John Ernly Esq; Plaintiff, Henry Lord Falkland, and Jo. Doddington Esq; Defendants.

IN an Action upon the Case upon a Promise the Plaintiff (1) declared, That whereas upon the 17th day of February in the year 1653. there was a Communication betwéen the Plaintiff and the Defendants concerning an Horse­race to be run the usual four Mile Course at Burford in Ox­fordshire; upon that Agréement it was concluded betwéen the Plaintiff and the Defendants to run it with a Bay Stone-horse against a Gray Stone-horse on Thursday five Weeks next after that day, and betwixt the hours of 2 and 4 in the after­noon. The one Rider to weigh 16 pound more than the other, who was to weigh 10 Stone; and he or they that lost, were to pay the other or others 200 l. when required. And whereas likewise the Defendants in consideration the Plain­tiff promised to perform his part of the said Agréement, pro­mised to perform their part thereof; and then alledges that although he performed his part of the said Agréement, and that the Race was run at the time, and that the Parties then weighed the weights agreed on, and that the Plaintiffs Horse won the Race, yet the Defendants refuse to pay the 200 l. and avers a particular request, and lays it to his damage of 300 l. Vp­on Non assumpsit pleaded, a Verdict passed for the Plaintiff and 200 l. damages given him. And it was now moved in Arrest of Judgment by Hardres for the Defendants. 1. Be­cause the Promise, which is the ground of the Action, is not sufficiently averred, but laid only by way of Recital; viz. Whereas the Defendants promised, &c. which is not a direct [Page 2] positive Averment, as there ought to be, In 4 Rep. Sir Gil­bert Gerrard's Case, it is resolved, that the word sciens is not a direct Averment upon which a Traverse or Issue may be taken: So in 5 Rep. Semain's Case, Praemissorum non ignarus is ad­judged to be an insufficient Allegation of Notice, where No­tice is necessary; and that it ought to be directly and certainly alledged, 7 H. 7. 2. In Trespass for cutting down and carrying away Trées, resolved that the words praetextu cujus is no cer­tain and positive affirmation of Seisin to make good a Plea; and in 3 H. 7. 11. & 3 Ed. 4. 21. it is ruled that Declarations ought to be certain, because they contain the ground of the Plaintiff's Action. Mich. 43 & 44 Eliz. Garforth and Clerk's Case, in an Action upon the Case for words, the Plaintiff de­clares that slanderous words were spoken Quorum tenor se­quitur in haec verba; and this was adjudged to be nought after a Verdict, for want of a certain Allegation, though the words were actionable in themselves. Hill. 22 Car. B. R. Entr. Trin. 22 Car. Rot. 173. Waterhouse versus Power, In an Action up­on the Case the Plaintiff alledged that the Defendant inter alia made such a Promise; and this was ruled to be nought, though after Verdict, for want of certainty. So here the word Whereas Quod cum is not a direct and positive Affirma­tion, but an imperfect speech, and therefore ill. Mich. 24 Car. B. R. Dawson versus Parkly, Trespass of Battery and entry into Lands laid with a Quod cum adjudged to be nought; and there it was said to have been often adjudged so. There is a diversity betwixt Matters that are but Conveyances and Induce­ments to Actions, and Matters that are the very grounds and foundations of Actions. Inducements need not be so precisely alledged; and therefore to say quod cum sit indebitatus, &c. in an Action upon the Case, is well enought: So in 34 H. 6. 4. in Decies tantum the Record in the former Action needs not be recited at large, because it is but a conveyance to the Action: But in a Scire facias upon a Iudgment the whole Record must be set forth, 19 H. 6. 49. acc. so here it is well in the Inducement but not in the Promise it self. Trin. 35 Eliz. B. C. Hughs versus Robotham in an Action upon the Case upon a Promise, the same difference was taken. See the Case now reported, Cr. Eliz. 302, 303.

2. Every Issue must contain a certain positive affirmative and negative: but in this Case there is no direct affirmative, be­ing laid with a quod cum, and consequently this is a Jeofail not aided: For though an immaterial Issue be aided, as in an Action of Debt upon a Bill, Issue taken upon payment, as in 5 Rep. Nichols Case; yet an unformal Issue, in which there is [Page 3] not an affirmative and a negative, is not added; and so it has been often adjudged in the Common Pleas.

Another Exception he took was to the last averment, viz. That the Parties then weighed, and the word then he said must relate to the proximum antecedens which is certain, and not to an uncertain time; as in 28 H. 8. Dyer 14. b. Bowles Case, the word then related there to the Feast and not to the Parties death, tho the Parties death had been last mentioned. And if in this case it be taken to relate to the last certain time that has been mentioned before, then the performance does not appear to have been according to the agreement; for the time last mentioned is four of the Clock in the Afternoon, whereas they ought to weigh the Weights agreed upon at the time of Riding. Wherefore he prayed that Iudgment might be ar­rested.

Atkins pro Quer'. As to the Objection concerning the Rela­tion of the word then, He said it ought to be taken accord­ing to Common Exposition, and with respect to the Subject Matter, especially since here it is said that they weighed the Weights agreed upon: To the other Objection he said that the word whereas was certain enough, as the word licet in Det, Plow. Com. 121. Buckleys Case. And in Det it is the usual Form to begin with a quod cum: And so the Presidents are in this Court, which make a Law; V. Plow. Com. 128. New Book of Entr. fol. 2, 4, 12. and the Old Book of Entries.

At another day the Chief Baron gave his Opinion, that no Objection of weight had been made, but only that concerning the quod cum; But he conceiv'd the Promise certainly enough alledged, and said, it was as direct an affirmation as the word licet in the Case afore-mentioned: But that that sway'd with him, he said, was Presidents, of which there are two in the New Book of Entries, and seven in the Old, where a quod cum is used in the very Clause of the Promise. And Saunders in Buckleys Case, Plow. Com. agreed, if Presidents were so; and yet the words in a Formedon in descender ut Filio & hae­redi are as material as the words here in question; wherefore Iudgment was given pro Quer', Pasch. 39 Eliz. Matthews and Cranes Case upon a Writ of Error in the Exchequer-chamber was cited in Point.

Jones versus Williams.

IN Det for Rent upon a Lease for Years, the Plaintiff de­clares (2) that J. S. upon the 20^th of Nov. 13 Car. made a [Page 4] Lease to the Defendant for 99 years, if three lives should so long live, rendring Rent, and that afterwards the Lessor de­vised the Reversion to the Plaintiff, & postea scilicet, on the 6th day of Nov. anno 13 Car. dyed; and after a Verdict pro Quer', it was moved in Arrest of Judgment, that the Death of the Lessor was alledged to have happened before the Lease made.

Atkins pro Quer'. The scilicet being repugnant to what goes before is to be rejected as void; for what comes after, it is superfluous, and needed not to have been expressed at all; for the certain day of his death is not material. Vid. Hob. Rep. 79, 171, 213, 284. and Plow. Com. 171. accordant in the Case of Hill and Grange. This is like the Case of an Ang­lice, 10 Reports, Osburnes Case, which is but expository like this.

Shaftoe pro Defendente. The death of the Lessor here is material, for otherwise the Plaintiff has no cause of Action.

Williams pro Quer' cited three Iudgments, in Ejectment, Trover and Covenant, where the scilicet was rejected, because contrary to what went before, and mentioned to be before the Lease made, and before the Trover and the Covenant. Et Adjornatur. Nota, This Case has often been adjudged in the Upper Bench in my time, in Ejectment, Faux Imprisonment, Trover & similibus.

The Attorny-General versus Straite.

(3) IN an Information in the Exchequer-chamber by English Bill for small Tythes appertaining to the Rectory of Southwycke in Dorsetshire; The Defendant in his Answer did not admit the Plaintiffs Title, but alledged an Extinguishment of the Tythes by unity of Possession. And the Plaintiff made no proof of the value of the Tythes, nor what Cattle had been depastured in the place, where, &c. And for that cause the Court upon hearing of the Cause, refused to direct a Tryal at Law, because no particular damnification appeared to them, whereon to ground a Decree for the Plaintiff, if the Verdict should pass for him; and thereupon the Bill was dismiss.

Hardwycke versus Newre.

(4) THE Plaintiff exhibited his Bill as Parson of Haddam in Hartfordshire for predial and other Tythes, and up­on [Page 5] proof of the quantity and values, had a Decree for the whole; and the Clerks said, That this was the constant practise where a Bill is exhibited for predial Tythes, and the single value only demanded.

Barnehurst versus Cabbot.

IN an Action upon the Case upon a Promise of the Defen­dants (5) to pay to the Plaintiff a Det owing by a third Person, if he would forbear to sue that Person; the Plain­tiff averted forbearance hitherto; and after a Verdict for the Plaintiff, Shaftoe moved in Arrest of Judgment, because the Plaintiff had not alledged in particular how long he had forborn, that so it might appear to the Court, whether he had forborn a conventent time, or not; and cited Home and Gibbons Case, Pasch. 29 Eliz. B. C. consideration quod differret diem soluti­onis, adjudged to be naught. And Pasch. 36 Eliz. B. R. Rot. 88. Sackford cont. Phillips, where a Promise was laid as this is, and the like averment made, and held to be ill. And in Mich. 21 Jac. which Case began Hill. 18 Jac. Maps versus Sir Isack Sidley; In an Action upon such a Promise as this, the Plaintiff averred that he had forborn a twelve-month, and held good; and a diversity was there taken betwixt, where a certain time is alledged, and where not.

Obj. Hob. Rep. 216. Bidwell and Cattons Case.

Resp. There an Action was actually commenced, which is not in our Case.

Mr. Thomas pro Quer'. He cited Hill. 42 Eliz. C. B. Smith and Campions Case. A promise and averment exactly the same with ours, and adjudged good; and two Iudgments were cited, Pasch. 9 Jac. The Executors of Hangers Case; forbearance for a quarter, shall be understood a quarter of a year, according to common parlance. Vide Pasch. 37 Eliz. May and Alvarez, reported Cro. Eliz. 387. so here the Plaintiff has averred for­bearance hitherto, which is certain enough by computation.

Chief Baron. It appears here upon Record how long time the Plaintiff forbore, and that is as well as if it had been particularly expressed:

Another Exception was taken because the Plaintiff alledged himself to be a Debtor to the Protector without more, and does not say of England, &c. sed non allocatur, &c. Et adjurnatur.

At another day the Chief Baron gave Iudgment for the Plaintiff that the consideration was good; Banes Case, 9 Rep. and the averment sufficient; for that it appears upon Record [Page 6] how long the forbearance was; and therefore no particular averment necessary, Wymarkes Case, 5 Rep.

Webb versus Beale.

(6) IN Trespass for an Assault and Battery, and taking of the Plaintiffs Goods, the Defendant as to the Battery plead­ed not guilty, and as to the taking of the Goods justified, for that the Protector and all his Predecessors, Kings and Queens of England, had time out of mind had a Court of Record in such a place, and that in that there was a Plaint entred against the Plaintiff, and that he was attached by his Goods, and be­cause he did not appear and put in Bail that they were for­feited according to the Custom of the Court, to the Lord of the Court. The Plaintiff replyed, De injuria sua propria, &c. generally; to which the Defendant demurred.

Shaftoe pro Quer'. The Replication is good: I agree to what is resolved in Crogates Case, 8 Rep. that when a meer Matter of Record is pleaded, then such a Replication is not good; but here is not a meer Matter of Record, but what is mixt and interwoven with Matter of Fact. Besides, It ap­pears throughout the Pleading that the Court here spoken of, is but a Court-Baron, which is not a Court of Record: He cited 22 Ed. 4. 33. b. Hob. Rep. 1 Edit. 344. Peter and Staffords Case, 34 H. 6. 49. Co. Mag. Charta.

Latch and Windham pro Def. This Exception is unexpect­ed, being against Crogates Case, which was a Case solemnly settled upon consideration of all the Books, which seemed to vary: And the main reason of the Case is, because there ought not to be various and mixt Matters put in issue to a Iury, but some one certain and special Matter according to the Rule of Law there laid down. Wherefore because this Matter ought not to be drawn in question after Crogates Case, they prayed Iudgment for the Plaintiff. Et Adjurnatur.

Crosses Case.

(7) EXceptions were taken to the Return of an Outlawry, up­on a Writ directed to the Warden of the Cinque-ports, and Lands found in St. Peters, in Thanet, liable to the Out­lawry. 1. Except. Because the Outlawry is recited to have issued at the Feast of the Conversion of St. Paul in 1653. with­out saying in what year of our Lord Christ; sed non allo­catur; [Page 7] for 1653. must relate to the year of our Lord, and can have no other intendment. 2. St. Peters is not alledged to be in any County. 3. Lands are found in the particular Occupation of such and such, but the value of every parti­cular parcel is not found, but by the lump, tht in toto the Lands are of such a value, sed non allocatur. And for the se­cond Exception it was prayed that it might be amended and made to agree with the Record in the Common Pleas before the Clerk of the Outlawries, this here being but a Transcript of that: And Pollard and Fitz. Wrihams Case was cited, where it appeared that but 11 were of the Iury, and after Plea and Issue, ruled and ordered to be amended, according to the Record of the Outlawry; and so it was ruled here. Quod nota.

Wales & Ux' versus Norton & Ux'.

IN an Action upon the Case for these words, spoken by the (8) Defendants Wife, of the Wife of the Plaintiff, viz. She is a forsworn Whore, and a perjured Whore, and forswore herself at Watermans Hall concerning the Servant of I. S. Vpon not guilty pleaded there was a Verdict for the Plaintiff, and Hardres moved in Arrest of Iudgment, that the words as here laid are not actionable: He grounded what he said upon 4 Rep. 13. b. In Actions for words, the sense and meaning of the words is to be regarded, and the sense and meaning ap­pears by the occasion of speaking them: sensus verborum è cause dicendi accipiendus est: and they are not favoured so as to be stretcht, 4 Rep. 18. b. He is a perjured old Knave, and that is to be proved by a Stake parting the Lands of H. M. and Mr. W. adjudged not actionable, because the latter words ex­tenuate the former, and shew that the Party meant not judi­cial Perjury; but yet the words perjured old Knave of them­selves are actionable, Mich. 9 Car. B. R. Redhead and Smith: Thou art a cheating and Conny-catching Thief, and didst cheat the Company of Watermen at Newcastle of twenty Nobles; adjudged not actionable, because the word Thief is qualified, and refers only to cheating and cozening, which is not Felony; and the main of the Charge is Cheating: so here the main Charge is Forswearing, which is not actionable; and the speaking of the words was occasioned by something that passed at Watermans Hall, where Perjury cannot be committed.

But the Chief Baron said, That here were several and di­stinct Clauses, and the words perjured Whore are in a distinct [Page 8] Clause by themselves, without reference to, or dependance on the rest; and Judgment was given for the Plaintiff.

Wake versus Chapman & Ux'.

(9) AN Action upon the Case was brought for these words spoken of the Plaintiff by the Defendants Wife, viz Thou art a cheating Rogue and a Runnagate Rogue; and the Plaintiff laid that he was a Merchant of Cales, &c. Vpon not guilty pleaded, the Plaintiff had a Verdict, and Hardres moved in Arrest of Iudgment, that the words are not action­able, tho spoken of a Merchant, without a colloquium of his Trade: As to say of a Mayor that he has cozened all his Bre­tren, or of an Overseer that he has cozened the Poor of their Bread, or of a Lawyer that he has cozened all his Kindred, adjudged not actionable, 13 Car. B. R. Marches Rep. 135. So to say generally that a Man is a Cozener or a Cheater with­out a colloquium of his Trade or Profession, is not actionable 15 Car. B. R. Pasch. 7 Car. B. C. Alexton and Moor, Trin. 7 Car. B. R. Gees Case, and Iudgment was hereupon arrested quo­us{que} &c.

Joan Crawley versus Henry Fenne Esq; In Det.

THE Plaintiff declares, That upon the 18th day of Au­gust, (1) 1654. at London, in St. Mary le Bow, in the Ward of Cheap, the Defandant by his Writing Obligatory produced in Court, and bearing that date, did acknowledge himself to owe and be indebted unto the Plaintiff in the Sum of 50 l. to be paid to her or her Assigns at her day of Marriage, or on the 1st day day of February, which should first happen; provided that the Plaintiff do make good, justifie and maintian the truth of the Declaration given to the Defendant, under her Hand and Seal, bearing even date with the said Writing Obligatory, and avers, That although she always hath been, and still is ready to make good, justifie and maintain the truth of the said Declaration, yet the Defendant hath, and still doth deny to pay the said Debt, to her Damage of 20 l. To this De­claration, after Oyer of the Writing Obligatory, the Defendant demurs.

Object. The Declaration is vitious, because it does not ex­press the Contents of the Declaration given under the Plain­tiffs Hand and Seal, which ought to be set forth, as in case of an Obligation conditioned to perform Covenants in an In­denture, it must appear what the Covenants were.

Resp. 1. The averment in the Declaration, that she was always ready, &c. needed not to have been expressed at all: The Proviso in the Bill is a Condition subsequent and not precedent; it is not that which creates the Debt, the Debt arises by the Plaintiffs Marriage, or the coming of the 1st of February which is past; and being a subsequent Condition, it lies on the Defendants part to alledge a breach of it, for it is for his advantage, 7 Rep. 9. b. Ughtreds Case, Annuity grant­ed for the Exercise of an Office; the Plaintiff in an Action to recover his Annuity, needeth not aver that he has exercised the Office; and the difference there taken, is betwixt a Condition precedent and subsequent, 5 H. 7. 1. Annuity granted till the Grantee be advanced to a Benefice; he needs not shew that he [Page 10] is not advanced: He quoted 21 Ed. 4. 36. b. 9 H. 6. 15, 16. where a difference is taken betwixt where a Condition is for the advantage of the Obligee and of the Obligor; he for whose advantage it is, must plead it: here he said the Proviso was for the advantage of the Obligor, for it comes after the sol­vendum; and consequently the Plaintiff not obliged to set it forth.

Resp. 2. The Proviso here limits no certain time for the performance, and consequently the Plaintiff has time to per­form it as long as she lives, unless hastned by request, 22 Ed. 4. 43. Annuity pro consilio impendendo; the Defendant must demand Councel, and be denied it, before the Annuity be for­feited; so here the Defendant ought to require the Plaintiff to make good her Declaration, 6 Rep. 31. in Bothies Case, where the Defendants presence is requisite, there the Plaintiff has time during Life, unless hastned by request; as in our Case. But if the Mony had been made payable to the Plain­tiff when she should have proved, &c. then it would have been necessary for her to have set it forth; but here she needs not, for the Proviso comes after the solvendum; wherefore the Pro­viso here being a Condition subsequent, and the Party having time to perform it during her life, unless hastned by request, which she has not been; the averment in the Declaration is meerly Nugatory, and the General Demurrer ill; quaere quid inde venit.

Henry Newman Plaintiff, and Elienor Phillips Defendant.

(2) IN Trespass and Ejectment for several Messuages; Not guilty was pleaded as to a third part, and for the two other thirds, the Case upon a Special Verdict was thus; viz. Cuthbert Beeston seized in Fee of the Messuage in question, called the Walnut-tree (inter alia) lying in Southwark, in the County of Surry, holden in Capite, devised two parts of the same to George Ward and his Heirs after the death of his Wife, to the intent and purpose, and upon condition that the De­visee, his Executors or Assigns, shall with the Rents and Profits of the Premises, after the death of his Wife, for ten years, pay several charitable Vses expressed in his Will, and died without Issue; the Wife enters, George Ward the Devisee hath Issue Cuthbert, and dies, his Son being within age; the Wife dies, and then by a Writ directed to the Escheator of Surry, (the Mayor of London for the time being, being Eschea­tor [Page 11] in Southwark, by a Patent of 4 Edw. 4. and no other Escheator to meddle there) dated the 18th of Nov. Anno 45 of Eliz. the said Cuthbert Ward is found to be the Queens Ward, and during the time of this Wardship the said Con­dition is broken. Agnes Phillips Cozen and Heir of the De­visor enters, and dies without Heir, and so found by special Commission under the Great Seal dated the 2d of June, 18 Jac. directed to Ferrand and others; and after by another like Commission dated the 9th of January, 19 Jac. which was after­ward quashed by Order of this Court. King James died seized, and the same descended to King Charles, who being seized the 5th of June, 2 Car. leased the same under the Great Seal to Arthur Y. for 41 years from Michaelmas before; the Lessee en­tred, and by mean Assignments the same comes to the Lessor of the Plaintiff, who entred, and was possessed till ejected by the Defendant.

Hardres pro Quer'. 1. I conceive this to be a good Con­dition, in point of creation, by virtute of the words, to the intent and purpose, and upon condition, &c. for eâ intentione, or ad effectum will amount to Conditions in a Will, tho not in a Grant, 10 Rep. Mary Portingtons Case, 42. a. and the Books there cited.

2. An Infant and his Estate may well be subject to a Con­dition, Vid. 8 Rep. Whittinghams Case, 44. b. There diver­sities are taken betwixt Conditions in Fait and Conditions in Law; betwixt Conditions at Common Law and Conditions by Statute Law; and Conditions at Common Law, which require skill and confidence, and which do not: Infants are bound by all Conditions, whether in Fait or in Law, that re­quire confidence and skill; as when the Office of Parker or Steward descends to an Infant in Fee; and the reason of that comes up to our Case.

3. The Heir is comprehended within the word Assigns, with respect to the performance of Conditions and Covenants, Vid. Plow. Com. Chapman and Daltons Case, 288. and 5 Rep. 96 Goodales Case.

4. The question will be next whether or no the King be well entitled to the Wardship, by virtue of an Office found virtute brevis before the Escheator of the County, when the Mayor of the City of London, for the time being, is Escheator there by Patent? I conceive the Office to be void, and the King not entitled by it; and that the Escheator acted only colore, but not virtute Officii.

