought
against
two
Tenants
in
Common
,
it
happened
that
one
of
them
set
out
the
Tythes
and
the
other
carried
them
away
,
and
because
the
Action
was
brought
against
both
it
was
held
to
be
ill
,
for
it
lies
only
against
him
which
did
the
wrong
.
If
the
Action
ought
to
be
brought
against
all
,
then
the
Defendant
should
have
taken
advantage
of
it
by
pleading
,
and
to
have
shewed
who
were
the
Proprietors
with
himself
;
for
't
is
impossible
for
the
Plaintiff
to
know
who
they
are
;
and
for
this
reason
the
Plea
is
not
good
.
The
Plaintiff
ought
to
have
brought
his
Action
either
against
the
Master
alone
or
all
the
Proprietors
;
't
is
true
,
if
this
had
been
only
an
Action
of
a
simple
Trespass
he
might
have
brought
it
against
all
or
one
;
but
this
sounds
not
only
in
a
Wrong
,
but
't
is
in
Breach
of
a
Covenant
or
Duty
,
and
so
ought
to
be
commenced
against
all
of
them
as
common
Carriers
.
Now
the
great
reason
why
all
are
liable
to
an
Action
is
,
because
they
all
have
a
reward
for
the
Hire
of
the
Vessel
;
and
it
seems
very
unreasonable
that
one
should
bear
the
burthen
,
and
the
rest
run
away
with
the
profit
.
The
principal
Case
in
is
an
Authority
directly
to
this
purpose
,
though
it
was
otherwise
quoted
by
the
Plaintiffs
Council
;
it
was
Debt
upon
the
Statute
of
brought
against
one
Lessee
for
not
setting
out
of
Tythes
,
and
it
appeared
upon
the
Evidence
that
two
were
jointly
possessed
of
the
Term
,
and
for
that
reason
it
was
held
that
the
Action
would
not
lie
against
one
alone
.
The
Defendant
ought
not
to
have
pleaded
in
Abatement
that
the
rest
of
the
Proprietors
the
Defendant
because
such
a
Plea
would
not
have
been
good
here
;
for
he
shall
never
be
compelled
to
plead
in
Abatement
either
in
Debt
or
Contract
,
but
in
one
single
Case
,
and
that
is
where
two
are
bound
jointly
,
and
one
is
sued
,
he
may
plead
in
Abatement
,
but
cannot
say
for
the
Bond
is
his
Deed
since
each
of
them
have
sealed
it
.
Afterwards
in
the
Defendant
had
Iudgment
that
the
Action
ought
to
be
brought
against
all
the
Partowners
,
because
they
have
all
an
equal
benefit
,
and
the
ground
of
the
Action
is
upon
a
Trust
reposed
in
all
,
and
every
Trust
supposeth
a
Contract
and
in
all
Cases
grounded
upon
Contracts
the
Parties
who
are
Privies
must
be
joyned
in
the
Action
.
The
Master
of
the
Ship
is
no
more
than
a
Servant
to
the
Owners
,
he
hath
no
Property
either
general
or
special
,
but
the
Power
he
hath
is
given
by
the
Civil
Law
.
There
are
many
Cases
where
the
act
of
the
Servant
shall
charge
the
Master
;
as
for
instance
,
sold
a
quantity
of
Lead
to
and
appointed
the
Lord
who
was
then
Chancellor
of
his
Court
of
Augmentations
to
take
Bond
for
payment
of
the
Mony
.
The
Lord
appointed
one
who
was
his
Clerk
to
take
the
Bond
,
which
was
done
,
who
delivered
it
to
the
Lord
,
and
he
delivered
it
back
again
to
his
Clerk
in
order
to
send
it
to
the
Clerk
of
the
Court
of
Augmentations
.
suppressed
this
Bond
,
and
it
was
the
Opinion
of
all
the
Iudges
of
that
the
Lord
was
chargeable
to
the
King
,
because
the
possession
of
the
Bond
by
his
Servant
and
by
his
Order
was
his
own
possession
.
So
where
an
Officer
of
the
Customs
made
a
Deputy
,
who
concealed
the
Duties
,
and
the
Master
being
ignorant
of
the
Concealment
,
certified
the
Customs
of
that
part
of
the
Revenue
into
the
upon
Oath
,
he
was
adjudged
to
be
answerable
for
this
Concealment
of
his
Servant
.
So
where
the
Lessor
was
bound
that
the
Lessee
should
quietly
enjoy
,
and
it
was
found
that
his
Servant
by
his
command
,
and
he
being
present
,
entred
,
this
was
held
to
be
a
Breach
of
the
Condition
,
for
the
Master
was
the
principal
Trespasser
.
Therefore
though
the
Neglect
in
this
Case
was
in
the
Servant
the
Action
may
be
brought
against
all
the
Owners
,
for
it
is
grounded
though
there
was
no
actual
Agreement
between
the
Plaintiff
and
them
.
And
as
to
this
purpose
't
is
like
the
Case
where
a
Sheriff
levies
Goods
upon
an
Execution
which
are
rescued
out
of
the
hands
of
his
Bailiffs
;
this
appearing
upon
the
Retorn
an
Action
of
Debt
will
lie
against
him
though
there
was
no
actual
Contract
between
the
Plaintiff
and
him
;
for
he
having
taken
the
Goods
in
Execution
there
is
a
Contract
in
Law
to
answer
them
to
the
Plaintiff
.
As
to
the
second
Point
,
it
was
ruled
that
Not-Guilty
was
a
good
Plea
to
any
Mis-feazance
whatsoever
,
and
that
a
Plea
in
Abatement
,
that
the
rest
of
the
Owners
had
been
no
more
than
the
general
Issue
,
but
he
hath
not
pleaded
thus
.
agreed
that
the
Action
ought
to
be
brought
against
all
the
Proprietors
,
it
being
upon
a
Promise
created
by
Law
;
but
he
was
Opinion
that
this
Matter
might
have
been
pleaded
in
Abatement
.
AN
Action
was
brought
in
and
the
Plaintiff
recovered
and
had
Iudgment
and
died
Intestate
.
the
now
Plaintiff
took
out
Letters
of
Administration
to
the
said
Intestate
in
the
Court
of
the
Bishop
of
and
afterwards
brought
a
upon
that
Iudgment
against
the
Defendant
to
shew
Cause
He
had
Iudgment
upon
this
and
the
Defendant
was
taken
in
Execution
and
escaped
.
An
Action
of
Debt
was
brought
by
the
said
against
this
Defendant
who
was
then
Sheriff
,
for
the
Escape
,
and
the
Plaintiff
had
a
Verdict
.
It
was
moved
in
arrest
of
Iudgment
,
and
for
Cause
shewen
that
if
the
Administration
was
void
then
all
the
dependencies
upon
it
are
void
also
,
and
so
the
Plaintiff
can
have
no
Title
to
this
Action
.
Now
the
Administration
is
void
,
because
the
entring
upon
Record
of
the
first
Iudgment
recovered
by
the
Intestate
in
the
County
of
where
the
Records
are
kept
,
made
him
have
in
several
Counties
,
and
then
by
the
Law
Administration
ought
not
to
be
committed
to
the
Plaintiff
in
an
inferior
Diocess
,
but
in
the
Prerogative
Court
.
The
Sheriff
shall
not
take
advantage
of
this
since
the
Iudgment
was
given
upon
the
and
the
issuing
out
against
the
then
Defendant
,
directed
to
the
Sheriff
,
made
him
an
Officer
of
this
Court
,
and
the
Iudgment
shall
not
be
questioned
by
him
;
for
admitting
it
to
be
a
Recovery
without
a
Title
,
yet
he
shall
take
no
advantage
of
it
,
till
the
Iudgment
is
reversed
.
'T
is
not
a
void
but
an
erronious
Iudgment
,
and
when
a
person
is
in
execution
upon
such
a
Iudgment
,
and
Escapes
,
and
then
an
Action
is
brought
against
the
Goaler
or
Sheriff
,
and
Iudgment
and
Execution
thereon
,
though
the
first
Iudgment
upon
which
the
party
was
in
execution
should
be
afterwards
reversed
,
yet
the
Iudgment
against
the
Goaler
being
upon
a
collateral
thing
executed
shall
still
remain
in
force
.
was
a
sufficient
authority
to
the
Sheriff
to
take
the
Body
,
though
grounded
upon
an
erronious
Iudgment
,
and
that
Execution
shall
be
good
till
avoided
by
Error
,
and
no
false
Imprisonment
will
lie
against
the
Goaler
or
Sheriff
upon
such
an
Arrest
.
DEBT
for
Rent
was
brought
against
the
Defendant
as
Administratrix
of
her
late
Husband
,
deceased
in
which
Action
the
Plaintiff
declared
,
That
on
the
he
did
by
Indenture
demise
to
the
said
one
Messuage
and
certain
Lands
in
day
then
last
past
,
for
and
during
the
term
of
years
,
under
a
yearly
Rent
;
that
by
virtue
thereof
he
entred
and
was
possessed
:
That
on
the
the
said
died
Intestate
,
and
that
the
next
day
Administration
of
his
Goods
and
Chattels
was
granted
to
the
Defendant
,
and
that
was
in
arrear
for
Rent
due
at
such
a
time
,
for
which
this
Action
was
now
brought
in
the
The
Defendant
confessed
the
Lease
and
the
death
of
the
Intestate
,
and
that
the
Administration
was
granted
to
her
,
but
saith
,
that
before
the
Rent
was
due
,
she
by
Articles
made
between
her
of
the
one
part
,
and
of
the
other
part
,
did
the
said
Indenture
,
and
all
her
right
,
title
,
and
interest
thereunto
,
and
which
she
had
in
the
Premisses
,
unto
the
said
who
entred
and
was
possessed
;
that
the
Plaintiff
had
notice
of
this
Assignment
before
he
brought
this
Action
,
but
nothing
was
said
of
his
To
this
Plea
the
Plaintiff
demurred
,
and
the
Defendant
joined
in
Demurrer
.
And
Iudgment
was
given
,
by
the
Opinion
of
the
whole
Court
,
for
the
Plaintiff
,
against
the
Authorities
following
.
'T
is
true
,
in
's
Case
,
it
was
resolved
that
if
an
Executor
of
Lessee
for
years
assign
his
Interest
,
Debt
for
Rent
will
not
lye
against
him
,
after
such
Assignment
,
the
reason
there
given
was
,
because
the
personal
privity
of
the
Contract
is
determined
by
the
death
of
the
Lessee
,
as
to
the
Debt
it self
;
and
for
the
same
reason
the
Executor
shall
not
be
lyable
to
the
Rent
,
after
the
death
of
the
Lessee
,
if
such
Lessee
doth
make
an
assignment
of
his
Term
,
in
his
life-time
.