For else there would an uncertainty arise, which might en­veigle the Court, as not knowing who to give credit to; for [Page 12] if another Writ had issued to the Mayor of London, as there ought to have done, and upon that there had been found con­trary to what has been found before the Escheator of the Coun­ty; this contrariety would be mischievous; wherefore two se­parate and distinct Officers are not to be admitted within one and the same Precinct, to avoid contradiction and contrariety in the Execution, Cro. Car. 195. Office of Sheriff granted for Life, and afterwards granted to another, the second Grant is void, and there needs no Scire fac', 4 Rep. 46. In 11 Rep. in Auditor Curles Case, it is said the King cannot make two di­stinct Officers of one and the same Office; but two Persons may constitute one and the same Officer; for then one cannot act without the other, 6 H. 7. fol. If the King grant an Office to one, and afterwards grant the same Office to ano­ther, the second Grant is void for the reason above mentioned. So here, if there cannot be two Officers within the same place, at the same time, then the execution of the Writ in the Case at Bar by one, who is not an Officer there, was void, & coram non Judice. Vide 10 Rep. the Case of the Marshalsey. And if it be a void Office, then the King is not entitled by it; for a void Office, and no Office at all, are one and the same; as in 22 H. 6. 46. b. A void Award, and no Award, are all one; and an Obligation to perform an Award, cannot be for­feited by not performing a void Award. 5 H. 7. 28. b. In­sufficient return of a Sheriff, and no return at all, are all one. 7 Ed. 4. 16. b. 11 H. 8. Keilw. 199. held there, That if an Escheator feize by vertue of an insufficient Office, he is a Tres­passor and a Disseisor. 3 and 4 Eliz. Dyer 208. b. If in an Office found upon a diem clausit extremum, the certainty of the place, and the name of the County be not exprest, it is as no Office at all. 7 Ed. 4. 16. b. there it is held that if an Office taken before an Escheator finds a Feoffment to the use of the King, the King is not entitled thereby, because the Feoffment does not appear upon Record, without which the King cannot take.

Object. The Sheriff may execute a Writ within a Franchise, and the Execution shall be good, tho the Lord of the Franchise may have an Action against him for it.

Resp. The Cases are not alike, for the Court does not take notice of Franchises, and the Sheriff is the Officer to the Court, notwithstanding the Franchise; and the Lord of the Franchise, is but a subordinate Minister to the Sheriff; but one Escheator is in no such subordination to another Eschea­tor; but they have severally the same Power within their Precincts.

Therefore if there be no Office in the Case, then there is no Wardship; for before Office found there can be no Ward­ship; for till the Office found, the Freehold and Possession are ject upon the Heir; Vid. Plow. Com. 229. a. 230. a. Seignior Berkeleys Case.

5. Admit the King well entitled to the Wardship, yet the Estate is liable to the Condition, and the Entry good for the Breach thereof.

1. Because here the King claims under the Title of a Subject, and therefore shall be in no better condition than the Subject under whom he claims, upon this Head, Vid. 49 Ed. 3. 15. Isabel Goodcheaps Case, and 4 Rep. The Case of the Commi­nalty of Sadlers 55. b. where a diversity is taken betwixt the Kings having an original Estate upon condition, and a deri­vative one. If it be an original Estate, then the performance of the Condition must appear upon Record, else the King can­not enter; otherwise when the King claims under another.

2. The Kings Estate here is but a Chattel, viz. An Estate during the minority of the Ward; and Chattels may be di­vested out of the King, and vested in him without Office.

20 Ed. 4. 11. If the King be entitled to an Advowson in the Right of his Ward, he may present to the Church with­out Office. Vid. 6 and 7 Eliz. Dyer 236. a. It was found by Office, that a Morgagee of Lands held in Socage, died seized of them and of Lands held in Capite, his Heir within age; afterwards the Morgagor performed the Condition, and paid the Mony to the Executors of the Morgagee, and entred; And the question was, whether or no he should answer the Profits to the King till Livery sued or not? And adjudged that the Morgagor should receive the Profits presently, and should be put to his monstrance de droit, to get his Lands out of the Kings Hands. 3 and 4 Ph. and Mar. Dyer 138. b. The Dutchess of Suffolks Case; An Estate was given to the King eâ intentione that he should grant other Lands in lieu of it; the King granted other Lands in lieu of it to hold of him in Capite, who died, his Heir within Age, and in Ward; then an Entry was made for a supposed breach of the Con­dition, and the Entry is there admitted to be lawful if there were a Breach; but it was doubted whether these words amounted to a Condition. 22 Eliz. Dyer 367. a. The Mor­gagee of Lands held in Capite, and of other Lands, died, his Heir within Age; and the King seizes and dies, the Morgagor performs the Condition and enters, and held per opinionem Cur' Wardorum, that his Entry was lawful, which is a Case express in the Point.

Object. The King is not subject to the Condition, but is entilted to the Profits by reason of the Wardship, which is an ancient Flower of the Crown, nor has he notice.

Resp. As well as the King may be bound by an express Condition, when an Estate is conveyed to him upon Condition, as appears by the Case of the Wardens and Commonalty of Sadlers, Co. 4 Rep. So shall he be bound when he claims un­der a conditional Estate, as here; and as appears by Isabel Goodcheaps Case, 49 Ed. 3. afore-cited, & terra transit cum onere; and tho a distress or the like cannot be made upon Land in the Kings Possession, yet non sequitur, that therefore it cannot be clog'd with a Condition; and the Kings Title by Wardship comes under the Will, which creates the Condi­tion; for if there had been no such Will, there would have been no such Wardship, so that the Title to enter for the Con­dition broken is paramount to the Title by Wardship; and that there may be an Entry upon the Kings Possession for a Con­dition broken, appears by the Cases cited already out of Dyer. And for what has been objected concerning Notice, there is no Person here to give notice, for the Devisor is dead, and his Heir is a Stranger to the Tenure and the Wardship and not concerned in it, nor mentioned in the Office whereby the King claims the Wardship.

3. Admit the Party not to be in possession against the King, yet none can take advantage of this but the King himself; and the King here has not taken advantage, for it is more for his advantage to be out of possession, because then he be­comes entitled by Escheat; and the King shall be accounted in of his best Title. Vid. 14 Ed. 4.5. b. 5 Ed. 4 4. a. If one Office find the Heir within age, and another find him to be of full age; that which makes best for the King shall be received.

6. It is made a question, whether or no the King be well entitled to this Escheat by virtute of this Office found before Commissioners? And I conceive that he is.

But I conceive the King well entitled to the possession, as this Case is, tho there had been no Office at all; viz. by the death of his Tenant without Heir; and in 4 Rep. 58. a. 9 H. 7. 2. Plow. Com. 229. b. Lord Berkeleys Case, There is a di­versity taken betwixt, when there is a possessio plena, as when the Kings Tenant is disseised, and when the possessio is vacua. In the one Case an Office is necessary, but not in the other.

But admitting that an Office is necessary; yet I hold that there is in this Case sufficient matter of Record to entitle [Page 15] the King by this Commission, as well as if the Office had been found by Writ.

14 Ed. 4. 6. adjudged, That a Commission to others does as well entitle the King to an Escheat, as a Writ to the Escheator; and the reason there given is, because as the King is Superior to all Persons in Dignity and Honour, so he is Superior in Law by his Prerogative; and the Law admits of a favourable con­struction where-ever the King is concerned; nor is there any diffe­rence betwixt a general and a special Commission; nor is the King bound to pursue the Method prescribed for Subjects: And a diversity is there taken between the King and a Subject, for a Subject cannot take advantage of an Office, virtute Officii or Commissionis; but the King can by his Prerogative, wherewith agrées 11 H. 8. Keilw. 198. Besides the King is not held up to Forms, if there be sufficient matter in the Record to entitle him; and for that Vid. 5 Rep. 56. b. Knights Case, where a Lease was made by the Prior of St. John of Jerusalem, upon condition to pay 5 l. Rent quarterly; the Priory was dissolved, and the Pos­sessions thereof given to the Crown: then by Office more Rent was found in arrear for one quarter than was due, yet held good, for the Condition was broken if any part of the Rent was in arrear. 12 and 13 Eliz. Dyer 296. b. If an Office do not find the Party Son or Child upon a settlement made by the Ancestor, this may be supplied by a Suggestion made by the Attorny-General, as a supplement to the Office. 1 Ed. 5. 6. b. A suggestion that Land is held of the King, and that the Wardship belongs to him, sufficient upon Information without Office. Vid. 7 Rep. 13. b. Sir Francis Englefields Case. If the King be entitled by Forfeiture to the benefit of a Condition, and give Authority to another by Letters Patents to perform it; this being certified into the Exchequer, is suffi­cient to entitle the King.

Here the King has a Title upon Record, and the possessio is vacua, or else the King himself is in Possession; and so the King sufficiently entitled to this Escheat, and therefore the Lessee of the Assignee of the Kings Patentee, has good cause of Action; but admitting that the Kings Patentee had no Title, yet his Possession is a good Title against the Defendant, for whom no Title at all is found: So upon the whole matter he prayed Iudgment for the Plaintiff.

Afterwards in Easter Term, Anno 1656. Hide argued pro Defendente. 1. That the Office found by the Escheator of Surry was good, notwithstanding the negative words in the Mayor of Londons Patent. Vid. Dyer 135, 209. being in the same County. And the Statute of 23 H. 6. inflicts a penalty [Page 16] upon Escheators; if they do not cause an Office to be found within a month after the Writ comes to their hand. Vid. 9 H. 20. 7 Ed. 4. 17. 4 Rep. 46. Holcrofts Case. 20 H. 7. 7. There is a diversity between general Authorities and particu­lar Iurisdictions; nor is there any damage to the Party here, but only a breach of the Liberty. 2. Perkins makes a quaere upon the Kings being subject to a Condition; but admitting that he is, yet notice must be given before there can be an Entry upon him. Dyer 138. Goldsboroughs Rep. 137. The Duke of Norfolks Case, Pasch. 7 Jac. Popham. Rep. 8 Rep. Fraunces Case. 3. The Heir cannot enter after Office found, and the King being in Possession. Dyer 139. 49 Ed. 3. 16. 2 Rep. 4 Rep. 4. A Title of Entry cannot Escheat, for where there is an Escheat, the Kings Tenant must die in his Homage, and so the Writ of Escheat runs; there must be a Tenure betwixt the King and him, which is not here. 7 H. 5. 8. 15 Ed. 4. 11. 7 H. 4. 47. Bro. Tit Entry Cong. 36. Obj. The Iury has found it. Resp. Matter of Law cannot be found by the Iury, so as to bind the Court. Plow. Com. 114. b. 231. b. 27 H. 8. 8. 5 Ed. 4. 7. So he concluded pro Defendente.

Vid. Cr. Jac. p. Where it is adjudged, That during the Kings Possession, the King being entitled to the Profits by a Title of Wardship, which is paramount; no breach of a Condition by the Tenant shall forfeit the Estate.

The Protector against Wyche.

(3) AN Information sets forth, That at Gravesend in the County of Kent, upon such a day, in such a Vessel, then and there riding, such a Person seized 206 l. 4 s. in Gold, from certain Persons unknown, then and there passing, or up­on their passage in a certain Ship from Ratcliffe, in the Coun­ty of Middlesex, to parts beyond the Seas. Wyche the De­fendant came in and claimed Property, and pleaded that no Gold was found in any Vessel, by any passing, or upon their passage from Ratcliffe to parts beyond the Sea; and issue be­ing joyned thereupon, a Ven' fac' was awarded from Ratcliffe, and a Verdict found for the Protector. Serjeant Maynard moved in Arrest of Iudgment, That the Ven' is not well awarded, for that it ought to have come from Gravesend in Kent, where the Offence was laid to have been committed; for tho the Vessel is said in the Information to have come from Rat­cliffe, that is not material, it is but a formal and no sub­stantial part of the Information; nor is there any answer to [Page 17] it, or Issue tendred upon it; and though Ratcliff had been materially named, yet since nothing is answered as to it, but only to what is laid at Gravesend, and Issue taken upon that, the Ven̄ ought to have come from Gravesend and not from any other place. And admitting that the Venue ought to come from Ratcliff, yet it ought to come from Gravesend too, and the rather for that the Offence is laid there. And therefore here is a mistryal for want of a right Venue; and it is upon an In­formation, which is not aided by the Statutes of Jeoffails. 2. The Seizure here is mentioned to have been not by the Searcher, whom the Statute of 2 H. 4. c. 5. directs to seize, but by another person. And since that Statute fixes it upon a particular Officer, who is known and intrusted, no other per­son ought or has Authority to seize; and this appears likewise by the saving, which gives the Searcher power to allow the party his reasonable Expences, which no other has power to do. 3. The Issue is taken upon a disjunctive, passing or up­on their passage, and therefore it is ill; for those words do not signifie one and the same thing; they are not Synonyma, for one signifies the present, and the other the future tense: One betokens a readiness to pass, the other actual passing; and concluded for the Defendant.

Finch for the Protector. 1. The Ven̄ Fac̄ is well awarded, because the Offence is a continued Offence and began at Rat­cliff. 2. This Disjunctive signifies but one and the same thing in common intendment. And if it were otherwise, yet in some Cases a Disjunctive has been allowed in an Issue, Hob. Rep. Keble and Osbaston's Case, and 31 H. 8. Dyer 43. b. In an In­formation in the Exchequer for shipping Cloth without paying Custom for it: The Defendaat traversed, that the Custom was not concealed or withdrawn modo & forma prout &c. and Issue was taken upon this, and it was admitted to be a good Issue. 3. Any person may seize as well as a Searcher, it be­ing for the common Good and the King's Profit, else the King might very easily be deceived and defrauded; and the Verdict supplies the defect, if it be one. Et adjornatur.

At another day in the same Term Windham argued for the Defendant: 1. A Searcher ought to seize; but no other person can. It was a Crime at the Common Law to trans­port Coin, Vid. 3 Inst. 92, 93. but not to be in passage with it. So it was an Offence for any Man to go beyond Sea without Licence; and yet it was not lawful for any to stop them; and by the Statute of 18 Ed. 3. not printed, it was made Felony to transport Coin; but then came this Act of 2 H. 4. and confiscates it, if seized in the passage, and gives power to [Page 18] the Searcher to seize and allow to the party his reasonable Expences, which is a judicial Power; and the Exercise of it is called by the Act The Award of the Searcher, Hob. Rep. 245. Py and Westons Case: In an Information a Moiety was demanded, when only a third part was due, and held to be naught. Object. The Statute is only in the Affirmattve, that the Searcher may seize. Resp. It is a Trust and a Iu­dicial Power given to the Searcher, which is not transfer­rable: And the Statute is introductive of a New Law, Plo. Com. 113. a Diversity is taken when a Statute is introductive of a new Law, and when not: If it be introductive of a new Law, then no Man can act in that Affair, but ac­cording to what the Statute directs, and such an affirmative Statute implies a negative; otherwise if the Statute be but affirmative of, and additional to, what the Law was before: But this Statute here is introductive of a new Law, and therefore cannot be put in Execution but according to the true sense and meaning of the Act it self. 2. The second Point in the Case is, that here is a mistrial, and the Visne ill awarded: For the Offence is laid at Gravesend only; for it is said, that at Gravesend in a certain Vessel there the Party had seized this Gold to the use of the Protector, be­cause the said Gold was then and there found in the possession of certain persons unknown, that were then and there in pas­sing to go from Ratcliff out of England; and it does not ap­pear that the Gold was ever at Ratcliff, but at Gravesend only; nor does the Defendants Plea draw the Visne elsewhere. For the Plea is, that the said Gold was not found in the Cu­stody of any person in passing in any Ship or Vessel going out of England. And the Law is very precise and curious in awarding Venues to the proper and nearest place to where the Fact was committed, 6 Rep. Arundels Case. Nor is this Case aided by any Statute. And admit that the Venue ought not to come from Gravesend only, yet it ought to come at least from Gravesend and Ratcliff, since the Counties of Kent and Middlesex may well join, Vid. Hob. Rep. Cook and Clerks Case, 305, 306. concerning a way through three Vills, the Iury ought to come from all three, Vid. etiam 10 E. 4. 10.

Serjeant Maynard on the same side. The Searcher only ought to seize; for the Statute is in the affirmative, and in­troductive of a new Law, which makes it imply a negative. But an affirmative Statute that is in affirmance of the Com­mon Law does not implie a negative.

Finch for the Informer. 1. Any person may seize, quia pro bono publico; and nothing here is given to the Informer. [Page 19] 2. If none can seize by Law but the Searcher, then it is im­plied here that the Seizure in this Case was by the Searcher; for it is said, that the Gold was seized, and you say that none can seize but a Searcher. 3. The Venue is well awarded, and the Issue well joined upon a Disjunctive, 24 Car. B. R. Jenny and Frevil's Case, Pay or cause to be paid, put in issue; held to be well enough. And in the Statute of 21 Jac, of Jeofails, Informations for transporting Gold are excepted. As to the Case concerning a Way, that has beén objected; the terminus a quo is traversable.

Atkins on the same side. 1. The words of the Statute of 2 H. 4. are not compulsory, that the Searcher must, but may seize. 2. The Forfeiture doth not rise upon the Seizure, but upon the Offence, which began at Ratcliff. And in Py's Case, Hob. (before cited) the Information was held good for the King, though not for the Informer. 3. The Venue is well awarded; for the Act is transient, as in case of an Escape, it is an Escape in any County whereever the party comes, 10 Ed. 4. 10. acc.

The Attorny General argued to the same purpose: Et ad­jornatur.

At another day the Barons all held that the Issue was well joyned, notwithstanding the disjunctive, because the parts of the disjunctive Proposition are Synonimous, Vid. 5 Rep. Dormer's Case. But they held the Visne to be misawarded, because all the Fact and Offence appeared to have been in Kent and not in Middlesex, and the Venue must come from the nearest place. Whereupon a new Venire was awarded to the Sheriff of Kent, returnable next Term in order to a Tryal at Bar. And a Tryal at Bar being had the next Term, there was a Verdict for the Defendant; and then a new Information was preferr'd in the Name of the Attorny General only for this Gold, and the Fact laid in Middlesex, and a new Tryal at Bar ordered in Easter Term next: At which time a Tryal being had, there was another Verdict for the Defendant. And it was moved in Arrest of Iudgment; that the former Iudgment was not well entred; for the Entry was thus, Quia videtur Curiae hic quod prior Ven. facias erro­nice emanavit, ideo Venire de novo agard &c. which is amiss; for it ought to have been, Quod prior Ven̄ Fac̄ and the Pan­nel be quash'd.

Finch. The Iudgment ought to be arrested; for else there will be a double Ven̄ Fac̄ upon the File simul & semel; which must not be; for Presidents he cited Rastal's and Cook's En­tries. But otherwise it is, when a new Ven̄ Fac̄ is awarded to [Page 20] supply a defect in a Verdict: For in that case there is no de­fault in the Court. And therefore in that Case the Entry is not Quod Ven̄ Fac̄ & Pannellum cassentur, as is when the Ven̄ Fac̄ is insufficient; for that is the Act of the Court. And he cited 9 Jac. B. R. the Earl of Northumberland's Case in a Quo Warranto.

Serjeant Maynard contr. The manner of Entry in such Cases is the Office of the Clerks, and the Iudgment of the Court is not requisite in such Cases; and Presidents vary: But it be amiss, it is but a mistake of the Clerk, which ought not in reason to avoid the Iudgment of the Court.

At another day Turner argued for Wiche: The difference is when there is a Verdict given and when not; for if there be a Verdict given upon the Ven̄ Fac̄ and recorded, there needs in that Case no formal Iudgment to quash the Ven̄ Fac̄ if it be ill: But when there is no Verdict, such a Iudgment or Award of the Court is necessary; for else there would be a double Ven̄ upon the Roll at one and the same time, upon which there might be two Tryals in one and the same Cause, which would be absurd: And with this difference the Presidents a­gree, Co. lib. Intrat. 253, 340. Rast. 210. & 8 Rep. Loveday's Case. Object. 9 Jac. Resp. There was no Verdict in that Case, and therefore it comes not up to our Case. Object. There is here a negative pregnant, viz. That the Gold was not found in the possession of any person going beyond Sea at Gravesend. Resp. The Traverse is in the same Terms that the Charge is. Object. Vnless such a Iudgment be entred, the Issues of the Iurors, who did not appear, will be lost. Resp. That cannot be after Verdict, as here.

Finch pro Quer̄. That an insufficient Ven̄ Fac̄ requires such a Iudgment, viz. Quod breve & Pannelum cassentur, Vid. the New Book of Entries 253, 395. Rast. Book of Entries, 210, 2 3. New Book Entries, 476. 5 Rep. 41. and Keilw. 56. 6 Rep. A­rundel's Case, such a Iudgment given. Trin. 3 Jac. Sturges and Jerkin, in False Imprisonment, and Trin. 10 Jac. B. R. Mor­timer's Case. Et adjornatur.

Rook's Case.