My
Lord
mentioning
this
Case
in
his
third
Report
,
affirms
,
that
it
was
resolved
by
Chief
Iustice
,
and
the
whole
Court
,
that
if
an
Executor
of
a
Lessee
for
years
,
assign
his
Interest
,
will
not
lye
against
him
for
Rent
due
after
such
an
Assignment
but
my
Lord
himself
in
Reporting
that
very
Case
,
tells
us
he
was
of
another
Opinion
,
which
was
,
that
so
long
as
the
Covenant
in
the
Lease
hath
the
nature
and
essence
of
a
Contract
,
it
shall
bind
the
Executor
of
the
Lessee
,
who
as
well
to
that
,
as
to
many
other
purposes
,
represents
the
person
of
the
Testator
,
and
is
privy
to
his
Contracts
.
T
is
true
,
my
Lord
held
in
that
Case
,
that
the
Action
did
not
lye
,
but
because
it
was
brought
by
the
Successor
of
a
Prebendary
,
upon
a
Lease
made
by
him
in
his
life-time
,
who
being
a
single
Corporation
,
the
personal
Contract
was
determined
by
his
death
.
But
the
same
Case
reported
by
others
,
is
said
not
to
be
adjudged
,
for
the
Court
was
divided
in
Opinion
.
The
Case
of
is
the
same
but
there
the
Defendant
pleaded
the
acceptance
of
the
Rent
after
the
assignment
,
which
was
not
done
here
.
Now
if
both
those
Cases
should
be
admitted
to
be
Law
,
and
parallel
with
this
,
yet
the
later
Resolutions
have
been
quite
contrary
;
for
't
is
now
held
,
and
with
great
reason
,
that
the
privity
of
Contract
of
the
Testator
is
not
determined
by
his
death
,
but
that
his
Executor
shall
be
charged
with
all
his
Contracts
,
so
long
as
he
hath
Assets
,
and
therefore
such
Executor
shall
not
discharge
himself
by
making
of
an
Assignment
,
but
shall
still
be
liable
for
what
Rent
shall
incur
after
he
hath
assigned
his
Interest
;
nay
,
if
the
Testator
himself
had
assigned
the
term
in
his
life-time
,
yet
his
Executor
shall
be
charged
in
the
so
long
as
he
hath
Assets
.
TRespass
for
breaking
and
entring
of
his
Close
,
treading
down
of
his
Grass
and
taking
away
of
his
Goods
.
Vpon
not
Guilty
pleaded
,
a
special
Verdict
was
found
,
That
the
Plaintiff
was
an
and
a
Freeman
of
the
City
of
that
he
bought
which
he
sold
in
his
Inu
,
by
which
he
got
his
Living
,
that
he
with
others
built
a
Ship
,
and
he
had
a
Share
therein
,
and
a
Stock
of
to
Trade
withal
;
that
he
was
indebted
to
several
persons
,
and
departed
from
his
House
,
and
absconded
from
his
Creditors
;
that
thereupon
a
Commission
of
Bankrupcy
was
taken
out
against
him
,
at
the
Petition
of
the
Creditors
,
that
the
Plaintiff
was
indebted
to
and
that
the
Commissioners
found
him
to
be
a
Bankrupt
;
and
by
Indenture
bearing
date
the
day
of
made
a
Bargain
and
Sale
of
the
Goods
of
who
did
take
and
carry
them
away
,
The
Question
was
,
whether
upon
the
whole
matter
the
Plaintiff
was
a
Bankrupt
or
not
?
argued
,
that
he
was
not
within
any
of
the
Statutes
of
Bankrupcy
,
for
an
is
under
many
obligations
and
circumstances
different
from
all
other
Trades-men
;
for
he
is
to
take
care
of
the
Goods
of
Travellers
,
and
if
he
set
any
unreasonable
Price
upon
his
Goods
,
't
is
an
Offence
which
the
Iustices
of
Peace
and
Stewards
in
their
Leets
have
power
to
hear
and
determine
.
He
doth
not
buy
and
sell
by
way
of
Contract
,
for
most
of
his
Gains
arise
by
the
entertaining
and
lodging
of
his
Guests
,
by
the
attendance
of
his
Servants
,
and
by
the
Furniture
of
his
Rooms
,
and
by
uttering
of
Commodities
as
in
other
Trades
.
Cro.
Car.
548.
And
therefore
by
the
Opinion
of
three
Iudges
in
the
Case
of
it
was
held
that
an
doth
not
get
his
Living
by
Buying
and
Selling
;
for
though
he
buyeth
Provision
,
he
doth
not
sell
it
by
way
of
Contract
,
but
utters
it
at
what
gain
he
thinks
reasonable
,
which
his
Guests
may
refuse
to
give
.
in
the
arguing
of
that
Case
agreed
,
that
he
who
getteth
his
Living
by
Buying
and
Selling
,
and
not
by
both
,
is
not
within
the
Statutes
,
but
the
Iury
having
found
that
he
got
a
livelyhood
by
both
,
and
using
the
Trade
of
an
therefore
he
was
a
Bankrupt
:
But
the
other
three
Iudges
were
of
a
contrary
Opinion
,
because
an
cannot
properly
be
said
to
sell
his
Goods
.
As
to
his
having
a
Share
in
a
Ship
,
't
is
no
more
than
a
Stock
to
Trade
,
which
may
go
to
an
Infant
,
or
to
an
Executor
after
his
decease
,
and
if
either
of
these
persons
should
Trade
with
it
,
they
cannot
be
made
Bankrupts
,
because
't
is
in
It
was
argued
that
he
who
keepeth
an
is
a
Trades-man
,
and
may
be
properly
said
to
get
his
Living
by
The
Goods
of
a
Traveller
are
not
distrainable
for
the
Rent
of
an
the
reason
is
because
he
is
more
immediately
concern'd
as
a
Trades-man
,
for
the
benefit
of
Comerce
.
It
was
the
Opinion
of
my
Lord
that
an
was
a
Trades-man
,
therefore
any
Man
might
build
a
New
Inn
,
for
it
was
no
Franchise
,
but
a
particular
Trade
to
keep
an
Inn.
And
as
a
Trades-man
he
selleth
his
Goods
to
his
Guests
by
way
of
Contract
,
for
he
is
not
bound
to
provide
Hay
and
Dates
for
the
Horses
of
his
Guests
without
being
paid
in
hand
as
soon
as
the
Horses
come
into
the
Stable
,
for
the
Law
doth
not
oblige
him
to
trust
for
the
payment
.
The
Case
of
as
Reported
by
Iustice
seems
to
be
against
this
Opinion
,
but
't
is
mis-reported
;
for
who
mentions
the
same
Case
,
says
,
that
it
being
found
that
the
got
his
Living
it
was
the
Opinion
of
two
Iudges
that
he
was
within
the
Statute
;
but
the
other
two
Iudges
,
as
to
this
Point
,
were
of
a
contrary
Opinion
,
for
they
held
that
an
Inn-Keeper
could
be
no
more
a
Bankrupt
than
a
Farmer
,
who
often
Buys
and
Sells
Cattel
and
other
Goods
.
Tho'
a
Man
is
of
a
particular
Trade
,
yet
if
it
doth
not
appear
that
he
got
his
Livelyhood
't
is
not
actionable
to
call
such
a
person
Bankrupt
.
Now
certainly
if
the
Plaintiff
had
declared
that
he
was
an
Inn-Keeper
,
and
got
his
living
after
that
manner
,
and
that
the
Defendant
,
to
scandalize
him
,
said
the
Action
would
lie
as
well
as
for
a
Dyer
,
Farmer
,
Carpenter
,
or
such
like
Trades
of
manual
Occupation
.
Most
of
the
are
Farmers
,
and
if
it
had
been
so
found
in
this
Case
,
it
would
not
have
been
denied
but
that
he
had
been
within
the
Statute
of
Bankrupts
.
Afterwards
in
Iudgment
was
given
for
the
Plaintiff
:
for
taking
the
whole
matter
as
found
by
this
Verdict
,
't
is
not
sufficient
to
make
him
a
Bankrupt
.
That
he
had
a
Ship
which
he
let
to
Freight
,
this
was
not
much
insisted
on
at
the
Bar
to
make
him
a
Bankrupt
,
for
't
is
no
more
than
for
a
Man
to
have
a
Share
in
a
Barge
,
Hackney-Coach
,
or
Wagon
,
all
which
are
let
for
Hire
.
Besides
,
in
this
Case
't
is
found
that
the
Plaintiff
was
but
a
Partner
with
another
.
And
as
to
the
which
he
had
in
this
Trade
,
that
is
not
sufficient
to
make
him
a
Bankrupt
,
for
he
must
be
actually
a
Trader
at
the
time
that
the
Debt
was
contracted
,
which
is
not
found
;
so
it
must
be
to
make
the
word
Bankrupt
actionable
,
for
it
must
be
found
that
he
was
a
Trader
at
the
time
of
the
words
spoken
.
All
the
Question
of
difficulty
is
,
that
the
Plaintiff
was
an
Inn-Keeper
,
and
that
he
bought
Necessaries
and
uttered
them
in
his
House
;
but
this
will
not
make
him
a
Baukrupt
.
Because
Inns
are
of
necessity
,
and
under
the
inspection
of
the
publick
,
and
he
cannot
refuse
to
lodge
travelling
persons
and
't
is
chiefly
upon
this
account
that
he
hath
several
Priviledges
which
other
Traders
have
not
,
as
to
detein
a
Horse
till
he
is
paid
for
keeping
of
it
,
They
are
under
the
power
of
the
Iustices
of
the
Peace
,
in
the
places
where
they
are
scituated
;
for
if
an
Inn
be
erected
in
an
inconvenient
place
't
is
a
Nusance
,
and
may
be
suppressed
by
Indictment
;
't
is
the
same
with
an
Ale-house
,
and
therefore
several
Statutes
which
are
made
to
prevent
Tipling
,
and
which
appoint
at
what
price
Ale
shall
be
sold
,
have
been
adjudged
to
extend
to
Inn-Keepers
.
Where
a
Man
Buys
and
Sells
under
a
Restraint
,
and
particular
Limitation
,
tho
't
is
for
his
Livelyhood
,
yet
he
is
not
within
the
Statutes
.
do
not
deal
upon
Contracts
as
other
Traders
do
,
for
a
Iudge
of
Assize
may
set
a
price
upon
his
Goods
,
and
if
they
should
set
a
price
themselves
,
if
't
is
unreasonable
they
may
be
indicted
for
extortion
;
what
they
buy
is
to
a
particular
intent
,
for
't
is
to
spend
in
their
Houses
,
and
tho'
they
get
their
Living
by
it
,
't
is
not
for
the
greatest
part
of
their
Gains
ariseth
by
Lodgings
,
Attendance
,
dressing
of
Meats
,
and
other
Necessaries
for
their
Guests
.
Ever
since
the
Statute
of
the
all
the
subsequent
Acts
relating
to
Bankrupts
have
been
penn'd
alike
,
except
the
which
is
a
little
larger
,
and
takes
in
a
and
it
may
still
be
worth
the
care
of
a
Parliament
to
enlarge
it
to
an
but
no
Law
now
in
being
extends
to
him
.