(4) THere was an Information against Rook for importing twenty Pottacoes of Tobacco of forreign growth in a Vessel not belonging to any of the People of this Nation; but it is not said that the Goods imported belonged to them, as the Act runs, but concluded generally contra formam Sta­tuti. And after a Verdict for the Informer, it was moved in [Page 21] Arrest of Iudgment that the most material part of the Act is omitted, viz. (to them belonging) for if the Goods imported do not belong to this People of the Nation, but to a Stran­ger, then they are not forfeited within that Clause of the late Act. And the words contra formam Statuti will not aid sub­stantial defects, as this is. To which it was answered, that the words contra formam Statuti aided it; as in 14 Eliz. Dyer 312. In an Action upon the Statute for distraining averia ca­rucae contra formam Statuti; it was not averred that there was a sufficient distress besides, and yet the Declaration held good. So in 11 H. 4. 13. Vpon a Ravishment of a Woman contra formam Statuti, without saying, She consented to the Ravisher, and yet adjudged good. Sed nota, These Cases do not come up to the Case in question; for in the former Case it must come on the other side, and in the second Case the Ravishment implies that she consented not; and therefore contra formam Statuti is sufficient in these Cases. But per Curiam contra for­mam Statuti will not aid the Information in this Case; it being the most material part of the Act, which creates the Offence, and therefore ought punctually to be pursued, and Iudgment was arrested. But the Court would advise whether the Iudg­ment should be that the party iret sine die, without the assent of the Attorny General.

Currier contra Cryer.

UPon an English Bill in the Exchequer Chamber the Case (5) was, viz. An Abbot had a Mill within the Kings Man­nor, at which Mill all the Inhabitants were bound by Custom to grind their Corn &c. The King granted the Mannor over; and the Mill came afterwards to the Crown by the dissolution of the Abby; and the King granted it inter alia in Fee-farm, and the Resiants and Inhabitants were decreéd to grind there, as if it were a Prerogative Mill and appertaining to the King's Mannor, at which of common Right all the Tenants of the Mannor ought to grind their Corn, and by Custom all the In­habitants. And this was decreed upon view of divers Presi­dents: but none of the Presidents were in point, to wit, of a Mill in gross, which never was appertaining to the King's Mannor, or originally in the King.

The Protector versus the Lord Lumley.

(6) A Bill was exhibited against him by the Attorny General to discover his real and personal Estate, and what secret and fraudulent Gifts and Conveyances he had made; for that he was outlawed, whereby his Goods and the Profits of his Lands were forfeited. The Defendant demurred, quia nemo tenetur prodere seipsum, and to discover his Estate upon a Forfeiture. But the Court held that he ought to make an­swer to this Bill, because the Protector is entituled to his E­state by course of Law; and the Outlawry is in the nature of a Gift to the King, or a Iudgment for him. And a common person may have a Bill of Discovery in the like Case, to en­able him to take out Execution: and he was ruled to answer, quod nota.

Stanley and Pegg.

(7) IN an English Bill to have the use of Depositions taken in the Dutchy, at a Tryal at the Assizes, the Case was; viz. Two Commoners on the behalf of themselves and all others the Commoners within, &c. preferred a Bill in the Dutchy-Court against the Owner of the Land in which Common was claimed, to have their Common, which was decreéd ac­cordingly for all the Commoners. And now the Defendant having purchased Lands within the Common, and the now Plaintiff being then and yet a Commoner there, but not named a Plaintiff in the former Bill, prefers his Bill here (the Dutchy-Court being put down) against the Defendant Peg, to have the use of the Depositions taken in the former Cause. To which the Defendant demurred, because neither the Plaintiff nor Defendant here were Parties to the former Bill. And the Demurrer was allowed; because the Parties here were not actual Parties in that Suit, though the Suit there was for the same Cause upon which the Action at Law was brought, and of general concernment; and it seemed hard, considering that the Defendant here claimed under the Defendant there.

Morel versus Duglas.

AN English Bill was preferred to be relieved against a (8) Iudgment obtained at Law upon nihil dicit in Debt upon an Obligation; the Equity of the Bill being that the Mony was paid: To this Bill there was a Demurrer, up­on the Statute of 4 H. 4. that after Iudgment the Party shall be in rest and peace, unless Error or Attaint he brought. And the Court allowed the Demurrer. And Langham and Limbry's Case was cited in point; which was ruled in the House of Lords by the advice of all the Iustices in the last long Parliament; the matter being 18000 l. damages given in an Action of Covenant, and Iudgment thereupon. And the Case betwixt Throgmorton and Sir Moyle Finch, wherein it was adjudged that after Iudgment for the Mortgagée in Ejectment a Court of Equity cannot relieve the Mortgagor; but he ought to have preferred his Bill before Iudgment. And though the Preamble of the Act does not mention Courts of Equity, yet by Construction the Statute extends to them.

The Attorny General versus Andrew.

SIR ..... Harrison acknowledged two Iudgments in Debt (9) to one Andrew, upon Bond, and was bound to one Fielder in a Bond bearing date before the Iudgments. Fiel­der assigns his Debt to the King, Andrew takes out Execu­tion upon his Iudgments, viz. two Elegits; by one he has the Moiety, and by the other the other Moiety of Sir .... Har­rison's Lands extended; then Process issued out of the Ex­chequer for the Debt assigned to the King. And the que­stion was, whether or no the King should be preferred in this Case? And then, whether any of the Lands are lyable to the King's Debt, for that Andrew hath taken all the Lands, whereas by his second Elegit he ought but to have taken a Moiety of a Moiety.?

Shaftoe pro Quer̄, conceived that the King's Debt should have preferment. It is is to be observed that it was two years after the Iudgments obtained, and one year after the Debt assigned before the Extent was. The Law favours the King in the Recovery of his Debts, and gives him Prerogatives in his Execution both with respect to the Goods, Lands and Body of his Debtor. 1. As to his Goods, Vid. 3 Rep. Sir William [Page 24] Herberts Case, Dyer 328. F. N. B. 28. b. Vid. l' Stat. de 25 E. 3. cap. 19. Hob. Rep. 115. 2. For his Lands, Vid. Co. Magn. Charta p. 206. F. N. B. 117. 5 Rep. Knights Case, 56. All a Mans Lands shall be seized upon an Obligation assigned to the King, though the Obligeé himself could have but a Moiety. 3. For his Body, Vid. Dyer 197, 296. And for the Kings Pre­rogative as to his Debt, Vid. 45 E. 3. Decies tantum 12. 4 H. 7. 17. 33 H. 6. 27. 38 Ass. 20. The King ought to be pre­ferred in this Case of ours, because upon the assignment of a Debt to the King, the Enquiry is, what Lands the Tenant had at the time of the Assignment? For from that time they become liable to the King, and it is found that Sir John Harrison had these Lands then. Pasch. 21 Jac. in Cur̄ Wardor̄ Sir Edw. Cooks Case, Sir Christopher Hatton had limited Vses to himself for life with divers Remainders over, with a power of Revocation; and then he was made Remembrancer of the first Fruits, and became endebted to the King, and died, his Heir within age; and then the Lands so setled were ex­tended, and by Doderidg, Tanfield and Lee, held that they might well be extended; because the power of Revocation subjected the Lands to his Disposal. And Co. Jurisd. of Courts, 115. Body, Lands and Goods are lyable all at once for a Debt assiged to the King, though not to the Subject, to whom the Debt was originally owing. 2. The Priority of the Iudgment is of no avail in the Case; upon this Rule of Law; viz. the King's and the Subjects Title concur, the King's Title shall be preferred, Vid. Dame Hales Case, Plowd. Com. 158. Baron and Feme are Iointenants for years, the Husband drowns him­self and the Wife is in by Survivor; yet if this be afterwards found by Office, the King shall have the whole Term. And fol. 263. b. 321. Weston, If a Villain purchase, and the Lord seize, and afterwards the Villain be found to be an Ideot a na­tivitate, the King may enter notwithstanding the Seizure; for Laches of Entry shall not prejudice the King. Hill. 4 Ed. 6. Bendl. Rep. An Estate is given upon condition not to commit Treason, and afterwards the party commits Treason, the King's Title shall be preferred, and he shall have the Land. 44 E. 3. 3. cited in 10 Rep. 127. Clan's Case. If the King's Tenant pay his Rent to the King upon the day, the King's Successor shall have it paid over again. So if a Bishop col­late the same day that he dies. 3. The Extent of the Suit of Andrew cannot prejudice the King, quia nullum tempus occur­rit Regi, 50 Ass. 5. Plowd. Com. 261. If a Widow have a Lease for years by Survivorship, yet it shall be liable to the Debt owing to the King by her Husband, Plowd. Com. 559. [Page 25] There can be no Tenant at sufferance of the King's Land, quia nullum tempus occurrit Regi, 35 H. 6. 27. Of Property in Market overt, Littl. Villenage, 178. If the King's Villein pur­chase and alien, yet the King may enter, 11 E. 31. 31 E. 3. Droit 13. The King's Prerogative in darrein presentment, and in droit d' advowson, and Co. Lit. 294. b. So when the King's Tenant holds over his Term he is an Intruder, Co. Coron. 188. Where this is said to be an ancient Prerogative. And 21 Jac. 2. said to be the first Act that limits the King as to time. But when the Kings Interest is temporary and not permanent, there he is limited to time, 7 Rep. 28. in Case of Lapse, Vid. Dyer 224. b. 3 Rep. 12. Com. 321. Cavendishes Case, 7 E. 4. 29. 11 H. 4. 26. Co. Lit. 183. If an Alien and a Subject purchase, after Office found the King shall have all. 4. There was a time in this Case, when if the King had seized, the Land would have been subject to his Debt; for there were two years betwixt the Iudgment and the Extent; and La­chess shall not prejudice the King, 10 Rep. 111, 114. There the Lachess of an Officer in not seizing shall not prejudice the King, 3 E. 4. 25. Plowd. Com. 488. b. Hob. 347. The King's Tenant is disseized, and the Disseisor attainted; the Disseisée enters, the King shall have the Lands after Office found, which is stronger than our Case, Vid. Com. 482. b. 486. 3 E. 6. Dyer 67. b. Stringfellowes Case, There a Writ of Preroga­tive was allowed after an Extendi facias, and Goods there­upon seized into the King's Hands, 41 E. 3. Execution 38. As for the point upon the Statute of 33 H. 8. ca. 39 where it is Enacted, that the King shall be preferred, unless where there is a Iudgment, &c. Vid. Dyer 56. That an affirmative Law does not take away the Prerogative at common Law, 11 Rep. 64. Dr. Fosters Case, Dyer 302. 135. Com. 130. Hill. 36. Eliz. B. R. Entr. Hill. 35 Eliz. Rot. 181. That a Lay Man, though no Doctor, may execute Ecclesiastical Iurisdiction deins 37 H. 8. Trin. 8 Car. Walker and Harris's Case, accord. in B. R. 2. That Clause of the Statute has not beén observed in this Court, Trin. 4 Car. in Scaccario, Rot. 18. James Vanderbrooks Case, He and two others were Executors to one Corown, who was indebted to the King by Assignment, and they pleaded a Iudgment against them, & riens praeter, &c. and this held to be no Plea: And upon the Statute of Sewers a Certiorari allowed contrary to the express words of the Statute. 3d. Point. The second Extent was ill in part upon the Statute of Westm. 2. because the whole was taken instead of a Moiety. The Reason of that Law was, because it was not reasonable that one Creditor should go away with all, Co. Magn. Cart. 395; [Page 26] and Execution 294. A moiety only is extendible. Obj. That is to be understood at one and the same time. Resp. That is a mistake. 10 Ed. 3. Execut. 137. Tr. 38. Eliz. C. B. Cogan and Hunt; A moiety only of a moiety is extendable upon the second Elegit; and in 9 Jac. B. C. Burnams Case, held, That but a moiety of the remaining moiety should be extended. 4th Point. It appears upon the Pleading, that Andrew's extent was two years after the Iudgment, and then a Scire fac' ought to have issued; as 1 H. 5. 4. So upon the whole matter he prayed Iudgment for the Plaintiff.

Afterwards in Easter Term 1656. Atkins argued pro De­fendente. As to the Objection, that all these Lands are ex­tended upon two Iudgments, he said they were Iudgments of the same Term, and therefore no priority betwixt them; and therefore 10 Ed. 2. Extent 137. comes not up to the Case in question: but I conceive that in this Case the Iudgment shall be preferred before the Kings Title. I agree that where the Kings Title and that of a Common Person commence both together, the Kings Title shall be preferred, as in Dame Hales Case, Plow. Com. 260, 263. So if one Obligeé be Outlawed the King shall have the whole, because each had power of the whole. Fitz. Herb. Execution 113. But if a Common Persons Title be prior to the Kings, its otherwise; as in 49 Ed. 3. 16. Devise 10. A Devise prevents an Es­cheat. Vide 4 Rep. 61. b. Plow. Com. 482. Dyer 224. Sir William Cavendishes Case, F. N. B. 45. G. 150. Q. of a Title of Dower. Et Execution 113. where Survivorship takes place. As for the Kings Prerogative in Suits for recovery of his Debts, that extends only to the Debtor himself, and not to a third Person. F. N. B. 28. Reg. 281. b. Inst. 131. b. Nor does a Protection lie after Suit commenced. Hill. 2 Car. Rot. 389. B. R. Busher and Murrey, in Scire fac. upon a Iudg­ment, a Protection pleaded and disallowed, because cast after the Suit was pending. And Dyer 328. accord. and Plow. Com. 246. The Kings Prerogative does no wrong to the Subject: In our Case there was both Iudgment and Execution before the Kings Title. One reason I take from the nature of a Iudg­ment. 8 Rep. 171. and of the Assignment of a Debt by 33 H. 8. cap. 29. 4 Rep. Saddlers Case, A Iudgment is higher than a Statute; and Westm. 2. concerning taking Lands in Execu­tion, transfers that part of the Kings Prerogative to Subjects.

Object. It is inquirable quas terras habuit al temps, &c.

Resp. There are the same words in Execution upon a Sta­tute-Merchant. Dyer 306. a. F. N. B. 267. d. so that signifies nothing. 2. A Iudgment is a common Security, and ought [Page 27] therefore to be favoured; but Iudgments will become of small effect, if the Kings Debt shall leap over them. 2. The Debtors own Act ought not to prejudice the Creditor. Obj. But the course of the Court is so. Resp. If the course of the Court be contrary to all Act of Parliament, it ought not to prevail; and the affirmative words here imply a negative. 4 Inst. Court d'Exchequer, and Dyer 67. And the Cases that have been ob­jected, are concerning Goods, not Lands; and Goods are not liable till Execution taken out. 4. There is no Prerogative but what is time out of mind, and part of the Common Law, which cannot be here; and no President is cited to the con­trary where a Iudgment shall be avoided; and prayed Iudg­ment pro Defendente.

Afterwards in Trin. Term 1636. the Court gave Iudg­ment.

Baron Parker pro Defendente. The King has many Pre­rogatives pro bono publico; but in the Case in question, the Statute of 33 H. 8. abridges the Prerogative, and controls the Common Law: Affirmative Statutes do not alter the Com­mon Law, but negative Statutes do; and here is a negative implied. Vide Dyer, Stringfellows Case, 3 Eliz. Dyer in Las­sels Case, The Kings Debt shall be preferred when it is in equal degree, otherwise not. As to the point of two moieties being extended upon two Iudgments, he held that to be well. Pasch. 13 Jac. B. C. Rot. 121. Crooks Case adjudged.

Baron Nicholas, accord. Before the Statute of 33 H. 8. the King was not bound, but the Statute has made an altera­tion, though it sound in the affirmative, for it enacts a new thing, & ta quod makes a condition precedent, and a limita­tion. Vide Plow. Com. Townsends Case, and Stradling and Morgans Case, 3 Rep. Heydons Case, 10 Rep. Chancellor of Oxfords Case, how such Statutes are to be expounded, and the clause would else be idle. For the second point he held the Executio [...] to be well, because the Iudgments being of the same Term, were of equal daie. Execut. 117. and if it were not good yet that it was only voidable, 8 Rep. Drurys Case.

Chief Baron Steel accordant. The Subjects Title is prior to the Kings and is executed. 9 Rep. 129. Quickes Case, The words of the Statute of 33 H. 8. are introductive. 7 Rep. Cecils Case, and Dyer, S [...]rinfellows Case are unanswerable. For the second point he held the Extents well executed, because both Iudgments were in the same Term, which is but one day in Law. Co. Mag. Chart. 55. There Mony payable at several days be­comes several Debts.

And Iudgment was given accordingly.

Armestrong and Spencer.

(10) IN an Information for transporting Hides into Scotland, upon not guilty pleaded, and a Verdict for the Plaintiff. Atkins moved in Arrest of Iudgment, upon the Statute of Union, which provides, that all Goods shall have the same Priviledges, Freedoms and Immunities there as in England, any Law, Statute, &c. to the contrary notwithstanding, where­by he said the Act of 11 Eliz. cap. 9. was repealed, which pro­hibites the Transportation of Hides into Scotland; that the Statute of Union was a general Law, of which the Iudges were bound to take notice, and that therefore the Court ought ex Officio to stay Iudgment. Plow. Com. 66. b. Dyer 76, 119. as when it appears to the Court that the Plaintiff has no cause of Action.

Shaftoe pro Quer'. The Act of Union does not repeal that of 18 Eliz. cap. 9. The first Clause extends to the Customs and Excise only, and the second to Goods transported out of Scot­land only, (sed nota, this is a mistake, vid. Stat.) Also general words in subsequent Statutes do repeal former Statutes, as in Trudgeons Case, 21 Eliz. cited in Co. Inst. Villenage; That the Statute of Premunire does not repeal the Statute de donis, &c. so as to subject Tenant in Tail to a Forfeiture: nor is the Court bound to take notice of all general Laws, but of such as are in the negative; as of the Law of an Appeal to be brought by a Woman, by which she is restrained from bringing an Appeal for the Death of any Person but of her Husband. Mag. Chart. Et per 8 Ed. 4. 17. A general Pardon must be pleaded, else the Party loseth his Defence; and the Statute of 21 Jac. of Limitations must be pleaded; and Vide Coles Case, Plow. Com. Besides, a Man may, [...]f he will, renounce the benefit of a Law made for his advantage; as in the 10 Rep. Beaufages Case, upon the 23. of H. 6. cap. 10. A Sheriff may take one Surety if he will; and the Court here ought not to take notice of a Persons not being pr [...]viledged, Dyer 119.

But the Barons conceived that the Act of Union had re­pealed that of 18 Eliz. cap. 9. as to Scotland, and that it is a general Law, of which they were bound to take notice, as they are of all general Laws, except where there ere Pro­visoes and Exceptions, which there are not here; and Iudg­ment arrested quous{que} &c.

James Wainwright Plaintiff, and Griffith Griffith Defendant.

IN an Action of Debt against a Gaoler for 69 l. 14 s. 3 d. (1) upon an Escape. The Plaintiff declares, that in Trin. Term. 1649. in this Court he recovered against Richard Midg­ly as well 58 l. 14 s. 3 d. Debt as 11 l. adjudged to him for Damages. Whereupon a Writ issued to the Sheriffs of Lon­don to take his Body, returnable Tres Mich. next following; and upon a non misit breve returned and Writs of the like na­ture continued until 15 Pasch. 1652. The said Sheriffs re­turned a non est inventus &c. Whereupon a Testatum issued at the Plaintiffs request 28 Maii 1652. directed to the She­riff of Montgomery to take the Body of the said Midgly, and to have his Body before the Barons here three Weeks after the Holy Trinity next following, to satisfie the said debt and damages; which Writ was directed to Sir Edward Corbet Bacon then Sheriff of the said County; and by vertue there­of, and before the return of the same, the said Sheriff took the said Midgly in Execution, and had him in Execution and did then and there by vertue of the said Writ commit him to the Gaol of the said County of Montgomery at Welchpool in Execution as aforesaid, under the Custody of the Defendant then Keeper of that Gaol, there to remain &c. whereby the said Midgly was in the Defendant's Custody till the 20th of June, 1652. that he suffered him to go at large, the Plaintiff not being satisfied his said debt and damages; whereby an Action arises to demand the said Execution Mony against the Defendant, which he refuseth to satisfie and pay, to the Plaintiffs damage of 40 l. &c.

Vpon nil debet pleaded, and Issue thereupon, the Iury found a Special Verdict; whereby they found the Recovery and Writs of Execution prout, &c. and that the Sheriff of Mont­gomery by vertue of that Writ of Execution to him directed upon the 6th of June 1652. took and arrested the said Midgly, [Page 30] and had him in Execution, and the same day at Lanvillings in the said County, committed him to the Defendants custody, then Keeper of the County Gaol at Welch-pool. They find likewise, that it is usual for the Gaoler of the County to at­tend the Sheriff, and to take Prisoners into his Custody at other places than where the County-Gaol is kept; and that after the said Commitment at Lanvillings aforesaid, on the 20th of June aforesaid, the Defendant suffered him to escape here in London, in the Parish of St. Mary le Bow, the Plaintiff not being satisfied.

They find also that the said Midgeley was never in the Defendants Custody in the Gaol at Welch-pool, and so con­clude, &c.

The Case.

A Sheriff takes a Man in Execution for Debt, and com­mits him to the Gaoler of the County, at another place than where the Gaol is kept, and the Gaoler suffers him to escape, the Prisoner never having been in his custody at the place where the Common Gaol is kept, and it being usual for Sheriffs to commit Prisoners over to the Gaoler at other places than where the Common Gaol is; The question was, whether an Action upon this Escape will lie against the Gaoler, or ought to have been brought against the Sheriff?

Hardres pro Quer'. I conceive an Action well lies against the Gaoler, or against the Sheriff, at the Plaintiffs Election. I agree, that at Common Law a Mans Body could not be taken in Execution upon a Recognizance or Iudgment but only in special Cases; as in Trespass, &c. where a force and breach of the Peace is supposed. 2 Inst. 382. An Action of Debt does not lie against a Gaoler at Common Law, but only an Action upon the Case, which supposes a Tort and a Trespass; but where the Law makes the Body liable to be taken in Execution, there it is severe, and requires that the Prisoner be kept in salva & arcta custodia, at his peril that has him in custody; and therefore the Statute. of 13 E. 1. de Mercatoribus provides, that if upon a Statute Merchant the Debt be not paid at the day limited, and the Party be committed to prison, and the Keeper of the Prison will not re­ceive him, he shall be answerable for the Debt, if he be able, and if not, he that committed the Prisoner to his keeping shall answer for him. Vide etiam Stat. Westm. 2. cap. 11. By which Statutes it appears, that the Law makes this pro­vision for the security of the Parties Debt in case of an Escape, [Page 31] viz. That he who actually suffers the Escape shall be liable in the first place; and if he be not able to make good the loss, then his Superior shall be responsible; so that the Gaoler, who has the Prisoner in custody, is far from being excused, but is liable as well as his Superior; nay, and in the first place. The Reasons of the Law may be these. 1. It is more natural and consonant to reason, which is the foundation of all Laws, That he who actually offends should be punished, then that another should be punished for him, and he who is the Offender be quit against him to whom he has done the wrong. 13 H. 7. 1. If a Prisoner escape, and the Gaoler retake him, he shall he in Execution again, for he that offended shall not be excused. Vide etiam 3 Rep. Rigeways Case, F. N. B. 130. b. If a Man committed to prison by Auditors of an Account, make his Escape, the Gaoler shall make satisfaction to the Party, and shall have a special Action upon the Case against the Prisoner to answer for the Escape, and the Damages that the Gaoler has sustained thereby, which Case comes up close to ours, and to the reason that I have urged. 3 Rep. Boytons Case, there it is laid down as a Rule, That by the Law every Man is to bear his own burden. A second Reason may be this; viz. An Escape is a Tort, a Wrong, and in the nature of a Trespass, which whoever commits must answer it in his own Person, and not another for him. Vide 2 Inst. 382. 15 Eliz. Dyer 322. a. 41 Ass. 15. 10 Eliz. Dyer 271. by which Books it appears, that an Action upon an Escape lies not against an Executor or an Heir, because it is a personal Tort and Trespass, for which therefore the Party must an­swer himself. 44 Ed. 3. 20. If a Mans Servant take Toll where it is not due, he himself shall answer it, and not his Master, by the Common Law. 13 H. 7. 15. b. 28 H. 8. Dyer 29. a. If a Mans Servant set a Dog on to bite a Man, he him­self shall answer it; so if my Servant put my Beasts into another Mans Ground. 12 H. 7. vide 20 H. 7. 13. b. 21 H. 7. 23. If a Master commands his Servant to distrain for Rent, and he abuse the Distress, the Servant shall answer for it; and the reason of all these Cases is, because the Party that committed the Tort, ought in reason to answer for it, and make it good. A third Reason may be this, viz. The Law looks chiefly upon him that has the actual possession and charge of a thing, as the Person responsible for its forth-coming, 1 Inst. If any Person of his own Head takes the Profits of an Infants Estate, without any legal Authority, the Infant may charge him as his Bailee; Long quinto, fol. 70. b. Debt lies against the Successor of a Provost of a College, who is [Page 32] in de facto, tho he be not a righful Provost. 17 Ed. 3. 27. b. Quare non admisit, which is an Action grounded upon a Tort, and refusal, lies against a Gardian of the Spiritualities de facto; So here, if a Man be in possession of a Gaol, the Law looks upon him as the Party, that is immediately liable as Gaoler. Fourthly. The Law takes notice of Common Gaolers, as Of­ficers and Ministers of Iustice; as appears 3 Rep. Boytons Case, and therefore Habeas Corpus s are frequently directed to them: and before the Statute of 14 Ed. 4. cap. 10. which an­nex't all Common Gaols to the Counties, they were Officers of themselves, and all Gaols belonged to the King, and not to the Sheriff; so that they are not meerly Servants, but Officers and Ministers that the Law takes notice of. Fifthly. My fifth Reason is grounded upon the general Rule of ex­pounding Statutes made in such Cases; viz. Beneficially for the relief of the Parties grieved. Infancy and Coverture are greatly respected and favoured in the Law; and yet vide Whittinghams Case, 8 Rep. 44. a. That if an Infant Gaoler suffer an Escape, an Action lieth against him, and that a vo­luntary Escape is a forfeiture of his Office. Plow. Com. Plats Case, 35. b. Stat. 1 R. 2. cap. 12. Gives a Writ of Debt against the Gardian of the Fleet for suffering a Prisoner to go at large; and this Statute is by equity extended to all Sheriffs and Keepers of Gaols; and tho the Statute mention a Writ of Debt, yet a Bill of Debt is within the Statute. 2 Inst. 382. The Statute of Westm. 2. cap. 11. which mentions one Court only, is extended by equity to all other Courts. 9 H 6. 19. 30 H. 6. 6. 33 H. 6. 1. There it is held, That if Rebels break the Prison, that does not excuse the Gaoler. 39 H. 36. 2. The Duke of Norfolks Case, 11 H. 4. 73. a. If a Man that is a Gaoler by Tort, and in possession of the Goal, suffer a Pri­soner to escape, he shall answer for it. 2 Inst. 382. If such a Goaler suffer a voluntary Escape, he is within the Statute de frangentibus prisonam; à Fortiori in our Case, where there is a lawful Gaoler; so that the current of the Books and Authorities mention the Gaoler, as the Person against whom the Action is brought ever after. Vi. 14 Ed. 3. cap. 10. that an­nexes the Gaols to the Counties: See also F. N. B. 121. A. P. 130. b. 14 H. 7. 1. 34 Ed. 1. Debt 172. All which Books are, that an Action upon an Escape lies against a Gaoler. 10 and 11 Eliz. Dyer 278. b. The Duke of Norfolks Case, There Gawdy Deputy Marshal was charged in Debt for an Escape. 33 H. 6. 56. The Cryer of the Court sent to arrest a Man, who escaped; an Action lies against him. Mich. 37 and 38 Eliz. B. R. Bassets Case, Milton; In Debt upon an Escape, a diver­sity [Page 33] was taken betwixt a Bailiff of a Liberty, and a Sheriffs Bailiff; an Action lies against the first, but not against the second, because he is a meer itinerant Servant, and not fixt in any certain place.

Object. A Gaoler is not an Officer to the Court, but the Sheriff is; and in the Case of a Deputy Marshal, he is a Person admitted by the Court to execute the Office.

Resp. This is no reason why the Gaoler should be excused, who has committed the Fault, and he is an Officer sufficient­ly known, and to whom some Writs shall be directed.

Object. The Sheriff must answer for him, per 14 Ed. 3. cap. 10.

Resp. That is no reason why he should not answer for his own Fault, if he be able.

Object. A Gaoler is but a Servant to the Sheriff and an under Officer, and shall not be subject to Escapes any more than a Sheriffs Bailiff.

Resp. Thou he be a Servant to the Sheriff, yet he is an Officer known to the Court, and fixt in an Office certain, and he is not meerly itinerant as ordinary Bailiffs are; and he seems rather an Officer to the Court than a Deputy, for that a Hab. Corp. is directed to him.

2d. Point, Whether the Gaoler's receiving the Prisoner at another than at the Common Gaol, will alter the Case?

I conceive it will not, for it is not the Walls of the Pri­son, but the Prisoners being in custody, that makes the Pri­son; and that is where the Gaoler is, provided it be within the same County. The Gaol it self is not material, the in­convenience would otherwise be great, and a great latitude would be given to the Power of Gaolers, to keep Prisoners in custody or discharge them, which it is not fit such an Officer should have: For suppose that at a Sessions, or an Assize, a Prisoner be committed to the Gaoler, whose Prison (it may be) is at a great distance; if the Prisoner were not to be in his possession and custody till he were brought within the Walls of the Prison, then it would be in the Gaoler's power to suffer him to escape without punishment, which would be a most unreasonable thing, that he who is but an Officer, an Execu­tioner of Iustice, should have ligandi & solvendi potestatem. 3 Rep. 36. a. Butler and Bakers Cases, An Infant delivers a Deed to another to be delivered to the Party, as his Déed, It shall not now be in the Attornies power to deliver this Deed at the full age of the Infant, and not before, because he is but an Attorny, and it shall not be in his power to make the Deed bind or not bind the Infant at his Election; so here.

Also the form of Declarations upon Escapes shews, That not the Gaol, but the Prisoner's being in the Gaolers Custody makes the Prison; for the words are, That he suffered the Prisoner to go at large out of his custody, and not that he suf­fered him to go out of the Gaol. Vid. 2 Inst. 589. That if a Man be under a lawful Arrest, and break loose, he is within the Statute de frangent' Prisonam, tho he be not within the Walls of the Prison.

And pray'd Iudgment pro Quer'.

It was afterwards argued in Easter Term by Vaughan pro Defendente, and in Trin. Term by Shaftoe pro Quer'.

Shaftoe. That Debt lies upon an Escape against a Gaoler. Obj. No such Action has been brought. Resp. Such Actions have been brought, tho but rarely, because for the most part they are poor and indigent Persons. Obj. He is but in the nature of a Deputy or Servant. Resp. This Action lies against a Deputy. 11 Ed. 2. Debt. 172. against the Keeper of a Gaol. Obj. Respondent superior. Resp. When the Inferior is not respon­sible, Westm. 1. cap. 17, 19. Westm. 2. cap. 43. Dyer 238. Deputy Customer. Co. Mag. Charta 382. Bar. 253. Br̄e directed to a Gaoler to have the Body of a Prisoner, &c. 8 Rep. Grisleys Case, A Habeas Corpus directed to him. Vid. 34 Ed. 1. Debt 162. 11 Ed. 2. Debt 172. 12 Ed. 3. Bar 253. 11 H. 4. 83. 30 H. 6. 6. Rast. Entr. 169. Debt, division Gaoler 2. 14 Ed. 4. 3. b. 14 H. 7. 1. 10 Ed. 4. 10. F. N. B. 121, 130. Co. Magna Charta 592. An Action for an Escape lies against a Prisoner at the Suit of the Gaoler. Obj. The Prisoner was not in the Common Gaol. Resp. That needs not. Co. Mags Cart. 589. 5 H. 4. 8.

Allen pro Defendente. Debt lies not against the Gaoler; there was no such Action at the Common Law, but an Action upon the Case, Dyer 275, 322. and no Statute gives it. Co. Mag. Cart. hast it, That a Keeper of a Prison is not within the Statute of Westm. 2. cap. 11. The Statute of 1 R. 2. has not altered the Common Law in this Case, and it must be understood to extend to all others in equal degree, and not otherwise.

1. The Action lies against the Sheriff, and therefore not against the Gaoler. The Statute does not create a double Debt. 2. It is the Sheriffs Gaol, as appears by the Statutes; and the Gaoler is but his Servant. 3. The Sheriff may commit a Man elsewhere than at the Common Gaol. 4. There is no Process directed to a Gaoler, but a Habeas Corp. which may be directed to any Person whatsoever that has the Body; no Process of charge or discharge, there is no Record to charge [Page 35] him. 5. The Prisoners are in the Eye of the Law in the cu­stody of the Sheriff only. 3 Rep. Westbyes Case, If the Sheriff die, and an Escape happen, there is now no Person against whom to bring the Action, says the Book. 6. This is the first time of putting it in practice.

2. The Verdict has found, that he was not in his custody in the Common Gaol. Mich. 37 and 38 Eliz. Basset and Miltons Case. 5 Ed. 4. 1. This Action lies against the Bailiff of a Franchise, but not against a Sheriffs Bailiff. Bro. Esc. 40. And when the Prisoner is out of the Gaol, tho in the Gaolers custody, the Gaoler acts but as the Sheriffs Servant or Bailiff.

3. There is a material variance betwixt the Declaration and the Verdict; for the Declaration lays it, That he was in the Common Gaol, and the Verdict has found quite contrary. When Actions for Escapes are said to lie against Gaolers, such abolute Gaolers are intended as Writs are directed to.

He pray'd Iudgment pro Defendente.

Guilbert versus Eversly.

THE Plaintiff perferr'd an English Bill in the Exchequer-Chamber (2) for Tithes of Herbage, as Vicar of Eling in Surry, against an Inn-keeper who depastured Travellers Horses, for which there was no customary payment, and the value of the Lands depastured were proved to be 30 l. per annum, and the Court was in doubt what Decree to make for a cer­tain Rate to the Parson; it not being ascertain'd by Custom. And they conceived, that they ought to have regard to the value of the Land, which is proved to be 30 l. per annum, and so to allow him 2 s. in the pound; but they agreed clearly, that Tithes were payable for such Herbage eaten by the Mouths of Travellers Horses, as aforesaid; and so it was adjudged in Trin. 16 Jac. B. R. in a Prohibition, The Court denied to grant a Prohibition, the Libel being against an Inn-holder for Tithes of Herbage eaten by Travellers Horses. And in Mich. 7 Car. B. R. Face and Cauge, held that Tithes shall be paid for agistment of Cattle, by the Occupier of the Lands: But the Court said, they would award a Commission to enquire in­to the value of these Tithes, nisi partes concordarent en le mean temps, which they advised.

John Harris Executor of William Harris Plaintiff and Richard Ferrand Defendant.

(3) THE Plaintiff declared, That whereas John Battisford, deceased, in his life-time, viz. On the 15th of May, in the 14th year of the Reign of King Charles the I. had and re­ceived to his use, of John Stretton of London, Scrivener, the Sum of 100 l. being the proper Monies of the Defendant. And whereas the said William Harris the same day and year, by his Writing Obligatory, became bound with the said Wil­liam Battisford, as his Surety to the Defendant, in the Sum of 200 l. with Condition for the payment of 105 l. at a day then to come, and long since past: And whereas the Defen­dant on the 1st day. of February, in the 3d year of King Charles the I. lent the said William Harris, in his life-time, the Sum of 500 l. and that at the same time there was a Colloquium be­tween them concerning the payment of part of the said hundred pounds, and Interest, by the said Battisford, upon which Col­loquium the Defendant on the said 1st day of February, in the said 3d year of King Charles the I. in consideration, that the said William Harris, at the instance and request of the De­fendant, did give to one Robert Garty, to the Defendants use, one entire sufficient Eonveyance or Security for the pay­ment of the said 100 l. and 48 l. for Interests and Costs, as also of the said 500 l. in all amounting to 648 l. did assume upon himself, and promise to the said William Harris, that if any part of the said hundred pounds and Interest were before paid to the said John Stretton the Scrivener, by the said Battisford, or by any other by his appoinment, that then he the said Defen­dant would pay so much Mony to the said William Harris, as of the said 100 l. and Interest was paid to the said Stretton by the said Battisford, or by any other by his appointment, when he should afterwards be thereunto required. Avers, That altho the said Battisford by the Hands of Humfrey How his Tenant, before the said 1st of February, in the 3d year of King Charles, to wit, Such a day in London did pay to the said Stretton 50 l. principal Mony, and 10 l. 5 s. Interest of the said 100 l. in all amounting to 60 l. 5 s. yet the Defen­dant did not pay the said 60 l. and 5 s. nor any part thereof to the said William Harris in his life-time, altho oftentimes requested, nor to the Plaintiff since the death of the said Wil­liam, altho by the Plaintiff since his death, on the 22th of [Page 37] Nov. 7 Car. Regis at Milton aforesaid, thereunto requested, hath not allowed, paid nor otherwise contented, to his damage of 200 l. &c.

The Defendant protestando that he made no such promise, for Plea pleads the Statute of 21 Jac. of Limitation of Actions, and that the said William Harris in his life-time, viz. on the 8th day of Nov. in the 4th year of King Charles requested the payment of the said Mony of the Defendant, at which time the cause of Action did arise upon the said promise; and that neither the said William in his life-time, nor the Plaintiff since his death did commence any Action or Suit against the De­fendant, upon the said promise, within six years after the cause of Action accrewed; & hoc parat' est, &c. and demands Judg­ment.

The Plaintiff replies, That his cause of Action first began on the 22th of Nov. 7. Car. upon which day, and not before the Plaintiff demanded the said 60 l. 5 s. of the Defendant, and that he began his Action within six years after, viz. The 1st of February, in the 12th year of King Charles, without that, that the said William in his life-time requested the Defendant to al­low, and pay to the said William the said Monies paid to the said Stretton, by the said Battisford, as aforesaid, as the De­fendant hath alledged, and that he is ready to, &c.

The Defendant rejoins, That the said William in his life-time did request him the Defendant to pay the said Monies paid to Stretton, as before he hath alledged; and of this he puts himself, &c.

The Jury find that the said William Harris did not require the Defendant to pay him the Monies paid by the said Battis­ford to the said Stretton, as the Plaintiff in his Replication hath alledged, and assess damages to 80 l. and costs 20 s. &c.

Howel pro Defendente, moved in arrest of Iudgment, and took four Exceptions; 1. To the Declaration. 2. To the Issue. 3. To the Verdict. And 4. for default of Notice.

1. To the Declaration. Because the request mentioned to have been made by the Testator, is laid only by a saepius re­quisitus; and when-ever a Request is requisit before an Action brought, being part of the promise, and as it were a Condi­tion precedent, there it must be particularly alledged, and not by a saepius requisitus. Vide 4 H. 8. 29. Hob. Rep. 274, 437. 1 Edit. where the Statute of Limitations was pleaded; so that for want of a sufficient Request laid, the Declaration is nought.

2. To the Issue. The Issue is taken upon the Traverse, which is, That the Testator did not request the Mony, &c. as the [Page 38] Defendant hath alledged. 1. This is repugnant to the De­claration, where it is mentioned, that the Testator was sae­pius requisitus, &c. and six years are not to be allowed after the Testators death, if the Testator himself made a request. 2. The Traverse is ill, because it comprehends the day upon which the Defendant alledgeth the Demand to have been made by the Testator; and the day is not material, and therefore ought not to have been made part of the Issue, as here it is; the Traverse ought to have been, absque hoc, that he made any request before or after within six years before the Action brought. Vide 7 Rep. Maunds Case, 21 Ed. 3. 42. vid. Bro. Traverse 69. 15 Ed. 4. 23. Bro. Traverse 165. 39 H. 6. 45. 2 Ed. 4. 16. Bro. Pleadings 9. besides, the Issue is repugnant to the Declaration, as hath been said, and is therefore void.

The 3d. Exception was to the Verdict, which also is repug­nant to the Declaration, Vid. 9 H. 6. 37. for the Declaration says the Defendant was saepius requisitus by the Plaintiff, and the Verdict says, That he never was requested by him at all. Vid. 33 H. 6. 30, 31. In Error in Maintenance, a Verdict con­trary to the Record of the Declaration, void; so if contrary to the Confession of the Party, 7 Ed. 4. 31. and Iudgment must be given upon the whole Record, as in 8 Rep. Bonhams Case, and Turnors Case.

The 4th. Exception was for want of Notice. Notice ought to have been given to the Defendant of the Mony paid to Stret­ton, because he is a Stranger to the whole matter. Vid. Hob. Rep. 51, 68. and concluded pro Defendente.

Hardres pro Quer'. Four Exceptions have been taken in Arrest of Iudgment by the Councel of the other side; but I conceive that none of them are sufficient to arrest it.

As for the first, which is to the Declaration, I agree to the Rule that has been laid down concerning when a special Re­quest must be alledged, & licet saepius requisitus is not suffici­ent; and I agree that in this Case there ought to be a spe­cial Request laid, and that licet saepius requisitus is not suffici­ent, that being only the course and form of Pleading, and not traversable, Plow. Com. 128. b. in Buckleys Case. But now in our Case the Plaintiff does not insist, as the ground of his Action, upon any request made by the Testator, but up­on the request made by himself, which is precisely alledged to have been made the 22th of Nov. 7 Car. 1. and that request is the ground of the Plaintiffs Action. The Testators request­ing is put down only for form, and is no part of the ground of the Action; so that this Request made by the Plaintiff is enough for him, nor does any other cause of Action appear in [Page 39] the Case. And though the Declaration would be defective, if the Action were to be grounded upon a Request supposed to have been made by the Testator, yet it is full and particular as to the Request made by himself, and that's sufficient, which answers the Objection made on the other side. If a Man de­clare in an Action upon the Case upon a Promise to pay Costs of Suit, in which Case Notice is requisite, and having laid the Promise and what Costs were recovered, says that the Defendant praemissorum non ignarus (which is not a sufficient allegation) did not perform it, although the Defendant upon such a day had Notice, and lay it precisely, the Declaration is good by reason of the Notice being specially exprest in the following words, though the former words of themselves would not have been sufficient. So here, though the licet saepius requisi­tus be not sufficient, yet the special Request alledged afterwards is; and upon that this Action is grounded.

The second Exception was taken to the Issue. I agree the Cases cited to prove that when the day is made parcel of the Issue, and is not material, the Issue is naught; and that it is good cause of Demurrer'; though this is not so clear by the ancient Books, Vid. 19 H. 6. 9. 21 H. 6. 39. But in this Case of ours, the Traverse does not comprehend the day: We say only that the Testator did not request the Mony, as the De­fendant has alledged: In this Traverse there is not a word of the Day; but only 'tis said, as the Defendant has alledged, which goes only to the substantial, and not to the circumstantial part of the Plea, Vid. 19 H. 6. 7s 5 H. 5. 1. 39 E. 3. 1. It is a common Case, that if a Man in an Action of Trespass or an Action upon the Case upon a Promise, plead non culp. or non assumpsit modo & forma, that this does not comprehend or extend to the day alledged, and therefore the Trespass or the Promise may be found to have béen made at any other time; but it comprehends only the substantial part of the Plea, Vid. Lit. 482, 483. for the words modo & forma, that they are a Form of Pleading and not Words of Substance. And therefore in a Writ of casu consimili brought upon a supposed Alienation in Fee, if the Tenant plead ne aliena modo & forma, and an alienation for Life be found, it sufficeth; yet that is not modo & forma, Vid. Long. Quinto fol. 26. In Trespass sur 5 R. 2. Pasch. 1 Car. Ent. Hill. 21 Jac. Rot. 92. The Bishop of Norwich against Cornwallis. In Debt upon an Obligation bearing date 30 Novemb. 20 Jac. conditioned to perform an Award, the Defendant pleaded that the Bond was primo de­liberat on the 28th of April 21 Jac. after which day there was no Award made. Absque hoc quod cognovit se teneri & firmi­ter [Page 40] obligari modo & forma prout &c. This was held naught because the words modo & forma went only to the date, which was no material or substantial thing; and the words modo & forma do not comprehend any circumstantial part.