He
is
not
taken
notice
of
as
a
Trader
within
any
of
the
Statutes
of
Bankrupcy
,
he
is
only
a
person
or
Trador
who
buys
and
sells
for
hospitality
by
receiving
Travellers
he
becomes
chargable
to
the
Publick
,
to
protect
them
and
their
Goods
.
are
Trades
within
the
Statutes
,
but
the
difference
between
those
Trades
and
an
is
plain
,
because
they
use
the
Manufacture
,
and
thereby
encrease
the
value
,
as
Leather
is
made
more
useful
and
of
more
value
,
by
making
of
it
into
Shoes
.
is
not
within
the
Statute
,
and
yet
they
all
buy
and
sell
,
for
't
is
necessary
to
their
Occupation
.
This
Point
was
setled
in
's
Case
;
but
the
occasion
of
the
doubt
afterwards
,
was
by
the
publishing
of
Iustice
's
Reports
,
who
doubted
upon
the
particular
finding
of
the
Iury
,
and
so
the
Court
came
to
be
divided
.
There
is
no
material
difference
between
an
and
the
Master
of
a
who
buys
and
dresses
Provisions
for
young
Scholars
,
and
obtains
Credit
by
his
way
of
Living
,
but
it
was
never
yet
thought
that
he
was
within
any
of
those
Statutes
.
DEBt
upon
a
Bond
for
performance
of
an
Award
,
so
as
it
be
made
by
such
a
day
,
and
The
Defendant
pleaded
The
Plaintiff
replied
,
that
after
the
submission
,
and
before
the
day
appointed
in
the
Condition
,
the
Arbitrators
did
make
their
Award
,
by
which
they
ordered
the
Defendant
to
pay
so
much
Mony
to
the
Plaintiff
,
and
so
assigned
the
breach
for
non-payment
,
And
upon
a
Demurrer
to
this
Replication
,
Serjeant
said
it
was
a
conditional
submission
,
to
perform
an
Award
,
so
as
it
be
made
by
such
a
day
,
and
to
the
Parties
,
and
the
Plaintiff
hath
not
shewed
that
it
was
to
the
Defendant
,
which
he
ought
to
have
averred
.
If
the
Condition
be
to
perform
an
Award
between
the
Parties
,
before
such
a
day
,
it
must
be
delivered
to
all
the
Parties
,
and
not
to
one
,
for
each
of
them
are
in
the
danger
and
penalty
of
the
Bond.
agreed
it
to
be
a
conditional
Submmission
,
but
not
such
as
goeth
to
the
substance
of
the
Award
it self
;
for
the
conditional
Words
are
not
to
the
Award
,
but
to
the
Form
of
the
delivering
of
it
,
and
therefore
it
should
come
on
the
Defendants
side
to
shew
that
it
was
not
ready
to
be
delivered
.
If
an
Award
is
actually
made
't
is
then
ready
to
be
delivered
,
but
in
this
Case
it
must
be
ready
to
be
delivered
to
the
Parties
,
or
to
such
of
them
who
desire
it
,
so
it
must
be
desired
,
and
if
then
denied
the
Party
may
plead
the
matter
specially
.
The
Summission
was
so
that
the
Award
be
made
ready
to
be
delivered
at
a
certain
The
Plaintiff
shewed
an
Award
made
at
ready
to
be
delivered
at
the
Shop
in
this
was
adjudged
to
be
a
void
publication
and
delivery
,
because
a
place
was
appointed
where
it
should
be
delivered
and
published
,
at
the
Shop
in
where
the
Parties
were
to
expect
it
,
and
not
elsewhere
.
So
it
would
have
been
if
a
had
been
appointed
on
which
it
ought
to
be
delivered
,
and
the
day
had
been
mistaken
.
But
here
is
neither
day
or
place
appointed
for
the
delivery
,
so
that
the
Defendant
ought
to
have
desired
the
Award
;
and
if
it
had
not
been
ready
to
be
delivered
,
he
ought
to
have
pleaded
the
Matter
specially
.
HE
brought
a
to
be
restored
to
the
Office
of
a
Proctor
of
Doctors
Commons
The
Return
was
,
that
the
Court
was
the
supreme
Court
of
the
Archbishop
of
who
had
the
Government
thereof
;
that
he
appointed
a
Iudge
of
the
said
Court
,
who
had
power
to
alter
and
displace
Officers
;
that
the
Defendant
was
admitted
and
sworn
a
Proctor
of
the
Court
and
took
an
Oath
to
obey
the
Orders
thereof
;
that
part
of
the
said
Oath
was
,
without
the
Advice
of
an
Advocate
;
that
he
had
done
Business
without
such
advice
in
a
certain
Cause
there
depending
;
and
that
he
refused
to
pay
a
Tax
of
imposed
upon
him
by
Order
of
the
Court
towards
the
Charges
of
the
House
.
The
Questions
upon
this
Return
were
,
Whether
a
will
lie
to
restore
a
person
to
the
Office
of
a
Proctor
?
Whether
a
sufficient
cause
was
returned
to
displace
Mr.
As
to
the
first
,
It
was
held
that
a
doth
lie
,
because
't
is
a
publick
Office
,
and
concerns
the
Administration
of
Iustice
;
and
the
Proctors
being
limited
to
a
certain
number
,
if
many
of
them
should
be
displaced
it
would
be
a
means
to
hinder
Iustice
.