And if the Law be so, then this Objection vanishes; for modo & forma and as the Defendant has alledged are all one, and therefore these words shall not extend to comprehend the day, but the request, which is the substance of the Plea: And as in those Cases of modo & forma the Iury may find the Request at another day; so in this Case, since the words as the Defen­dant has alledged refer to no more than modo & forma does, they do not comprehend the day neither; so that the Issue here is well taken and could not be bettered.

But admitting the day to be comprised, yet being after Verdict it is aided by the Statutes of Jeofails, as appears by these Cases, Vid. 5 Rep. Nichol's Case 43. Hob. Rep. Keble and Osbaston. Ibid. Napper versus Jasper and George. Ibid. Wood contra Buden. Pasch. 41 Eliz. C. B. Johnson versus Clerk. In Debt upon an Obligation the Defendant pleaded the Statute of Usury, and that the Plaintiff corrupte aggreeavit & recepit &c. and Issue was taken hereupon, and found for the Plaintiff, and aided, though the matter of the Issue were double, because there was an Issue, though more was in it than needed, and part of it took in an immaterial thing. Otherwise it is, when there is no Issue at all, there a Ver­dict does not mend the matter, Hob. Jennings contra Lee. In Battery the Defendant justified, the Plaintiff replied de in­juria sua propria, without saying absque tali causa; this was found for the Plaintiff, but not aided, because no Issue at all, being taken upon two affirmatives, Hob. Tasker and Sal­ter's Case in Trespass d' Ass. The Defendant justifies by rea­son of the Plaintiffs coming upon his ground: The Plain­tiff replyed, that he was a Copyholder of the Mannor, and that the Lord had for himself and his Tenants of the Plain­tiffs piece, a Way over the Defendant's piece, and Issue was taken thereupon, and found for the Plaintiff and not aided, because the Issue was impossible and so no Issue at all. But where the Issue is joined upon an affirmative and negative, though upon a thing that is not very material, yet it is aided after Verdict; and so in our Case, if the Day were comprised, yet there being a Verdict found for the Plaintiff, it is aided by the Statute of Jeoffails.

The Case in 7 Co. Maunds Case, the where day of the demand was traversed, does not come up to our Case; for there was a Demurrer, but we are here after Verdict.

A second Objection taken to the Issue hath been that it is repugnant to the Declaration; for in the Declaration the Plaintiff alledges that the Mony was not paid, licet saepius requisitus by the Testator; and in his replication the Plain­tiff says that the Testator made no Request, which is a con­tradiction.

Resp. This is no contradiction at all; for the words licet saepius requisitus are only words of form and meerly nuga­tory and surplusage; and are as if they had not béen in­serted; and then what is said contrary to an immaterial and insignificant part of the Count, will not amount to a con­tradiction, 10 Rep. Osborn's Case 130. In an Action upon the Case upon a Promise to deliver diversa bona, viz. unum ful­chrum lecti, Anglice a Field-bedstead with a Testern and Cur­tains of Say, which is more than is in the Latin. Vpon non assumpsit pleaded, and Issue found for the Plaintiff, and en­tire damages given; all was held good, because the rest was only nugatory and surplusage, and signifies nothing, and damages shall not be supposed to be given for what signifies nothing, 22 H. 6. 46. In Debt upon an Obligation to perform an Award, if the Award be naught, it is as much as no Award at all and needs not be performed, 10 Rep. Osburn's Case, 131. b. Plo. Com. 399. in the Earl of Leicester's Case. If a Custom be confirmed by Act of Parliament, which is void in Law, the Confirmation signifies nothing, because a void Cu­stom and no Custom at all are both alike.

So here the Allegation of a matter in Pleading, which sig­nifies nothing, and is inserted only as a form of Pleading, signifies nothing that the Court will take notice of; and then any thing alledged afterwards that's contrary to it, will not make a real contradiction, so as to vitiate the Plea­ding.

But admitting this to be a variance, yet not being mate­rial, it is aided after Verdict, Mich. 15 Car. in B. R. The O­riginal was in Trespass of Assault and Battery; and counts that the Defendant struck the Plaintiffs horse, whereby the Plaintiff fell; and this was held good, and no material va­riance. This cannot be material, because licet saepius requi­situs is only matter of form.

The third Exception was to the Verdict for being contrary to what the Plaintiff has admitted in his Declaration; but this is answered already.

The fourth Exception is for want of Notice that the Mony was paid to Stretton. But Notice in this Case is not requisite; the Case as to that is but thus, viz. A Man pro­mises [Page 42] to pay back so much Mony as I. S. paid to I. D. and the Plaintiff avers so much Mony paid by I. S. to I. D. here needs no Notice. For it is a general Rule that when the Matter does not lie more properly in the Conusance of one than of the other, no Notice is requisite, 9 E. 4. Obligation conditioned to perform an Award, in Debt upon this Obliga­tion Notice of the Award needs not be alledged, because the Defendant may take notice of the Award as well as the Plain­tiff, Mich. 22 Car. B. R. Collet versus Bayfield. Vpon a Treaty of Marriage, a Promise is made to the Father of the Daugh­ter by the Father of the Son, to pay the Daughter 100 l. after the death of the Son, if the survive him; the Father of the Daughter dies, the Son dies, the Administratrix of the Daughter's Father brought an Action upon this Promise, and per Curiam Notice of the Death of the Son needs not be given to the Father of the Son, Page versus Barnes, Pasch. 23 Car. B. R. Entr. Mich. 22 Car. R. 156. A Promise to pay so much Mony at the full age of an Infant; held that No­tice of his attaining his full age needs not be given, because it is as notorious to the one as the other: The like of the Marriage of I. S.

Trin. 23 Car. B. R. Bear versus Choldwich, In Debt upon an Obligation to pay so much Mony upon the Return of such a Ship from Sea, Notice of the Return neéds not be given. But where a thing lies more properly in the Conusance of the Plaintiff than of the Defendant, there Notice shall be given, as in the Cases that have been cited by the adverse party, viz. to give the Plaintiff so much for a Commodity as any other had before that time given him for the like; or to give so much for every Cloth the Plaintiff should buy; or to pay the Plain­tiff what damages he had sustained by a Battery; or to pay the Plaintiffs Costs of Suit. In these and many other like Cases it has béen adjudged, that Notice must be given; for these are such things as lie most properly in Conusance of the Plaintiff. But so it is not in the Case at Bar: For how should he know how much a third person has paid to a Scri­vener, better than the Defendant? Wherefore Notice here is not requisite. And prayed Iudgment pro Quer̄.

Afterwards in Trin. Term this Case was argued again by Howel pro Defendente and by Hardres pro Quer̄. But no new matter urged on either side. And the Court took it ill, that the same Council should argue the same matter twice. Afterwards the same Trin. Term the Court delivered their O­pinions, viz. That licet saepius requisitus was no material part of the Declaration, and therefore no contradiction in the Repli­cation [Page 43] or Verdict. That the Words, as the Defendant has alledged, are but tantamount to modo & forma; that if the Day be part of the Issue, yet that an immaterial Issue is aided after Verdict, if it be good in form. That Notice needs not, because the matter does not rest in the Conusance of the Plain­tiff more than of the Defendant. And Iudgment was given pro Quer̄.

Jo. Hunter the Elder and Younger Plaintiffs, and William Bennison Defendant.

IN Debt upon an Obligation of 300 l. dated the 9th of May, (4) 1653. The Plaintiff declared that the Defendant became bound to him, as aforesaid, the Condition of the Bond be­ing, that if the Defendant and Thomas Bennison their Heirs, &c. do perform the Award, which William Kimp, William Leak, the said Tho. Bennison and Edward Wilson with the Vmpi­rage of William West Esq; should make touching and con­cerning the Title of the Lands, Messuages, Barns and Te­nements called Burrow's Close, Holt and Stubbins, with the Appurtenances, and to give the Title to whom it belongs, and of all other Suits and Differences depending betwixt the said parties, or either of them, so as the same be tendred or ready to be delivered in writing under their Hands and Seals to them or either of them at or before to morrow at 12 of the Clock of the Day, that then, &c.

The Defendant pleaded nul award fait.

The Plaintiff replyed, that after the ensealing of the said Obligation and before the morrow after, viz. on the same 9th of May, 1653. the said Arbitrators and Vmpire made an A­ward concerning the Premises, as followeth, viz.

That Hunter the Elder upon the 2d day of March then next following should pay to the said Defendant William Bennison 7 l. 10 s. for every Acre of the Lands aforesaid, the Barn in­cluded, to be measured by an able Measurer in the presence of the Arbitrators and Vmpire, or some or two of them, af­ter seven yards to the Poll, at the equal charge of both Parties, the said payment to be made in the Church-Porch of Gressingham in that County: Vpon payment whereof the said William Bennison, his Heirs or Assigns should pass, con­vey or surrender to the said Tho. Hunter or his Heirs, or such as he should appoint, all the said Lands with warranty against him and his Heirs, and all claiming under him; or in de­fault [Page 44] of such payment, the said Tho. Hunter and his Heirs should seal and deliver a release of all his claim to the said Lands and every part thereof, and a general Release for all Actions, Suits and Demands. And that all Suits and Controversies, and all Iudgments, Executions and Condemnations had against any of the said Parties, their Children, Servants and A­gents should cease and be no farther prosecuted. Then he lays for Breach,

That the said Award was tendered on the said 9th of May according to the Effect of the Condition, and avers an ad­measurement made the said 2d day of March, 1653. and the Lands upon the same contained 12 acres according to 7 yards to the Poll, and that 80 l. was due to be paid, which the said Tho. Hunter the Elder tendred accordingly, which the Defendant refused, and that the said Tho. Hunter did re­quest him to pass a Surrender to him and his Heirs, which he refused.

The Defendant demurrs and the Plaintiffs joyned in De­murrer.

Hardres argued pro Defendente, That there was good Cause of Demurrer.

1. Because the Submission is void.

2. Because the Award is void.

1. There is no Submission and then there can be no good Award. To make a good Award there are five things re­quisite, 4 Eliz. Dyer 216. b. 1. Matter of Controversie. 2. A Submission. 3. Parties to the Submission. 4. Arbi­trators. And 5. Giving up the Award, Now here wants a Submission: For it appears by the Condition, that the De­fendant and Tho. Bennison are to perform the award of four, whereof the said Thomas is one. So that Thommas Ben­nison is both a Party submitting and a Iudge; he is one that must perform the award, and an Arbitrator too; which is void in Law. Now it is a principal Challenge, if an Arbitrator be one of the Iury, much less must the same person be both Arbitrator and Party.

2. The Condition is repugnant in it self, viz. That the Arbitrators together with such a person being Umpire should make an award; for it is a contradiction that both the Ar­bitrators and the Umpire too should make it: For an Um­pire is a Iudge by himself, and cannot be an Arbitrator.

3. The Award is void. 1. For that the matter submitted is Title to Lands in particular, and that they shall give the same to whom they appertained; so that the award is in the nature of a bargain and sale betwixt the Parties; the one [Page 45] being to pay so much Mony to the other for every acre of Land; but the Title is not determined to whom the Lands do appertain as it ought to be, and therefore its naught; for a matter submitted in particular is not determined; and wherever a thing in particular is submitted, it must be particularly determined one way or other.

8 Rep. 98. Baspoles Case, a Rule is there laid down, that where the Submission is of certain things in specie, with a Clause ita quod the award be made of the Premises, there those particular Cases must be determined, or else the award is void, Vid. 4 Eliz. Dyer 216.

2. The award is naught, because a matter not submitted is awarded; viz. that the Lands shall be measured by others in their presence, which is void in Law; for they cannot give their power to another.

19 E. 4. 1. If Arbitrators award that the Defendant shall secure the Payment of such a summ to the Plaintiff in such manner as they shall advise, this is naught, because after their award made they have no more to do.

3. The award is that the admeasurement shall be at the equal charge of both Parties; which is void, because not within the Submission.

Pasch. 23 Car. B. R. sup. Capel versus Alten, Debt upon an Obligation to perform an award; the award was that the Defendant should pay to the Plaintiff 7 l. and that the Plaintiff should pay for writing the award, and held to be void for that reason.

Trin. 1650. Entr. Hill. 1649. Rot. 673. B.S. Hale contra Massy. Debt upon an Obligation to perform an award; the award was that the Defendant should pay so much Mony to the Plaintiff, and that both Parties should pay the Expences due to the House, where the award was made; and the award was therefore held to be void. By the same reason here, where they have awarded that both Parties shall be at the Charge of the admeasurement.

4. The award is naught because it is not definitive, but con­ditional, viz. That the Plaintiff shall pay &c. or in default thereof, that the Plaintiff shall release, &c. all his Right. For an award is a judicial Act, and such Acts must be definitive and not conditional, Pasch. 13 Car. R. in Banc. Com. Loggins contra Blagrave. Debt upon an Obligation to perform an award, which was made, unless the party shewed cause to the contrary within 6 days, held to be no award.

5 Rep. Samon's Case 77. b. awarded that the Defendant should become bound in an Obligation to the Plaintiff without saying [Page 44] [...] [Page 45] [...] [Page 46] in what sum, and the award was held void for the uncertainty: So here.

5. The award is void, because it concerns Strangers to the Submission. It is that all Controversies, Iudgments and Condemnations against the Parties, their Children, Servants or Agents shall cease, Vid. Samon's Case afore cited. Trin. 5 Car. B. R. Humphry and Ladd. Arbitrament that the Father and Son should release all their Right, whereas the Son was no party to the Submission, held to be void.

And prayed Iudgment, &c.

Jones and Clerk.

(5) UPon an Information for not garbling two and twenty Bags of Spice according to the Statute of 21 Jacob. whereby it became forfeited, &c. Not-guilty was pleaded, and a special Verdict found, viz. That the City of London made a Lease of the Office of Garbler to Hatton for 31 years, rendring 400 l. per annum, the Lease to be void for Non-pay­ment, &c. and to be executed by him, his Deputies or Assigns; and that afterwards the Plaintiff obtained a latter Grant and Lease from the City for three years, the Rent of 400 l. not being paid, within which threé years space these Spices were garbled; and they found the Statute of 21 Jac. that the Plain­tiff was possessed of the said Office by vertue of the said Grant. And the question was whether of the two had better Title to the Office and Execution thereof upon these two Grants?

Atkins pro Quer̄. The Plaintiff is found to be in possession, and that is sufficient to maintain this Information; and Pos­session is supposed to continue, if it be not avoided, Plo. Com. 193. and precise Form is not required in special Verdicts, 4 Rep. Fulwood's Case, 9 Rep. the Countess of Shrewsbury's Case.

Object. Such an Office as this cannot be granted for years, as in 9 Rep. Sir Geo. Reynel's Case concerning the Office of the Marshalsea.

Resp. This Office does no way concern the Administration of Iustice, and it may be executed by a Servant or Depu­ty. And admitting that it be void as a Grant, yet it is a good appointment of an Officer within the Statute of 21 Jac. Vid. 4 & 5 Ph. & Mar. Dyer 152. b. 153. And then Hatton's Lease is avoided by this second appointment, Adjornatur.

Afterwards in Easter Term Gundry argued pro Defen­dente. That it was an Office of Trust, and not grantable ouer, Vid. the Preamble of the Statute of 21 Jac. Vid. 9 Rep. Sir Geo. Reynel's Case, and the Statute is that the Officer shall be appointed by the City, which cannot be, if the Office be grantable for years. Vide 10 Ed. 4. 1. The Office of Chamberlain of this Court; and it is a Place that requires continual attendance in the City. 2. This Grant cannot be taken as an Appointment. Obj. A Grant shall be taken most strongly against the Grantor. Resp. A Grant shall not be con­strued so as to work a wrong. If this be construed to amount to a Deputation, it will be a wrong to the City; and since the intention was to pass an Interest, it will not amount to an Authority; And if an Assignee commit a Forfeiture, the Grantor is not concerned; but if a Deputy commit a For­feiture, this affects his Master. 3 Jac. Gibbs and Seales Case, B. R. A Lease was made of a Mannor, except Waifs, Estrays and Perquisites of Court, &c. afterwards a Lease was made of all these, the Lessee of the Mannor made Baily; and this was adjudged to be no Surrender, because a Baily has only an Authority, in which an Interest will not merge; so if a Lessee of a House afterwards accepts of a grant of the custody of the same House, this is no Surrender; wherefore there is here no Officer, and consequently no Forfeiture.

The same Term Shaftoe argued pro Quer'.

1. This is an Office that may by Law be granted for years, because it is not an Office of Trust, or concerning the Admi­nistration of Iustice; Vid. the Preamble of the Stat. of 21 Jac. 3 Inst. 264. but it consists chiefly in diligence.

Obj. 9 Rep. 39 H. 6. 34.

Resp. 9 Ed. 4. 40. is to the contrary. But 2dly. admit­ting it to be a void Leafe, yet it is a good appointment of an Officer within the Statute of 21 Jac. and it was the intent of the Deed that Jones should have the Office. A Charter of Feoffment may amount to a Tenancy at Will, and a void Act may yet to some purposes have effect. 22 Ed. 4. 5. 27 H. 6. 3. If a Tenant at Will grant over his Estate, tho the Grant be void, yet it determines his Will. 34 Ass. 5. If a Disseisor enfeoff the Disseisee, tho the Feoffment be out of doors, for the Disseisee is remitted, yet a Rent-charge is­suing out of the Land to the Disseisor, is thereby extinguished. But if an Act be made void by Act of Parliament, it shall abail to no intent or purpose at all, Co. Lit. 120. A simonia­cal Presentation does not so much as amount to a Claim. [Page 48] He cited a Case betwixt Love and Jones in this Court 1652. which he said was a Case in point.

Serjeant Evers pro Defendente. 1. The Lease is not good, because it is an Office of great trust. 9 Rep. 50. concerning the Clerk of the Market. But if it were granted for Life or at Will, the inconvenience would not be so great. 5 Ed. 4. 3. 11 Rep. Auditor Curles Case. 2. The City have by the Act of Parliament only power given them to appoint a Gar­bler, and therefore a Lease of the Office void; if they do more than the Act impowers them to do, its void. Obj. It is found that they have power to dispose. Resp. That finding it is contrary to an Act of Parliament, and therefore it is void. Vid. 9 Rep. The Countess of Shrewsburys Case. 3. It is not a good appointment, because the City intended to pass an Interest. Vide 6 Rep. Sir Moyle Finches Case. Co. Lit. 301, 302. A Con­veyance shall not enure to a contrary and than it was designed for. Vide 10 Rep. 57. For the finding of the Iury. 4. The Verdict is, That the City having right to dispose, &c. but the Iury do not find that they have a Right, 1 Inst. 227. which ought to have been more certain. 5. They find that the De­fendant had notice of the Grant made to the Plaintiff, but they do not say by whom it was given. Vide 8 Rep. Fraunces Case, and 3 Rep. Pennants Case, No Forfeiture without precise notice.

Windham pro Defendente. A Grant cannot amount to a Licence. 2 Rep. Buckleys Case. 11 Rep. 48. Obj. Hob. Rep. Collisons Case, A bad Will shall amount to an appointment, by 43 Eliz. Resp. That had the help of an Act of Parlia­ment. But here it is found that the City has the disposing of the Office, and yet they are not Officers themselves, so that they cannot make an Assignment or a Deputation of what they have not; no Man can grant what he has not. And here the second Grant was made upon a supposition, that the first was void for non-payment of the Rent reserved, which can­not be, for no Rent can be reserved out of it, so that the se­cond Grant is void. And all the Court took it, that the Ver­dict was good and certain enough, and that it should be taken by common intendment; and that the word having was a suf­ficient affirmation, as well as the word licet, Plow. Com. 120. And a disposing Power comprehends a Power to make a Lease; and this Office may be granted for years: Nor was this made a Question in 9 Rep. but the seizing without Office found: Nor is it an Office in which the Administration of Iustice is concerned, but a Trust, which is demisable, as the [Page 49] Office of Aulnage, Prisage, &c. nor is any attendance upon a Court requisite. And it appears by the Statute of 21 Jac. that it is assignable: and Baron Nicholas held that Sir George Reynold Case, Rep. 9. was not Law; for by the same reason that it could not be granted for years, it was not grantable in Fee, for there is the same inconvenience. Plow. Com. Nevils Case, 9 Rep. Countess of Salops Case. 9 Ed. 4. 40. And if it be not a good Lease, yet it may be a good Appointment. Vide Dr. Floyds Case, Hob. Rep. And every Grant shall be taken most strongly against the Grantor; and ut res magis valeat; and 8 Rep. Foxleys Case, is no Law, as Baron Ni­cholas said it had been adjudged. 22 H. 6. A Grant by one Iointenant to the other shall amount to a Confirmation. And there is a diversity where an Office is granted to one on­ly, and where it is granted to a Man and his Assigns, or with a Power to make a Deputy. Vide 11 Ed. 4. 1. 39 H. 6. 34. Plow. Com. Nevils Case. Lord Pembrooks Case cited in 2 Rep. Seignor Cromwels Case. 11 Rep. Lifords Case, And the Case of Aulnage is stronger, for that is an Office to which a Seal belongs, with which the Officer is entrusted. Vide 17 Ed. 4. cap. 5. Void Leases have been held good appointments with­in the Statute of Charitable Uses; and Iudgment was given pro Quer'.

Sir Thomas Walsingham envers Sir Henry Baker and the Attorny General.

IN a Bill of Review to reverse a Decree made in the (6) Exchequer-Chamber, the Case was thus, viz. Sir Francis Wyat being seized of the Mannor of East Peckham in Kent, in Tail, the Reversion being in the Crown, ex dono Regis; and also of the Mannor of Hunton in Kent, in Fee, conveys over the Mannor of Peckham to one Moulton in fee, and to secure his Title, conveyed to him also the Mannor of Hunton, who reconveyed it to Wyat, with a Proviso, That in case he should be disturbed in his enjoyment of Peckham, that then he might enter into the Mannor of Hunton. After this Sir Francis Wyat becomes attainted of High-Treason, and his Mannors and Lands thereby forfeited to the Crown; the King enters and seizes, and from him by mean Conveyances the Man­nor of Hunton came to the Defendant since the Forfeiture; and the Mannor of East Peckham, with the Condition annext, [Page 50] was conveyed to the Ancestors of the Plaintiff Walsingham, by the said Moulton before that Attainder; and it was much con­tested concerning the Plaintiffs Title to Hunton; and upon a Bill preferred by the Attorny General against the Plaintiff and Moulton, it was decreed, That the Defendant should be no farther sued or molested for the Mannor of Hunton, forasmuch as the King had covenanted to secure Bakers Title to it; and to this Bill the Defendant demurs. 1. Because Moulton is not made a Party, who is the principal Party concerned in the Interest, and is to have the benefit thereof. 2. Because the Plaintiff has only an equitable Interest, by force of the Con­dition, in the Mannor of Hunton. And upon the debating of this Demurrer, it seemed to the Court that the Plaintiff was a proper Party to the Bill without Moulton, because the Plaintiff is pars gravata, and one against whom the Decree was; and by this Bill the Plaintiff does not seek to recover any thing, but to be discharged only. Vid. 6 Rep. Ruddocks Case. And for the 2d. Obj. An equitable Interest is as available in a Court of Equity, as a legal Interest is at Common Law. Et Adjornatur.

Afterwards in Easter Term 1656. the Court held there was no cause of Demurrer, and it was over-ruled, and the Parties proceeded to the hearing of the Cause, and the Merits were ut supra, with this That there was this farther Ground for the Decree, viz. That it appeared to the Court, that Baker and his Ancestors had been in possession 60 years, and that there were Fines and Non-claims after the Condition broken, and the Entry of Moulton, and therefore the Court decreed as aforesaid.

The Cause being opened and debated, the Plaintiffs Coun­cil urged, That there was no Fraud or Trust in the Case, but matter of Freehold and Inheritance, which is proper for a Tryal at Law, and not for a Court of Equity, without a Tryal at Law, especially in this Cause, wherein none of the Parties are entituled to the Priviledge of this Court, but only in respect of a Covenant with the King, to preserve the Kings Interest, who is a third Person; and there is no reason that a third Person should foreclose a Remedy at Law betwixt two others, when this Covenant does not at all concern one of them; and if there had been no such Covenant, it would not be denied but that the Decree ought to be reversed.

On the other side it was urged, That this was a Court for the Kings Revenue, as well as a Court of Equity; and that it may and often does determine matters in Fait, where [Page 51] the Court has a Iurisdiction without a Tryal at Law, where the Proofs are full, without doubt or difficulty, as a Custom for Multure, Tithes, and Parcel or not Parcel; and there are many Presidents in Court to this purpose: and they cited 11 Rep. Nappers Case 13. a. for two Presidents in a like Case, the one in Chancery, the other in this Court. And the Lord Huntingtons Case, Hob. Rep. They said there were but two Grounds to reverse Decrees, the one for Matter appearing in the Body of the Decree, the other for new Matter arising since; but for want of Proof no Decree can be reversed, for that is a thing that rests in scrinio Judicis, and does not appear in the Body of the Decree; and the Proofs after a Decree are no more to be questioned, than the Verdict of the Jury upon a Writ of Error; and they offered many Presidents to this pur­pose, which the Court ordered to be delivered to the Council of other side, to be viewed, Et adjornatur.

Afterwards in Trin. Term the Court delivered their Opinions. Baron Parker was for affirming the Decree, Baron Nicholas and the Chief Baron for the Reversal of it, and it was reverst ac­cordingly.

Baron Nicholas, No Equity appears in the Body of the De­cree, and therefore no Court of Equity can Decree it. The Earl of Worcesters Case, and Sir Moile Finchs Case, in Chancery, Mich. 41 and 42 Eliz. 4 Inst. 85. Nor is there here any Equity in the Bill.

Obj. It is a Court for the Revenue.

Resp. So is the Latin Court, but that Court will be to little purpose, if all things shall be determined on the English side. 2. No Matters of Freehold are determinable in Equity. 3. Matters proper for the determination of the Common Law, are not determinable in Equity. 4. This Decree is a breach of Magna Charta, which enacts that Tryals shall be per pares, & per legem terrae.

The Mischiefs that would ensue, if this course were allowed, are these. 1. Tryals by Jury would be ousted. 2. A Jury can have better cognizance of Matters of Fait, being de Vi­cineto than the Court, and may judge better of the credibility of the Witnesses, &c. and Writs of Error and Attaint would be put out of doors. 3. At Law if a Man be cast, he may have an Action of a higher nature, which he cannot have here, if he be once barred.

Obj. Matters of Freehold have been determined here.

Resp. That is against the Case of Sir Moyle Finches Case above cited, and many Bills have for that cause beén dismist.

Obj. But there are Presidents.

Resp. None of the Presidents that have been produced, come up to this Case in Point; but that in Hill. 45 Eliz. which is a President without President; and if there be one or two more, that might countenance such a Decree as this, two or threé Presidents ought not to prevail against the fundamental Rules of Law.

Chief Baron. He held that the Court had a Iurisdiction of the Cause; but conceived that the Decree was erroneous for matter apparent. 1. He said there was a Title paramount the King, by vertue of the first Condition, which avoids the King's Title, 4 Rep. Sadler's Case, and a Covenant subsequent cannot controll that in Law nor in Equity. The Reasons given in this Decree confound it: Decrees and Judgments are how shorter how better. 2. Here's a transmutation of Equity; there may be Equity for the King, but there's none for the Party; and the one shall not take advantage of the other's Equity: so that this Equity does not stand upon its right bottom. It is not rectum & Justitia, but obliquum. So the Decree was revers'd.

John Hayes and others Plaintiffs, versus Edward Harding and others Defendants, by English Bill. The Case.

THE King by Letters Patents bearing date the 22th of (1) May, Anno Domini 1637. for preventing and reforming of Abuses in the Trade of Soap-making, and the better Go­vernment of that Trade, did ordain there should be in England and Wales, one Society or Body Corporate of Soap-makers, by the Name of Governors, Assistants and Commonalty of the Society of Soap-makers, to continue for ever, who had thereby power to elect Officers to search for, and try all Materials, and Wares, and Weights and Measures, and to break, burn or de­stroy all found to be, or suspected to be false or adulterate; and that none not Free of that Society, should use that Trade without admittance into the Society, upon pain to forfeit all the Soap they should make; and that all Persons to be admit­ted into the said Society, should take an Oath for their good Demeanor and Obedience to the Ordinances thereof; and that all that had used that Trade for seven years, should be admitted upon a reasonable Fine; for which Charter of In­corparation they gave the King 43000 l. besides 6 d. a Tun impost upon Soap; and divers Ordinances and By-Laws were made by the Corporation, and confirmed according to 19 H. 7. And amongst the rest, That any Person that had served as Apprentice therein for seven years, might be admitted. The Plaintiffs were of the Corporation, but not the Defendants, nor had they been Apprentices for seven years, but used the same, the brought up to other Trades; and for using there­of, their Goods and Vessels were seized, &c. whereupon they brought their Actions at Law which were yet depending.

Whether this were a good Charter of Incorporation, or a Mo­nopoly, within the Statute of 21 Jac. cap. 3. was the Que­stion.

It is urged for the Defendants, That Soap-making is not a Trade within the Act of 5 Eliz. cap. 4. But I conceive that it is within that Statute, for it is an Act and Manual Occupa­tion, and requires great skill and labour; and the 5th of Eliz. is a beneficial Law made pro bono publico, and therefore must have a liberal and favourable construction for the advancement of Knowledge and Experience in all Arts and Mysteries, and Manual Occupations, for without that the Common-wealth cannot be well served; and this Law has ever been expounded in a large and beneficial Sense. Pasch. 13 Car. in B. R. Apple­toft versus Sturton, An Action of Debt was brought against a Tagger of Points, for using that Trade, not having served, &c. which is a Trade of low and mean Concernment, to which he pleaded the Custom of London, That a Man who had served an Apprenticeship to one Trade, might exercise any other; and the Custom found against him, and Iudgment given against him accordingly in Mich. 14 Car.

Mich. 22 Car. Johnson versus Wilnerford. In an Information upon 5 Eliz. cap. 4. against a Draper in Norwich for using that Trade, not having been an Apprentice, &c. It was ad­judged that he was within that Statute, within the word My­stery, which is a large and extensive word; but the Informa­tion was quasht, because it was not averred that he did not use the same Trade at the time when the Statute was made.

Pasch. 22 Car. Huttons Case, For exercising the Trade of hafting Knives in York, not having served as an Apprentice; &c. In an Information for 11 Months, one Month was found, but nothing said of the rest of the time; and the Court doubted what should be done in that Case, whether a new Tryal or a Repleader.

In our Case Soap-making is an Art, a Mystery, a Manual Occupation, and of so long continuance, that for ought ap­pears to the contrary, it was in being when the Statute was made, and is as necessary a Trade as others that are named in the Act: and consequently a By-Law or Ordinance to restrain such as have not served as Apprentices, &c. from using it, is a good By-Law, and consonant to Law.

But admitting it not to be within the Statute, but that it is a new invented Manufacture; it is then to be considered when it was first invented. If at the time of the granting this Patent, then tho it had been granted to a single Person, it might have been good notwithstanding the Act of 21 Jac. cap. 3. of Monopolies, and would hold good for 14 years, if not contrary to Law, or prejudicial to the Common-wealth, or to the first Inventors.

But waiving all this, I conceive this Patent not to be within the said Act against Monopolies.

I know very well that common and vulgar Iudgments run high against all such Patents, and condemn them before they understand them, as being contrary to the Liberty of the Subject, and the freedom of Trade; but they that consider them better, are not so hasty and rash in their Censures: For certainly upon a serious consideration all such Patents and By-Laws as tend most to the well regulating and order­ing of Trades, and the better management of them, so that the benefit of them may be derived to the greater part of the People, though with a prejudice to some particular Persons, have always been allowed by the Law; but Patents which tend to the engrossing of Trade, Merchandize and Manu­facture, tho of never so small value, into one or a few Hands only, have always been held unreasonable and unwarrantable; and therefore I agree to the Case in 11 Rep. of Monopolies, That a Grant of the sole making of playing Cards to one Man, was a void Grant, because injurious to the Publick, in regard such a Grantee might set what Prizes he would upon them: But our Case is quite another thing; for here is an Incorpora­tion consisting of many Persons using this Trade, and there is liberty given to all others to be admitted, if they have served their Apprenticeships; and tho they have not, yet with the Corporations leave they may be admitted; and this diffe­rence is grounded upon many Authorities.

2 Ed. 3. 8. Jo. de Bretaignes Case, The King granted that all Ships that should come to such a Haven, should unlade at such a place only, for the better answering to the King's Duty of Custom. This was adjudged a good Patent, and yet the Merchant is under a strict injunction which may be prejudicial to him.

A Grant lately made to incorporate Coachmen, and that none should drive a Coach without Licence, held good.

Hill. 43 Eliz. in B. R. Tailor versus Brown, Entr. Hill. 41 El. Rot. 450. The King granted to the Corporation of Weavers in London, that none should intermeddle in their Trade, unless he were of their Fraternity; the Grant was held to be good, there being a Rent reserved upon it: But because the Plaintiff could not prove that the Defendant had intermedled; Iudgment was given against the Plaintiff.

Mich. 43 and 44 Eliz. in B. R. Hawkeshead and Ward, The King granted to the City of London, That all Persons bringing into London salable Commodities, should pay so much for Toll; this was held to be a good Grant; and yet generally speaking, it may seem to be against the Liberty of the Subject.

22 H. 7. 89. Keilw. Rep. It appears there, that Pevensley in Sussex, part of the Dutchy of Lancaster, was made a Mem­ber of the Cinque-Ports by the Kings Letters Patents; and in the Cinque-Ports the Inhabitants have a Priviledge to be im­pleaded there, and not elsewhere.

The Law is the same with respect to By-Laws; such of them as serve for the good Government of a Society, are good in Law.

Mich. 6 Jac. Bonners Case, in B. R. There was a By-Law made in a Leet, that none should receive any to inhabit there, that was not born in the Leet, or had not inhabited there by the space of three years, unless he brought a Testimonial of his Good Behavior, and shewed it to the Constable, under a certain pain; this was held to be a good By-Law, and yet it is against the general liberty of the Subject, by which any Man may go and live where he please.

Mich. 21 Jac. B. R. Vpon a return made by the City of London, of a Hab. Corp. for a Bricklayer, the Court held that By-Laws might well regulate and order Trades; as that one Baker should bake nothing but White-bread, and another no­thing but Brown, &c. for this is no restraint properly, but an ordering of Trade; and of this a President was cited temp. H. 4. one Gascoynes Case.

Pasch. 4 Jac. in B. R. A By-Law that none in London should receive a Iourny man not Free of the City, held good; yet such By-Laws tend to abridge Trades, and the liberty of the Subject; but being for the better Government of Trade in general, they are allowable.

5 Rep. 63. The Chamberlain of Londons Case, A By-Law, that every Man shall bring his Cloath to such a place in Lon­don to be searched, and should pay 1 d. held good, because it tends to the prevention of Fraud and falsehood: so here the Grant being for the preventing of such Mischiefs, and for the well-ordering of the Trade, and having them expert in it, that exercise it, is a good Grant.

Obj. 11 Rep. The Case of the Tailors of Ipswich.

Resp. That Case does not come up to ours, for the restraint there was too general, and against the Statue of 5 Eliz. cap. 4. Wherefore he concluded that the Grant was good.

The Attorny General versus Shirt.

(2) THE Attorny General at the Relation of Sir William Waller preferred a Bill in the Exchequer-Chamber against Shirt for Prisage, Shirt having imported nine Tuns and a half [Page 57] of Wine; in which Case it was urged, that the Duty ought to be paid as well as if there had been ten Tuns; for otherwise the King may easily be defrauded of his Duty, for Merchants will import but such quantities in every Vessel on purpose to defraud the King; so that it is fraud apparent. And upon Bill and Answer (the Defendant in his Answer denying the Fraud) without any proof, upon shewing of Presidents, sc. 11 Maii, 5 Car. Sir William Waller and others against Derricke, fol. 292. and Pasch. 6 Car. fol. 314. and Mich. 9 Jac. fol. 220. Sir Thomas Waller versus Poole, and 16 Jan. 13 Jac. Single­ton and Gamon, and 28 Jun. 8 Car. Sir William Waller contra Atkins, In the Books of Decrees in this Court, (by which it appeared that the Court had declared such Importations ap­parent Fraud, without proof; and declared against them, and gave notice accordingly to all Merchants in all Ports of England) and also upon the view of an ancient Account in Mich. 16 Ed. 3. in this Court of Prisage taken upon the Im­portation of nine Tuns only in a Ship called the Trinity of London; the Court declared this to be Fraud apparent, and decreed Prisage to be paid; but if under nine Tuns be im­ported, no Prisage is due, as was agreed by the Court.

Hancocke versus Price.

IN Ejectment for 3000 Acres of Waste: Inter alia, after a (3) Verdict for the Plaintiff, it was moved in Arrest of Judg­ment, that an Ejectment does not lie of Waste for the uncer­tainty what it means.

Baldwin pro Quer'. There is a diversity betwixt a Precipe, in which the Demand must be certain, and an Ejectment, which lies de Pomario, de Cottagio, &c. of which a Precipe doth not lie, 10 Jac. Rethoricke and Chappels Case; so de por­tione Decimarum, Price and Wood, Hill. 5 Car. Rot. 181. in B. R. so of a Cole-mine, 5 Jac. B. Cumming and Kimming; so of a Boillary of Salt. Mich. 36 and 37 Eliz. and Palmer and Umphries Case, Ejectment de pecia terrae, Iudgment in that Case was reversed in the Exchequer-Chamber; but if it had been de pecia terrae containing so many Acres, it had been well enough; so Ejectment of a Close of Land containing so many Acres good, 6 Jac.

Shaftoe on the same side. 1. The Law takes notice what Waste Ground is. Vide the Statute of Merton, cap. 4. which speaks de Vastis, Boscis & pasturis, Vide 2 Ed. 6. the Statute of Tithes, Ejectment lies de Cubiculo, Mich. 30 and 31 Eliz. [Page 58] Brandons Case, And there Wray Chief Justice cited a Iudg­ment in 29 Eliz. where Ejectione Firmae was brought de quadam fabrica, and good; and in 21 Jac. de terra montana, good.

Finch pro Defendente. A convenient description and cer­tainty is requisite; as de domo has been held ill for the un­certainty, 22 Jac. Banc. R. ent. Warren and Walker, de terra montana is naught; and for that cause upon a Writ of Error out of Ireland, a Iudgment has been reversed, 18 Jac. in Banco Regis, Stafford and Mackdonnels Case, upon conference betwixt the Iudges, Vide 16 Ed. 2. Warr. Chart. that Eject­ment lies not de pastura: So here the word Waste is uncer­tain, and may comprehend Land of any quality, and the Sheriff will be at a loss what Land to deliver; and of that Opinion was the Court; and afterwards the Plaintiff re­leased the Waste and Damages, and took Iudgment of the residue.

Protector versus Cutterel.

(3) SIR John Lewis was outlawed at the Suit of Whitmore, the Outlawry was certified here; and upon an Inquisi­tion a Lease was found of 60 years, if such a one should so long live. Cutterel hereupon appeared as Terre-tenant, and demurr'd to the Inquisition, and there was a Joinder in De­murrer.

Tucke pro Defendente. 1. Except. Because the Writ up­on which the Inquisition was taken, recites the Outlawry to have been in 18 Car. and does not say of the Reign of the King.

2. Except. The Inquisition has found a Lease at the time of the Outlawry, but not at the time of the Inquisition, which ought to have been done, Vide 21 H. 7. 32. 7 H. 7. 3.

3. Except. The beginning and end of the Term are not found, which ought to be: An Inquisition ought to be as certain as an Indictment or Declaration, Vide 5 Rep. 120. b. 3 H. 7. 11, 12. Plow. Com. 202. Co. Inst. 303. As this In­quisition is found, the Party grieved can have no remedy, because here is no certainty that he can plead to, to avoid it. Vide 4 Rep. Palmers Case, the same Point.

4. Except. If such a one so long live, and the life of the Cestuy que vie is averr'd indeed, but no place, 6 Rep. 47. and 3 Ed. 4. 27.

Obj. There is here no Tenant before the Court, for Cut­terel does not make himself a Title, Vide Stamf. Prerog. 63, 64, 65. 37 Ass. 10.

Resp. If he were to plead, he ought to make himself a Title; but this Inquisition is such as he is not obliged to plead to, Vide 7 Ed. 4. 16, 17, 22.

But the Court was informed that the Defendant was dead, as in truth he was, and no more was done in it.

The Protector against Cory & al'.

SHalmer was Outlaw'd at the Suit of Jenkinson, and up­on (5) an Inquisition taken, the Iury found a Seisin in Fee of a Mesuage, and of several pieces and parcels of Land in T. in the Occupation of such and such, and found the value: They found likewise a Seisin in Fee of two Marshes in T. called by particular Names, and their value, and in whose Occupation. Cory and others appeared as Ter-tenants, and demurred; Joinder in Demurrer.

Hardres pro Defendentibus. The Inquisition is uncertain, because it is not found how much of these Pieces were arable, and how much pasture, which ought to have been found, that the Terre-tenants may know what in particular they are to have back out of the Kings Hands. 11 Rep. 55. Savils Case 11 Rep. 25. b. Harpurs Case, de decimis, ill. De­tinue of a Box with Charters, ill without shewing their number and nature, because the thing it self is to be recovered; other­wise in Trespass, Hill. 2 Car. Ent. P. 2. Car. Rot. 361. Holmes vers. Wingreve, De Crofto terrae naught in Ejectment, other­wise in an Assize, because of the View. Tr. 23 Car. B. R. Brown and Webster. So Repl. pro cent. ovibus vervecibus & matricibus, without shewing how many there were of each, naught. Mich. 22 Car. B. R. Moor and Clipsams Case. And Justice Roll there cited a Case in 15 Car. in Ejectment for 40 Acres of Land, Meadow and Pasture held naught; so here in the Case at Bar. The Marshes are likewise uncertainly found; for the certainty of Acres is omitted: but the Court held the Inquisition well, and certain enough for the Marshes; and that an Inquisition might be avoided in part, and be good for the remnant, as here where several Values are found; otherwise if the value of the whole had been entirely found, and Iudgment was given accord­ingly. The Court likewise held that here was a good Terre-te­nant, tho it was only found that the Land was in his Occupa­tion, and that they might join in Demurrer, tho their Occupa­tions were several.

Swan and his Wife against Porter.

(1) THE Plaintiffs preferred a Bill against the Defendant partly in their own Right, and alledged themselves to be Debtors and Accountants, and partly as Administrators to the Wives Mother, but did not alledge to be a Debtor and Accountant. The Defendant pleaded Outlawry in the Baron in 23 Car.