This
Court
doth
judicially
take
notice
of
the
Ecclesiastical
Courts
,
by
prohibiting
them
,
by
taking
notice
of
their
Excommutions
or
of
any
proceedings
,
when
they
are
against
the
Law
of
the
Land
.
A
Proctor
doth
the
Business
in
that
Court
as
as
Attorney
in
and
Notice
is
taken
of
his
place
as
judicially
as
of
any
other
Officer
and
as
to
this
purpose
those
Officers
cannot
be
distinguished
;
if
therefore
a
hath
been
granted
to
restore
an
Attorny
,
why
not
a
Proctor
?
The
Plaintiff
hath
no
remedy
but
by
a
because
an
Assize
will
not
lie
of
this
Office
;
't
is
admitted
that
an
Action
on
the
Case
may
be
brought
,
but
then
Damages
only
are
to
be
recovered
,
and
not
the
Office
;
and
it
would
be
very
inconvenient
to
leave
it
to
a
Iury
to
give
such
Damages
as
the
Party
may
sustain
for
the
loss
of
his
Livelyhood
.
'T
is
no
Objection
to
say
,
that
there
is
a
proper
Visitor
,
in
this
Case
to
whom
to
appeal
,
to
the
Archbishop
;
for
they
have
not
set
out
any
such
visitatorial
power
in
the
Return
;
or
if
any
,
that
he
had
power
to
restore
him
.
But
if
such
Power
had
appeared
upon
the
Return
,
yet
a
Proctor
ought
not
to
appeal
to
the
Archbishop
or
to
the
Guardian
of
the
Spiritualties
because
'
is
in
effect
to
appeal
to
themselves
;
for
the
Dean
of
the
Arches
before
whom
the
Appeal
must
be
brought
is
an
Officer
appointed
by
the
Archbishop
himself
,
and
hath
the
same
Iurisdiction
with
him
.
Besides
,
the
Proctors
there
are
not
properly
under
any
Visitatorial
Power
,
they
have
a
particular
Iurisdiction
within
themselves
,
and
their
Courts
have
been
held
in
several
places
,
as
at
Then
as
to
the
Causes
of
this
removal
't
is
returned
.
For
receiving
and
prosecuting
of
a
Cause
without
the
advice
of
an
Advocate
contrary
to
a
Statute
made
by
the
Archbishop
For
refusing
to
pay
set
upon
him
as
a
Tax
towards
the
Charges
of
the
House
.
Now
neither
of
these
are
sufficient
Causes
to
displace
him
.
As
to
the
first
Cause
,
if
that
Statute
gives
them
any
such
Power
't
is
void
,
because
it
deprives
a
Man
of
his
Freehold
which
cannot
be
done
,
but
by
the
Law
of
the
Land
.
'T
is
not
said
when
this
Offence
was
committed
,
for
it
may
be
before
a
general
Pardon
,
and
then
't
is
discharged
.
But
if
it
is
an
Offence
,
that
will
not
make
a
Forfeiture
without
warning
,
and
no
such
thing
appears
upon
the
Return
for
if
he
had
notice
publickly
,
he
might
have
offered
something
in
excuse
of
himself
,
as
Sickness
,
which
might
have
been
allowed
by
the
Court.
'T
is
as
unreasonable
a
Law
to
put
the
Clients
to
unnecessary
Charges
to
advise
with
an
Advocate
upon
an
ordinary
Libel
,
as
it
would
be
for
an
Attorny
of
the
to
advise
with
Council
to
draw
a
Declaration
on
a
Bond.
They
do
not
shew
by
what
Authority
they
may
levy
a
Tax
,
neither
do
they
set
forth
what
Tax
was
made
in
the
whole
;
so
that
it
might
appear
that
was
a
proportionable
part
for
him
to
pay
;
neither
doth
it
appear
when
this
Tax
was
made
,
or
that
Mr.
was
a
Proctor
when
it
was
made
.
This
is
not
an
Offence
in
matter
of
Iudgment
,
but
't
is
a
Misdemeanour
and
punishable
.
'T
is
very
like
the
Case
of
Fellows
of
Colleges
,
who
have
proper
Visitors
,
and
therefore
the
will
not
grant
a
in
such
Cases
A
Proctor
is
an
Officer
of
a
Court
different
from
the
Courts
of
Law
,
and
therefore
the
cannot
take
notice
of
his
Office
judicially
;
they
have
no
other
way
of
punishing
of
a
Proctor
but
by
displacing
of
him
;
and
if
this
should
be
remedied
by
a
then
those
persons
may
offend
without
punishment
.
'T
is
not
like
the
Case
of
an
Attorny
,
for
he
being
an
Officer
of
the
the
Court
doth
judicially
take
notice
of
him
,
but
not
of
a
Proctor
.
'T
is
more
like
the
Case
of
a
Steward
of
a
Court
Baron
,
which
is
of
private
Iurisdiction
,
and
for
which
a
hath
been
denied
'T
is
like
's
Case
,
who
was
Treasurer
of
the
New
River
Water
;
't
is
true
,
a
was
granted
to
restore
him
to
that
Office
,
but
it
was
only
to
bring
the
Matter
before
the
Court
,
though
that
was
a
Corporation
settled
by
Act
of
Parliament
.
'T
is
also
like
the
Cases
of
Abbots
,
Priors
and
Monks
for
whom
a
was
never
granted
,
because
they
are
Ecclesiastical
Corporations
and
have
proper
Visitors
,
which
is
now
by
Law
devolved
upon
the
Archbishop
.
So
also
Lay
Corporations
have
Visitors
which
are
their
Founders
and
their
Heirs
.