Hardres pro Quer̄. The Outlawry so far forth as it con­cerns the Protector, is pardoned by the General Pardon. But, per Curiam, the Plaintiff ought to have replied, and have made himself capable to have the benefit of the Pardon, by shew­ing that he was not a person excepted.

But the Plea is ill, to alledge Outlawry in the Hus­band, when he and his Wife sue as Administrators, &c. To which the Court agreéd, but said that the Mother of the Wife ought to have been alledged to be a Debtor and Ac­countant, else the Court has no Iurisdiction; and the reason is, because it is presumed that what is recovered must go in satisfaction of the Debt owing to the King, and must there­fore be alledged.

William Preston against Thomas Mercer.

(2) IN Trespass, vi & armis, &c. the Plaintiff declares that the Defendant the 30th of Sept. 1653. and divers times since till the 3d of Nov. 1655. with force and arms, horse-dung, dirt and other filth so near the Walls of the Plaintiffs Dwel­ling-house in London in St. Butolphs Bishopsgate in the Ward of B. did put and lay, that the said Walls became rotten, wasted and broken. And also that the Defendant the 30th of Octob. 1653. and divers times after till the exhibiting of the Bill with force and arms, filth and stinking water, being in the yard of the Defendant's House, near adjoyning to the [Page 61] Plaintiffs said Messuage did make to run; which said Water did pierce the Walls of the said Dwelling-House of the Plain­tiff; and sunk into the Plaintiffs Cellar and House of Office part of the said Plaintiffs house; to the Plaintiffs damage of 60 l. Vpon Not-guilty pleaded, there was a Verdict for the Plaintiff, and 10 l. damages given.

Hardres moved for the Defendant in Arrest of Iudgment. 1. Because the place of laying and putting the filth is omitted; nor is there any place alledged where the stinking Water was made to run; for it does not appear where the Defendant's Yard is. Now this stinking Water is the most material thing in the Case, and the cause of all the Plaintiffs damage; and therefore a place where &c. ought to have been alledged, as in 6 Rep. 47. Lieu del Assets, 4 Car. ..... versus Huggens. In Debt for Rent upon a Lease made in St. Mary le Bow Lon­don of an House, the place where the House stood was omitted; and for that cause Iudgment was arrested after a Verdict for the Plaintiff, Vid. Hob. Rep. 113. a. 121. a. 1st Edit.

2. The Action here brought is an Action of Trespass vi & ar­mis, whereas the Plaintiff ought to have brought an Action upon the Case; for Trespass lies not in this Case, because a Man cannot commit a Trespass in his own Ground vi & ar­mis. If a Man break or pull down a Wall in his own ground whereby another Mans ground comes to be overflown, Action upon the Case lies and not an Action of Trespass, 7 R. 2. Act' sur le Case, 36. And Pasch. 12 Car. B. R. Entr. Hill. 11 Car. Rot. 427. Forber versus Hayes. Action sur le Case, quare aquae­ductum fregit, &c. lies well, unless it appear that it was broken in the Plaintiffs own Soyl, and then Trespass, &c. So here.

Atkins pro Quer̄. The Omission of the place is not mate­rial. It shall be taken to be in the same place that was before alledged, Hob. Rep. 208. 1st Edit. And if that shall not be pre­sumed, yet the Venue coming from one of the places sufficeth, Hob. Rep. Gogle's Case, 189, 190. Where a Way was claimed by Prescription, the Venue came only from the place where the Tort was laid, though the way went through thrée several Townships. And for the Action, Trespass is proper in this Case, for here is a wrong done to the Plaintiff in rotting his Walls.

Hardres. The Case of a way that has béen cited is against the Plaintiff, for there Issue was not taken upon the Prescrip­tion; if it had, the Court held that the Venue ought to have been awarded from all threé places, for that all were ma­terial.

The Court seem'd to be of Opinion against the Plaintiff; but advised the Parties to agree it; and so it was referred to Arbitrement. But the Reference proving ineffectual; the Court gave Iudgment at last pro Querente, after great wa­vering in Opinion and Arguings pro & con.

The Protector against Sir Thomas Ashfield.

(3) SIR Thomas Ashfield being sequestred for Recusancy, and two parts of his Lands in Buckinghamshire seized; In Easter-Term last he came in and pleaded that the Possession of the two parts ought to be no longer detained from him; for that he saith, that he is no Recusant, but is conformable to the Reformed Religion and Doctrin thereof professed in England according to the Laws in such Cases made and provided; and that he never refused to take the Oath of Abjuration specified in the Ordinance made the 19th day of Aug. 1643. and for proof of such his Conformity, that on the 22d day of Septemb. 1655. he took the said Oath according to the said Ordinance, as by Certificate and Oath appears; and that he hath frequented the publick Worship of God in the publick places thereof, and been present at the publick Ordinances of Prayers and Preaching there, as by Affidavit made appeareth. All which he is ready to averr, and thereupon prays to be discharged of the said Se­questration, and restored to his possession of the Premises.

Whereupon the Attorny General craved advice of the Court. And the doubt was, Whether or no Conformity by a Recusant Convict were now a discharge? For that the Statute of 1 Jac. c. 4. directs that such Conformity be registred and certified to the Bishop; and Bishops are now taken out of the way.

Hardres pro Ashfield. The Act gives two parts to the King till Conformity, by one clause; and by another clause this Conformity must appear by the Bishop's Certificate. But though Bishops and all Powers and Authorities committed to them, be taken away, whereby this clause concerning the Cer­tificate is in a manner abrogated, yet the Recusant's power of Conforming is not taken away; and then it is now to be taken as if it had béen enacted, that the party should forfeit two thirds till Conformity, and that no provision had béen made how his Conformity should appear. In which Case Con­formity must be tryed by the Common-Law, and not by Certi­ficate: For, whereever a Statute-Law gives or provides any thing, the Common-Law supplies all necessary Remedies and Requisites.

The Statute of 2 E. 6. of Tythes, gives treble damages, but does not mention how, nor in what Court they shall be re­covered: In which Case the Law supplies it; viz. by Action at Common-Law and a Tryal by Iury, as appears Co. Magn. Chart. upon this Statute.

7 E. 6. Dyer 83. a. By the Statute of 32 H. 8. Tythes are made a Lay-Fee. Now by Exposition upon this Statute they shall be demanded, tryed and recovered as Lay-Fees. So here the Statute allows of a Conformity to be a discharge; but does not provide how this Conformity shall be proved. Why, the Common-Law shall supply that.

2. The Common-Law is the most ancient, general and funda­mental Law of the Land. And the Priviledges of the Church derive themselves only from the Indulgence and Favour of Princes; and they had no foundation in the ancient Common-Law, ex. gra. Sanctuary, and some particular Tryals, that are left to them. And although the Priviledges of the Church are confirmed by divers Acts of Parliament, that hinders not but that there was an ancient Common-Law, in which they had no bottom.

9 H. 7. 2. Profession of Religion is triable by the Bishop's Certificate; yet if the time of a persons becoming profest come in question, that is to be tryed by the Common-Law.

45 E. 3. 18. 50 E. 3. 19. So general Bastardy or unques ac­couple en loyal matrimony is tryable by the Bishop's Certificate. But special Bastardy, as whether one was born or begotten be­fore Espousals: Or whether a Woman be a Man's Wife or not: Or whether she were married to another before: These matters being specially alledged and put in Issue must be tryed per pais.

41 E. 3. 37. 11 H. 4. fo. If the Bastardy or Profession of a third person come in question, or of a person that's dead, it shall be tryed per pais.

By all which Instances it appears that the Law of Holy Church had bounds set to it; and that it took place only in a Case of a general Allegation of Bastardy, Profession, Loyal­ty de matrimony or divorce; and that only so long as the par­ty was alive and a party to the Suit. And that in all other Cases the Common-Law retained its Iurisdiction; and more especially it ought in this Case so to do, where Holy-Church had no finger in the Pye, but by vertue of a Clause in an Act of Parliament, which is now repealed.

3. It is a natural and necessary implication in all Laws, which are nothing but refined Reason, that no Man ought to be punished more than his Offence deserves, but secundum [Page 64] qualitatem personae & quantitatem delicti; and this is the voice of Magna Charta it self, cap. 14.

4 Rep. Copihold Cases, If a Lord impose a grievous Fine up­on a Copy-hold Tenant upon his admittance, the Court shall judge upon a Tryal at Law, whether it be so or not: And so it has beén often held.

F. N. B. 75. a. If a Man be amerced for a Trespass or an Offence outragiously, a Writ de moderata misericordia lyeth, to the end that the reasonableness of it may come in question.

So here; the intent and meaning of the Law was to intro­duce Vniformity in Religion, and to punish such as offend in dissenting from the Religion Established, so long as they con­tinue obstinate. And this appears by the Case of Heresie upon the Statute of 2 H. 4. c. 15. If a Heretick convicted would re­cant, he should be received, and not be punished; but if he re­lapsed, he was to be burnt without more ado. So that that Law conform'd it self to the Law of God, who wills not the death of a Sinner, but rather that he should repent and be saved. And therefore it would be contrary to Reason and the Law of God, not to receive an Offender upon his Repen­tance; or to deprive him of the benefit of his Repentance.

4. If there be no means for a Man to have the benefit of his Conformity, there will be a failer of Justice, which must not be presumed. Nullum iniquum in lege praesumendum est. In such Cases the Law will strain hard to come at Right.

6 Rep. 47. b. Dowdales Case, Debt against an Executor, who pleaded pleinment administer; the Iury may find Assets in Ireland, or in any part of the World, because otherwise there would be a failer of Justice.

15 E. 4. 14. 10 H. 6. 14. If if in Debt or Trespass a matter arising beyond Sea be in Issue, the Tryal shall be here, because else the matter in question would fail of a Tryal.

21 H. 7. 6. b. In Debt upon a Bond to perform the Cove­nants of a Lease, by which Oblations were demised. If the Defendant plead, that before the day of payment the Pope had resumed the Priviledge of Oblations, so that the Defendant could not enjoy the benefit of his Lease, he must alledge this in some place in England, to the end that it may be tryed; else there would be a failer of Right.

2 R. 3. 4. In Trespass for taking of Goods, the Defendant pleaded a Will by which he himself was constituted Executor, and so entituled himself to the Goods in question, which had beén the Testators. The Plaintiff said, that after the Will made, whereby the Defendant was appointed to be Executor, the Testa­tor made another Will, wherein he appointed the Plaintiff to [Page 65] be his Executor. The Defendant pleaded that the Pope by his Bull had delegated such a one to examin this matter, who had by sentence adnulled the Will, by which the Plaintiff claimed. It was resolved, that because this matter was not tryable by the Certificate of any Bishop of England, to whom the Court might write, that therefore some matter must be put in Issue triable per Patriam, ne deficiat Justitia. As in Case of a Deprivation by the Court of Rome; or in case of a Quare Impedit against the Archbishop of Canterbury, if the ability of the person come in question; these shall be tryed per pais, and they shall not be tryed by any inferior Ordinary. So if a Profession in the Order of St. John of Jerusalem be alledged, because there is none to whom the Court can write for tryal of it, it shall be tryed per pais. And the reason of all these Cases is, lest there should be a failer of Justice. Though these things are in their own nature tryable by the Bishop's Certi­ficate; yet where that cannot be had, they shall be tryed per pais. Now this is the Common-Law of the Land, and Magna Charta says, Nulli negabimus Justiciam.

Harwood contra Paty, Mich. 1649. in B. R. in Ejectione firm. Entr̄ Hill. 24 Car. Rot. 78. The question there was, whether or no the Tythes of a Parsonage were extendible by vertue of the Statute of Westm. 2. Because now adays there can be no Bishop's Certificate that the Defendant nullum habet lai­cum feodum. But it was adjudged, that they were extendible, because it was only the permission and indulgence of Princes to give such a Priviledge to the Clergy, because of the Bishops who had a superintendency over the Clergy; but that now E­piscopacy being abolished, that Priviledge vanishes: And that Tythes for the future shall be subject to the Rules of the Com­mon Law. And the Rule in Slades Case 4 Rep. is recurren­dum ad extraordinarium, quando non valet ordinarium. And in consimili casu consimile debet esse remedium. And it was held there likewise that where a Bishoprick is taken away, that general Bastardy and unques accouple in loyal, matrimony &c. shall be tryed per pais, that there may be no failer of Ju­stice. So, I say, in our Case; Conformity must now be tryed by our Law, because there is no Bishop to certifie it.

Atkins argued briefly on the same side; Sed non constat quid inde venit.

Morgan against Morgan.

(4) TRespass & Ejectment of Lands in Breknockshire: Not-guilty pleaded, and a Ven̄ fac̄ awarded out of Mon­mouthshire, being nearest to the place where the Lands lay. After Tryal and a Verdict for the Plaintiff, Griffith moved in Arrest of Iudgment, that there was a mistryal in the Case; and that the Ven̄ ought to have come out of Herefordshire.

1. The Issue ought to have béen tryed in Herefordshire, be­ing the next English County and not in Monmouthshire, up­on the Statute of Rutland, 12 E. 1. For Authorities, Vid. Fitz. Jurisdict. 53 Ass. pl. 382. 14 E. 2. Bro. Judgment, 131. 19 H. 6. 12. 11 H. 4. 12. Bro. Cinque-Ports, 8. 24 E. 3. 42. 21 H. 7. 34. Plo. Com. 220. The Statute of 27 H. 8. does not alter the Law, which makes Monmouthshire, as it is com­monly called, an English County; see the Preamble of the Statute. Nor does that Law make it indeed an English County, it remains a Welsh County still; only the Courts of Law in England have a Iurisdiction given them in Monmouthshire. And if it were expresly made an English County, yet an Issue arising in Wales could not be tryed there; the Conusance of Iuries in Monmouthshire is not enlarged, Plowd. Com. 129, 130. 1 H. 6. 10.

Object. There are Presidents of such Tryals.

Resp. They passed sub silentio, and it was an Vsurpation. For the Tryal ought to be in Herefordshire, as appears by the Books cited, unless it were by consent, Vid. 36 H. 6. 32. Nor is this Ven̄ well awarded; it is awarded of the Neighbour­hood next adjoyning to the place where &c. and not de cor­pore Comitatus, nor from any particular place in Monmouth­shire, Vid. Plowd. Com. Stradling and Morgan's Case. Pasch. 7 Car. Risam and Goodman's Case, Rot. 25. 12. B. Com. Hob. Rep. 266. And prayed that Iudgment might be arrested.

Jones pro Quer̄. Monmouthshire is an English-County by the words of the Statute. Nor is this a Priviledge, but a Burthen. Statutes made for the advancement and furthe­rance of Iustice ought to have a large and beneficial Constructi­on, Plo. Com. 59. ibid. 208. 3 H. 7. 4. As for the 2d Point, the awarding of the Ven̄ is certain enough, Vid. Rast. Entries 267. Adjornatur.

Afterwards in Hill. Term. 1656. Powis argued pro Defen­dente and Jones pro Quer̄.

Powis. The Ven̄ is not awarded from any certain place, Plo. Com. 200. b. acc. 22 E. 4. 3. In Trespass de prox. hundredo. And there is a Mistryal, for that Monmouthshire is not an English County; He cited and relied on these Books, viz. 7 Rep. 21. b. Com. 129. the Stat. of Rutland. 6 H. 5. Jurisdict. 34. 13 E. 3. Jurisdict. 23. Ass. 382. 1 E. 3. 14. 19 H. 6. 12. 35 H. 6. 13. 30 H. 6. 6. b. 3 E. 3. 20. 6 H. 4. 9.

Jones pro Quer̄. Returns of Sheriffs are favourably ex­pounded, 39 E. 3. Bro. Return, 56. 21 H. 7. 19. And the words of the Statute do make this an English County. The King has a Prerogative at Common-Law in Tryals of Issues; and an Act of Parliament does not put him in a worse Condition than he was before, unless he be named, 7 Rep. 14. 2 H. 7. 3. And the Statute adds more Land to Herefordshire, out of which Iuries do frequently come. To this Powis answered, that by the express words of the Statute the Lands added to Hereford­shire are made part of the County to all intents and purposes; which words are not made use of with respect to Monmouth­shire.

In Trin. Term, 1657. Iudgment was arrested.

Baron Nicholas and Parker held clearly that the Tryal in Monmouthshire was a Mistryal; for that Monmouthshire was but made an English County by the Statute of 27 H. 8. within time of memory, and Tryals in prox. Com' of Issues arising in Wales have beén time out of mind and at the Common Law. So that a place newly made an English County cannot have such a Tryal, no more than in Plo. Com. Rice Thomas's Case, Liberties time out of mind shall extend to a place newly taken in. Accordingly Iudgment was given for the Defendant; and this they said was the Opinion of all the Judges in Serjeants-Inn.

Vaughan against Mansel.

IN an English Bill for Multure due to the Plaintiffs Mill, by (5) vertue of a Custom that all the Inhabitants in H. where the Plaintiffs Mill is, ought to grind all their Corn, Grain, Mault and Oatmeal to be used or spent, at the Plaintiffs Mill. After Answer and Depositions in the Cause, the question upon the hearing was, whether this was a good Custom or no? Because (as was objected) that (as the Custom was laid) no man could use, give or any way dispose of any Corn or Grain, but such as was ground at the Plaintiffs Mill; which seemed unreasonable. The Court ordered Presidents to be [Page 68] searched; and all the Presidents produced were of Decrées for Corn and Grain to be spent in their Houses.

Atkins. This is a good Custom, and warranted by Presi­dents and Authorities of Law, Vid. Co. Book of Entries 641. Such a Custom for all Corn spent in such an House, Rast. Entr̄ 591. All Corn growing on 100 actes of Land. And F. N. B. 122. Vid. etiam Harbin and Green's Case, Hob. Rep. A Custom to grind all Corn spent or sold, held to be unrea­sonable; bin for all Corn spent, a good Custom.

Finch pro Defendente. The Custom here is an unreasona­ble Custom, and Presidents cannot alter the Law. But a Custom to grind all the Corn spent in such an House at I. S. his Mill, and not elsewhere, is a good Custom: For there­by it implied that he is not bound to grind all spent, which is unreasonable; for then he could not justifie the giving Poul­try or Horses any Corn, but what must be ground. But the Custom, as here it is laid, is naught; for it obliges the per­sons to grind all their Corn spent; and this diversity was taken and judged in Alwood and Chalworth's Case in B. S. Mich. 1654. It was a Cause that came out of the Dutchy, and was decreéd accordingly.

Chief Baron and Baron Parker. The words & non alibi are implied in such Customs, and signifie no more when ex­pressed. And a multitude of Iudicial Presidents in Court make a Law, as the Case of Concurrent Leases. And many Presi­dents would be reversed, if we should decree against this Cu­stom. And such Customs must have a reasonable Intendment, viz. that all such Corn as is ground must be ground there.

Baron Nicholas contra. Because the Custom is against com­mon Right, and shall not therefore be taken by Intendment. Et Adjornatur.

Afterwards in Mich. Term 1656. the Barons were divided in Opinion, and the Parties agréed upon an Issue to be tryed at Law.

The Protector against Holt.

A Scire fac̄ issued out of this Court, reciting that William (6) Lyme being bound in a Bond of 2000 l. to the late Keepers of the Liberties, &c. by inquisition the 28th of August 1655. it was found upon a Writ of Extent directed out of this Court to the Sheriffs of London, that the said Lyme was then possessed of certain Pearl and other Iewels to the value of 91 l. 18 s. 2 d. and that the same remained in the hands of [Page 69] Robert Holt, and were seized into the Protector's Hands; to shew cause why Execution should not be against him for the said Monies: Who thereupon appeared and pleaded, that before the time of the Inquisition, viz. the 1st of July 14 Car. Ni­cholas Carey was possessed of those Goods, and granted them over to him the same day and year for 44 l. 7 s. Without that that the said Lyme was possessed of the said Goods at the time of the said Inquisition. The Attorny General replied, that the said Nicholas Carey was not possessed at the time, &c. and Issue being thereupon taken, it was found for the Pro­tector.

Hardres pro Defendente. Here is a Jeofail and not amen­dable, not being within the Statutes, because betwixt the Pro­tector and the Party.

1. The Issue is taken upon a thing that is immaterial, viz. upon Cary's possession such a day, and the very day mentioned in and made part of the Issue, and therefore it is naught, Pasch. 1 Car. Entr. Hill. 2 Car. Rot. 425. Constable and Clo­bery's Case, in B. R. In Covenant, The Plaintiff had cove­nanted to go with his Ship with the first fair wind a Voyage to Cales; and the Defendants covenanted, if he should so do, to pay him at his return so much for freight. The Plaintiff al­ledged that he had been there and was returned, and the De­fendants had not paid him: The Defendants pleaded a Plea and traversed absque hoc that the Plaintiff sailed with the first fair Wind. And the Court held this to be an ill Traverse; for the substance of the Covenant is to perform the Voyage, and the first fair Wind is no material part of it.

Pasch. 1 Car. B. R. Entr. Hill. 22 Jac. Rot. 92. The Bishop of Norwich against Cornwallis, In Debt upon an Obligation dat. 30 Novemb. 20 Jac. to stand to the award of, &c. The Defendant pleaded a Plea and traversed absque hoc quod cog­novit se debere & firmiter obligari modo & forma &c. held to be an ill Traverse, because it took in the date of the Bond, which is not material.

So here the possession of Carey such a day before is not ma­terial, issuable or traversable; for if he were possessed at any time before, it sufficeth.

2. The setting forth of the possession of Cary and his Grant to the Defendant is but Conveyance and Inducement to the De­fendant's Traverse, which is not issuable.