'T
is
an
Objection
of
no
force
to
say
that
this
Appeal
must
be
to
the
Dean
of
the
Arches
,
which
is
to
appeal
to
the
same
person
,
because
though
't
is
true
that
the
Dean
is
constituted
by
the
Archbishop
,
yet
when
once
he
is
invested
with
that
Office
he
is
in
for
his
Life
,
and
the
Archbishop
cannot
afterwards
come
into
that
Court
,
and
execute
the
Office
of
Dean
himself
,
so
he
is
not
the
same
person
,
neither
hath
he
the
same
Iurisdiction
.
A
Proctor
is
not
an
Officer
properly
speaking
,
't
is
only
an
Employment
in
that
Court
,
which
acts
by
different
Laws
and
Rules
from
the
they
have
an
original
Iurisdiction
over
this
matter
,
and
a
is
in
the
nature
of
an
Appeal
,
which
will
not
be
granted
,
where
they
have
such
a
Iurisdiction
,
but
when
they
exceed
it
and
encroach
upon
the
Common
Law
,
then
Prohibitions
are
granted
.
'T
is
for
this
reason
that
in
cases
of
Divorce
which
are
of
a
higher
nature
than
this
case
is
,
no
Appeal
can
be
to
the
for
it
would
be
an
endless
business
for
persons
to
Appeal
and
therefore
credit
must
be
given
to
the
determinations
of
those
Courts
,
who
have
such
Original
Iurisdiction
.
Officers
are
incident
to
all
Courts
,
and
must
partake
of
the
nature
of
those
several
and
respective
Courts
in
which
they
attend
,
and
the
Iudges
,
or
those
who
have
the
supream
Authority
in
such
Courts
,
are
the
proper
persons
to
censure
the
Behaviour
of
their
own
Officers
,
and
if
they
should
be
mistaken
the
cannot
relieve
;
for
in
all
cases
where
such
Iudges
keep
within
their
Bounds
,
no
other
Court
can
correct
their
Errors
in
Proceedings
.
Now
for
a
Church-Warden
of
a
Parish
,
Clerk
,
an
Attorny
,
or
the
like
,
all
these
are
Temporal
Officers
,
and
are
to
be
ordered
by
the
Temporal
Laws
.
But
if
any
wrong
be
done
in
this
Case
the
Party
must
Appeal
;
so
no
Writ
of
Restitution
was
granted
.
AN
Inquisition
being
found
to
seize
the
Office
of
Warden
of
the
into
the
King's
Hands
the
Court
of
assisted
with
three
Iudges
,
was
moved
that
it
might
be
Quashed
.
The
Exceptions
taken
were
,
'T
is
found
that
the
Defendant
was
Warden
of
the
but
doth
not
say
whether
for
Life
,
or
years
,
or
in
Fee
,
The
Offences
which
are
the
causes
of
the
Forfeiture
,
are
laid
to
be
committed
at
the
by
suffering
Escapes
,
and
by
Extortion
,
and
't
is
not
found
where
the
is
scituate
,
so
there
being
no
those
Offences
cannot
be
traversed
They
do
not
find
the
Escape
to
be
of
the
Warden
,
the
Debts
being
unpaid
.
Admitting
it
to
be
a
Forfeiture
,
the
Office
cannot
go
to
the
King
,
but
it
shall
go
to
the
next
who
hath
the
Inheritance
.
The
Opinion
of
the
Court
was
,
that
there
are
two
things
which
entitle
the
King
to
this
Office
,
neither
of
which
were
found
by
this
Inquisition
.
An
Estate
in
the
Party
offending
.
A
cause
of
Forfeiture
of
that
Estate
.
Now
here
was
no
Estate
found
in
the
Warden
,
but
only
that
the
Office
was
forfeited
by
suffering
of
Escapes
,
If
this
had
been
an
Office
of
Inheritance
,
then
it
ought
to
be
found
that
such
a
person
was
seised
in
Fee
,
and
so
what
Estate
soever
he
had
in
it
,
ought
to
be
expresly
found
.
But
as
this
is
found
,
't
is
void
,
because
it
doth
not
answer
the
end
for
which
the
finding
of
Offices
was
provided
,
which
is
to
entitle
the
King
to
the
Offenders
Estate
.
An
Indictment
is
but
another
sort
of
Office
,
and
here
being
no
Estate
found
;
't
is
much
like
an
Indictment
which
finds
no
Offence
,
therefore
it
must
be
quashed
.
It
might
have
been
objected
that
no
Man
can
tell
what
Estate
the
Warden
had
in
this
place
,
and
that
not
being
known
,
no
Office
could
be
found
for
the
King
.
But
this
Objection
runs
to
the
finding
of
all
manner
of
Offices
in
general
,
whose
very
nature
is
to
find
an
Estate
,
and
to
divest
the
subject
thereof
and
vest
it
in
the
King
.
Besides
in
this
Case
one
of
the
Indentures
by
which
the
Office
was
granted
to
the
Warden
must
be
enrolled
in
the
Court
of
This
cannot
be
helped
by
a
which
never
will
support
a
defective
Inquisition
,
and
this
is
such
because
it
doth
not
appear
that
the
Defendant
had
any
Seisin
or
Estate
in
the
Wardenship
of
the
AN
Action
of
Covenant
was
brought
by
Sir
(
who
was
Defendant
in
a
former
Action
)
against
Mr.
wherein
he
declared
that
his
Father
was
seised
in
Fee
of
the
Land
in
Question
(
being
in
and
made
a
Lease
thereof
to
one
years
,
under
the
yearly
Rent
of
in
which
Lease
did
Covenant
for
himself
,
his
Executors
,
Administrators
and
Assigns
to
pay
the
Rent
to
Mr.
his
Heirs
and
Assigns
the
Father
by
Lease
and
Release
convey'd
the
to
Sir
the
now
Plaintiff
,
that
the
Term
was
vested
in
the
Defendant
,
and
assigns
the
breach
for
non-payment
of
the
Rent
.
The
Defendant
pleaded
to
the
Iurisdiction
of
this
Court
,
that
the
Lands
in
the
Declaration
mentioned
lay
in
where
they
have
Courts
of
Record
,
and
so
properly
triable
there
To
this
Plea
the
Plaintiff
demurr'd
and
the
Defendant
joyned
in
Demurrer
.
The
single
Question
was
,
whether
an
Assignee
of
the
Reversion
can
bring
an
Action
of
Covenant
against
the
Assignee
of
a
Lessee
in
any
other
place
than
where
the
Land
is
.
Those
who
argued
that
he
may
,
said
that
this
Action
being
brought
upon
an
is
not
local
but
transitory
and
if
it
is
a
duty
,
't
is
so
every
where
;
therefore
it
hath
been
adjudged
,
that
upon
a
Covenant
brought
in
one
County
,
the
breach
may
be
assigned
in
another
.
He
admitted
that
Debt
upon
a
Lease
for
years
upon
the
Contract
it self
,
and
Covenant
between
the
same
Parties
are
transitory
Actions
,
and
may
be
brought
any
where
,
but
when
once
that
is
gone
as
by
assignment
of
the
Lessee
or
the
death
of
the
Lessor
,
and
there
remains
only
a
there
the
Action
must
be
brought
in
the
County
where
the
Land
lieth
;
the
reason
is
,
because
the
Party
is
then
chargeable
in
respect
of
the
possession
only
.
Therefore
it
was
held
that
where
an
Assignee
of
a
Reversion
of
Lands
in
brought
an
Action
of
Debt
in
upon
a
Lease
for
years
made
there
,
reserving
a
Rent
payable
at
which
was
in
arrear
after
the
Assignment
,
that
the
Action
was
not
well
brought
,
for
it
ought
to
have
been
laid
in
where
the
Lands
were
,
because
the
was
lost
by
the
assignment
of
the
Reversion
,
and
therefore
the
Party
to
whom
that
assignment
was
made
,
ought
to
maintain
the
Action
upon
the
by
reason
of
the
Interest
which
he
had
in
the
Land
it self
,
and
that
must
be
in
the
County
where
it
lieth
.
There
is
a
difference
between
an
Action
of
Debt
for
Rent
brought
by
an
Assignee
,
and
an
Action
of
Covenant
,
for
the
first
is
an
Action
at
the
Common
Law
,
which
hath
fixed
the
Rent
to
the
Reversion
,
and
therefore
such
an
Action
must
be
maintained
upon
the
Privity
of
Estate
,
which
is
always
local
.
But
an
Assigneé
of
a
Reversion
could
not
bring
an
Action
of
Covenant
at
the
Common
Law
,
for
't
is
given
to
him
by
a
particular
Statute
but
the
Statute
did
not
transfer
any
Privity
of
Contract
to
the
Assignee
,
but
the
intent
of
it
was
to
annex
to
the
Reversion
such
Covenants
only
which
concerned
the
Land
it self
,
as
to
repair
the
House
or
amend
the
Fences
,
and
not
to
anner
or
transfer
any
collateral
Covenants
,
as
to
pay
a
Sum
of
Mony
,
for
that
is
fixed
by
the
Common
Law
to
the
Reversion
.
'T
is
true
,
At
the
Common
Law
an
Assignee
of
a
Reversion
might
have
maintained
an
Action
of
Covenant
for
any
thing
agreed
to
be
done
upon
the
Land
it self
:
Privity
of
Contract
is
not
thereby
transferred
so
as
to
make
the
Action
transitory
,
but
it
must
be
brought
upon
the
Privity
of
Estate
;
for
if
a
Man
doth
covenant
to
do
any
collateral
thing
not
in
the
Demise
,
and
the
Word
is
in
the
Deed
,
yet
they
are
not
bound
if
they
have
no
Estate
,
so
that
't
is
not
the
naming
of
them
,
but
by
reason
of
the
Estate
in
the
Land
,
they
are
made
chargeable
.
No
Iudgment
is
entred
upon
the
Roll.
(
must
be
and
Mr.
and
marrieth
she
marrieth
Peyton
Ventris
Common
Pleas
Francis
North
Chancery
,
Kings-Bench
Henry
Hobert
Joseph
Keble
Joseph
Washington
Common
Pleas
S.
Carter
Jos.
Keble
Robert
Cotton
Edward
Plowden
Joseph
Washington
Edmund
Wingate
J.
Washington
Anthony
Fitzherbert
T.
Gooding
W.
Brown
.
Samuel
Wesley
W.
Faithorn
Blessed
Sacrament
Samuel
Wesley
Abraham
Cowley
Dion
Cassius
J
Bernard
Owen
Felltham
Nicholas
Machiavel
Sam.
Puffendorf
Peter
Heylin
W.
Chillingworth
W.
Cambden
Edw.
Hatton
The
Theory
of
the
Earth
LInguae
Romanae
Dictionarium
Luculentum
Novum
Stevens
,
Cooper
,
Gouldman
,
Holyoke
,
John
Milton
,
&c.
F.
Pomey
Thomas
Johnson