11 Rep. Priddle and Napper's Case 10. a. In Attachment sur Prohibition. The Plaintiff declared upon an Vnity of Possessi­on temps dont &c. before the dissolution, &c. of the Tythes and Lands out of which, &c. in such a Prior; ratione cujus the [Page 70] Lands were discharged of Tythes tempore dissolutionis, &c. The Defendant pleaded a Title to the Rectory, without that that the said Prior held the said Lands discharged of Tythes at the time of the dissolution. Issue was taken hereupon, and held to be an ill Traverse. For that the Prescription of Vnity ought to have been traversed; and not the Conclusion or rati­one cujus, which is but matter of form.

Hill. 1 Car. B. R. In Debt against Executors, they pleaded a Iudgment in Bar: The Plaintiff replyed that it was sa­tisfied and kept on foot per fraudem & covinam. The Defen­dant traversed the Satisfaction. And adjudged ill, because it is only Inducement; and the Covin is the material thing.

Pasch. 24 Car. B. R. Allen contra Reeve, In Covenant for not repairing, &c. the Plaintiff shews for breach, that the House was burn'd down through the negligence of the Defendant, &c. and that he did not repair it. The Defendant traversed that it was not burn'd down prout, &c. and adjudged an ill Tra­verse, because the Defendant's not repairing is the substantial part, the other being but Inducement.

Mich. 22 Car. B. R. Lord Roberts contra Luxton, In Scire fac̄ against an Executor upon a Devastavit returned; he plead­ed that he had no Assets at the time of the issuing of the Scire fac̄ absque hoc that he had wasted &c. And this was adjudged to be an ill Traverse; for his having wasted is but Inducement, and the substance is whether or no he had Assets at the time of the first Action brought.

So here the Possession and the Grant of Carey are only Inducement to the Traverse, and not issuable.

3. The Scire fac̄ here is to compel the Defendant to answer for the value of the Goods that he has in his possession, where­as it ought to be to answere for the Goods themselves. For the Value is only to be recovered, when the Goods themselves cannot; and the Protector cannot be said to be out of posses­sion.

But without considering these Objections the Court gave Iudgment for the Protector.

Samuel Reynolds Plaintiff, John Prosser Defendant. In Action sur le Case.

THE Plaintiff declares, That whereas John Lord Abur­gauny, (1) the 1st of April 1647. did by his Writing Ob­ligatory become bound to one George Smithson in 800 l. with condition for the payment of 369 l. to the said George, on the 29th day of March next ensuing the date of the said Writ­ing Obligatory: That the said 369 l. was not paid at the day.

And whereas the said George in Easter Term 1652. in the Common Bench had obtained Iudgment for 700 l. Debt upon the said Bond, and 6 l. Damages against the said Lord.

And whereas on the 24th day of May 1654. the said George had appointed the said Samuel to receive the Principal Mony, in the Condition of the said Bond mentioned, with the Interest thereof then unpaid, and in default of such payment to prose­cute the said Lord, in the name of the said George, upon the said Iudgment for the recovery thereof, to the proper use of the said Plaintiff.

And thereupon the said Plaintiff, the 7th day of June 1654. intended to sue forth Execution against the said Lord, in the name of the said George, of which intent the Plaintiff, the said 7th day of June gave notice to the Defendant.

Whereupon the Defendant afterwards the said 7th of June 1654. at London, in consideration that the said Plaintiff would for­bear to prosecute the said Lord, in the name of the said George, upon the said Iudgment until the end of Michaelmas Term then next ensuing, did assume upon himself, and faitfully promise that the Defendant at the end of the said Michaelmas Term would pay the Plaintiff so much of the Principal Mony, in the Condition of the said Bond mentioned, with so much In­terest thereof as should be then remaining due and unpaid; and the Plaintiff in truth saith, that he giving credit to the said Promise, from thenceforth hitherto hath altogether forborn [Page 72] to prosecute the said Lord upon the said Iudgment; and that at the end of the said Michaelmas Term there was due upon the said Bond, for Principal and Interest, the Sum of 400 l. whereof the Plaintiff then and there gave notice to the De­fendant.

Which the Defendant hath not paid, but refuseth so to do to the Plaintiffs Damage of 700 l.

Vpon non Assumpsit a Verdict was found for the Plaintiff, and Damages given.

Hardres pro Defendente in Arrest of Judgment; the Consi­deration is laid to be, that in consideration that the Plaintiff would forbear to prosecute the Lord Alburgauny upon the said Iudgment, in the name of the said George, by virtue of a Letter of Attorny to the Plaintiff, to receive to his own use from the said George, till the end of Michaelmas Term then next ensuing, the Defendant promised then to pay the Plain­tiff all the Mony due for Principal and Interest upon the said Bond.

This is no good Consideration.

16 Eliz. Dyer 36. b. in Sir Francis Calthrops Case, A Con­sideration is called a cause or occasion meritorious, requiring a mutual Recompence in Deed or in Law; in all Contracts and Bargains there is quid pro quo.

11 Rep. Magd. Colledge Case, resolved, That the Statute of 18 Eliz. for confirmation of the Queens Grants made for Mony, or in discharge of a Debt or other Consideration, does not extend to a Grant made upon no Consideration, which is grounded upon the nature and definition of a Considera­tion.

Doct. and Stud. lib. 2. cap. 24. so far discusses the Point, as to hold that a Spiritual Consideration, or a Promise to build an Alms-house, or to do such an Act for the Honor of God, is not Obligatory, nor that an Action will lie for it; but the Ground there laid down is, That if he to whom the Pro­mise is made have any Charge laid upon him, or any real Damage, or that the Party who makes the Promise has any benefit or profit, such a Promise doth bind in Law; but if neither of these happen, or the Party be in a worse Condition than before, it binds not.

10 Eliz. Dyer 272. A Master promiseth to two Men, that in consideration they had bailed his Servant out of Prison, he would save them harmless; this bound him not, because he had no benefit, nor they prejudice by his Promise; but if a Man promise to pay a Sum of Mony if J. S. will Marry his Daughter or Cosen, or because he has married her, the Per­son [Page 73] who makes the Promise here has a benefit, sc. the ad­vancement of his Daughter, and the Consideration is a con­tinuing one.

Now let us examine the present Case by this Rule. Where is the Cause or Consideration meritorious, which deserves such a Recompence? Or where is the benefit that the Pro­miser receives by it? Or where's the prejudice of him to whom the Promise is made? That the Promiser has no benefit is clear, for he is a Stranger to the Debt, and no way liable to the Iudgment; so that the validity of the Consideration must consist in the prejudice that he sustains to whom the Promise is made, or else it is no where to be found: Now his pre­judice can be pretended to be no other than he receives by for­bearance to prosecute, &c.

Now the Plaintiffs promise of forbearance can be no good Consideration, unless it be prejudicial to one, or beneficial to the other. Mich. 6 Car. B. R. Morgans Case, A Lessee promised in Consideration the Lessor would forbear to distrain his Corn unshocked, he would pay his Rent that was due; adjudged to be no Consideration, because such Corn is not distrain­able.

Trin. 2 Car. B. R. Goodwin versus Willoughby. A. promiseth to pay a Debt upon Account, and dies; his Wife promiseth in consideration of forbearance to pay the Mony, when she should have received such a Debt; this does not bind the Wife, unless she were Executrix or Administratrix, or chargeable with the Debt.

Hill. 1650. B. R. Lee versus Newcombe. In Error of a Iudg­ment in an Inferior Court, the Defendant promised that if the Plaintiff would accept the Defendant for his pay-Master, for a Debt due to the Plaintiff by a Stranger, and would for­bear the Defendant 6 months, that he would pay the Debt; adjudged to be no consideration, because the Plaintiff might sue the Stranger notwithstanding, and therefore is at no pre­judice, which is a strong Case to our purpose.

Mich. 1651. B. sup. Hummers versus Hunton. Action sur le Case sur promise, the Defendants Son did endebted to the Plaintiff, and the Defendant being his Mother, but not Exe­cutor nor Administrator to him, nor having any effects of her Sons in her Hands, promised if the Plaintiff would forbear to sue for his Debt, that she would pay it. This was adjudged to be no consideration, because she was not liable to any Suit, so that the Plaintiff had no prejudice by such forbea­rance.

So that it appears clearly that where the Plaintiff is at no prejudice, nor the Defendant recieves no benefit by forbearance; there forbearance is no consideration to ground an Action upon.

But now in our Case the Plaintiff has no real prejudice by such forbearance of Suit by himself, who has but a Letter of Attorny to prosecute in another Mans Name, and receive the Mony to his own use; for though he forbear to prosecute, yet the Party himself to whom the Debt is owing may pro­secute in his own Name, and recover the Debt, and may permit and suffer the Plaintiff to have the benefit of it, ac­cording to the purport of his Letter of Attorny; so that neither the Defendant has any benefit by this forbearance, nor the Plaintiff a prejudice by his Cesser; and therefore here is no good consideration, no more than in the Ease before cited be­twixt Lee and Newcombe.

But if it had been in consideration that the Party himself, to whom the Debt was owing, would forbear Suit, such a Promise would have been good; but as it is, it is no more than if an Obligor should promise to pay the Debt due upon the Bond, if a Stranger would forbear to sue, for the Plain­tiff here is in effect a Stranger.

Pasch. 1651. Pet versus Bridgewater, was our very Case. The Plaintiff there had a Letter of Attorny to receive a Debt to his own use, as here, and power to release and discharge it, which the Plaintiff here has not (for ought appears) and there the Defendant promised, that if he would forbear to pro­secute the Suit, he would pay him the Debt; and it was moved in Arrest of Iudgment there, as it is here, that there was no consideration, because what the Plaintiff does must be in another Mans Name, and the Debt remains due to another Person, who may sue and prosecute for it in his own Name, notwithstanding the Letter of Attorny. And the Chief Justice Roll said in that Case, That it appeared that the Plaintiff had power to discharge and release the Debt, which is for the De­fendants advantage; and therefore he held it to be a good consideration, but said it would have been otherwise, if the Plaintiff had had no such Authority, which in our Case he has not, at least it does not appear that he has; so that this Case is a Case in point for the Defendant; wherefore he prayed for the Defendant, that the Iudgment might be arrested.

Allen argued for the Plaintiff.

And afterwards the Court was of Opinion that the conside­ration was sufficient, and the Plaintiff had his Judgment.

The Attorny General versus Buckeridge, in a De­murrer upon a Plea to an Outlawry.

IN Hillary Term 1652. A Writ of Outlawry issued out of (2) this Court directed to the Sheriff of Berks, as appears by the Margent, to enquire what Goods and Chattels, Lands and Tenements, Ambrose Southby and Thomas Wythens Gent. had on Munday next before the Feast of the Purifica­tion of the Blessed Virgin Mary, in the year of our Lord 1652. at which time they were Outlaw'd at the Suit of Wil­liam Grove in Debt. Vpon a Inquisition taken at Abingdon in that County, the 28th of March 1653. before the Sheriff, It was found that the said Wythens at the time of the said Outlawry and Inquisition was seized in Fee of a Mesu­age, with the Appurtenances in Grove, in the Parish of .... in that County, and of and in five Acres of arable Land, twenty Acres of Meadow, ten Acres of Pasture, and Com­mon of Pasture for all Cattle thereunto belonging in Grove aforesaid, now or late in the tenure or occupation of Edward Dawson, of the clear yearly value of 30 l. &c.

In Mich. Term 1654. Richard Buckeridge comes in as Terre-tenant of a Mesuage, with the Appurtenances, and of a parcel of Ground called Bull-acre, and of a Close called But-Close, and of a Cottage or Tenement adjoining to the said But-Close, containing an Acre and a half parcel of the Premises.

And pleads, that before the said Outlawry, viz. in Hill. Term 1649. the said Wythens was summoned to answer unto the said Buckeridge in the Common Pleas at Westminster, in the County of Middlesex, in a Plea of Debt for 600 l. who de­clared for so much Mony borrowed, and thereupon the said Wythins appeared by Attorny, and suffered Iudgment to go by non sum Informatus for 600 l. Debt, and 5 l. Damages.

That thereupon the 7th day of July, in the year of our Lord 1652. in the same Court of Common Pleas at West­minster, in the County of Middlesex, He made his Election, and prayed a Writ of Elegit to the Sheriff of the said County, which was granted returnable Tres Mich. following, at which time the Sheriff, namely Henry Herne Esq; then returned an Inquisition taken at Wanting in the said County, the 12th of October before, by which it was found that the said Wythens was seized, inter alia, of the Lands, &c. in Feé, of which the se­veral [Page 76] Values were found, a moiety whereof he delivered to the Plaintiff in the Action, the now Defendant, of which the Lands pleaded to are parcel, by virtue whereof he entred, and was possessed, until the said Richard Dew Sheriff aforesaid, by colour, &c. and avers, That the Mesuage and Premises pleaded to, are parcel of the Lands and Premises in the said Inquisition, and the same that were delivered for the moiety as aforesaid; all which, &c. and prays the Lord Protectors Hands may be amoved, &c.

To this Plea the Attorny General demurred, and Buckeridge joined in Demurrer.

1. Except. Because the Party here has pleaded to a Me­suage and parcel of Ground called Bull-acre, and a Close called But-close, and to a Cottage or Tenement adjoining to But-close, containing an Acre and a half, parcel of the Premises, which is not certain enough, the quantity nor the quality of the Lands not being set forth.

Resp. There is certainty enough, by reason of the Names of the Grounds, &c. for greater certainty is not requisit, than to inform the Sheriff what Land in particular he is to put the Party into possession of, as having been unjustly taken from him; and the Names of the Grounds are a sufficient di­rection to him for that: If there be a convenient description and certainty, it is enough. Ejectione Firmae de domo naught, for uncertainty what it signifies, and what it contains, 22 Jac. B. R. Int. Warren and Walker.

But Pasch. 1650. B. Sup. Fry versus Petchey, In Ejectione Firmae de domo vocat. Holts, &c. adjudged good and certain enough.

Mich. 22 Car. B. R. Forcible Entry in uno clauso vocat. B. adjudged good in Butlers Case.

Pasch. 1656. Excheq. The Protector versus Sory and other, An Inquisition found a Seisin of two Marches vocat. &c. and held good upon a Demurrer; so here.

Obj. 11 Rep. Savils Case 55.

Resp. There is not such precise certainty requited here; on­ly it must constare Curiae, that the Lands contained in the Plea, and in the Inquisition, are one and the same.

The Exception as to Cottagio sive Tenemento adjoining, &c. receives this answer. 1. It is alledged to be parcel of the Premises. And 2d. in Pasch. ........ B. R. ........ In Forcible Entry in Mesuagium sive Tenementum in the Occu­pation of such a one, adjudged good.

[Page 77] 2. Except. The Defendant pleads, that he came into the Court of Common Pleas at Westminster, in the County of Middlesex, and made his Election, and prayed a Writ of Ele­git to the Sheriff of the said County, which must be under­stood of the Sheriff of Middlesex, that being the proximum antecedens.

Resp. That Rule ad proximum antecedens fiat Relatio, has many Restrictions, and does not always hold; but Relation shall be had secundum subjectam materiam, and so as to avoid incongruity and absurdity.

28 H. 8. Dyer 14. b. Bolds Case, A Condition, that if such a one die before such a Feast without Issue of his Body (then living, &c.) these words do not relate to the Feast, but to the death of the Party.

4 H. 6. 4. b. Debt against M. the Wife of T. G. of N. Iudg­ment demanded of the Writ, because the Wife is not named of any place as she ought to be; for (of N.) relates (as was objected) to T. G. the Husband, but over-ruled.

18 Ed. 3. 29. Quare Impedit praesentare ad prebendariam de M. Majorem; this word Majorem does not relate to M. but to prebendariam.

11 H. 6. 53. b. In a Praecipe quod reddat, the Tenant pleaded the Warranty of R. Cosen to the Demandant, (sc.) Brother of M. Mother of J. Mother of the Demandant, cujus haeres he is; here the words (cujus haeres, &c.) do not relate ad proximum antecedens, quod nota per Curiam, but secundum subjectam materiam. Bro. pleadings 150.

8 Ass. 26. 7 Ed. 3. 275. In Mortdancester for 2 parts of 40 s. Rent; after Summons it was awarded quod praedict' reditum teneat, &c. this relates only to the Rent demanded.

6 H. 7. 7. In Cessavit, where the Tenure is by Homage, Fealty and Rent, & in faciend' servitia praedicta cessavit, this relates to the Rent only, ut evitetur absurdum.

Now consider our Case, The County of Berks is in the Mar­gin, which is direction for all that ensues; and upon an Inqui­sition taken of Lands in this County, the Party comes in and pleads to part of the Lands so taken, and sets forth his Case, viz. That the outlawed Person was endebted to him, whereup­on he had Iudgment by non sum Informatus in the Com. B. at Westm. in Com. Middlesex, and chuses, and prays a Writ of Ele­git to the Sheriff of the County aforesaid, at the return whereof Henry Herne Sheriff returns an Inquisition taken at Wanting aforesaid, in the Country aforesaid, and delivers him a moiety, &c. to the value of 10 l. and avers the Land pleaded unto, to be parcel of his moiety; In this Case, putting all these [Page 78] things together, it cannot possibly be understood that Com. praedict. should relate to Middlesex, for there is no discourse nor occasion ministred of any thing done in Middlesex, but all the matter and the whole dispute arises concerning these Lands, and it cannot be presumed that the Sheriff of Middlesex should execute an Elegit of the Lands in Com. Berks.

Besides, the Plea is good to a common Intent, and suffi­cient enough.

3d. Obj. It does not appear by the Plea, but that the De­fendant is satisfied his Debt by perception of Profits, and he does not aver that he is not satisfied, 31 Ass. 28. in point.

Resp. He cannot be satisfied by common Intendment, for the Lands extended upon the Elegit are but of 10 l. yearly value, and the Debt is 605 l. and he has but been two years in posses­sion; and if there has hapned any satisfaction by casual Pro­fits, which is not to be presumed, it must come on the other side. Till that appear what we have alledged is sufficient.

At another day, this same Term, the Matter of the 3d. Obj. was argued at the Bar by Hardres pro Defendente.

It appears upon Record, that the Extent upon the Elegit was the 12th of October 1652. for 605 l. Debt, and Costs of Suit, and that the Lands were extended but at the value of 10 l. per annum, and that they had been but two years in Extent at the time of the Plea pleaded, being Michaelmas Term 1654. so that it is not possible the Debt should be sa­tisfied by the extended value.

There has been objected the Book of Assizes 31 pl. 28. and Bro. sur ceo, Pleadings 63. That such averment is necessary.

Resp. That Book does not warrant any such Rule; the Case is no more than thus, viz. In Assize the Tenant as to parcel pleaded a Recovery in a former Assize against the Plain­tiff; and to the residue he pleaded an Extent upon an Elegit, for Damages recovered in the former Assize to 5 l. and that the Lands were delivered to him tanque, &c. and that the Mony was not yet satisfied; Judgment si Assize, &c. The Plaintiff replied, That the Lands extended were his, but the Damages for which they were extended, were recovered a­gainst another Person; this is the effect of the Book.

Which does not warrant that of necessity there must be such an Averment; nor is there any Rule laid down in the Book concerning the Matter: But Bro. in his Abridgment observes, that so it is pleaded in divers places in the Book of Assizes, and thence concludes that it must be pleaded in like manner, or that the Pleading is vicious, which is a meer non sequitur, that because it has been oftentimes pleaded, therefore it is of necessity to be pleaded.

Besides, there is a mistake in saying that it has been ge­nerally pleaded; for in that very year, viz. 31 Ass. pl. 13. In an Assize for Rent, the Tenant pleaded, that before the Grant of the Rent there was an Elegit sued out upon a Iudgment for 100 Marks, and the Lands extended quousque, and assign­ed to himself, and that the Demandants Father, &c. granted and confirmed to him for life; and the Plea was admitted to be a good Plea: But the question was, whether it was not double? sc. The Elegit and the Grant, before the grant of the Rent, for which the Assize was brought; so it is not always pleaded, as Brook says.

2. It was necessary, for any thing that appears to the con­trary, to set it forth in 31 Ass. pl. 38. because the Debt was but 5 l. and it does not appear how long the Land had been extended, so that perhaps the time was passed, within which the Debt might have been run up, and then without doubt the Defendant ought to plead so, if he would hold over.

3. Admitting that it had been most usually pleaded, yet it does not follow, that de jure it must be so pleaded.

It is usually said in the Declaration, in an Action upon the Case, and Debt, licet saepius requisitus; and yet in Plow. Com. Buckleys Case, it is said to be but a form of Pleading, and that if it be omitted, it does not vitiate the Declaration.

In Avowries it is usually said & hoc parat est varificare, and yet it is not necessary, 3 Mar. Bro. Averment 81.

So that the inserting of words into Forms of Pleadings, is not always an Argument that therefore they are necessary; and the Law is so that they cannot be omitted.

It has been farther objected, that it is in the nature of a Condition precedent, and therefore must be averr'd

Resp. That is a mistake; for the Commencement of the Estate does not depend upon the Debt being satisfied, but the Estate is to determine upon it: the Estate is created by Extent, and is not to expire till the Debt be satisfied, and therefore the continuance of it needs not be averred. As 7 Rep. Ughtreds Case, A Man is made Captain of a Fort for his life, and an annuity granted to him for the Exercise of the Office; In an Action for this Annuity, the Plaintiff needs not aver that he has exercised the Office, for the An­nuity would determine upon his not executing it; and there­fore that must come on the other side, being a Condition sub­sequent; and in all Cases of Condition subsequent, the Plain­tiff declares generally without any Averment; and the breach of the Condition must be alledged by him that will take advan­tage of it; it is matter ex post facto; and every Man in plead­ing [Page 80] must alledge that that makes for himself only, and is for his avail, and shall not be driven to alledge what makes against him, which is a strong Case to our purpose; for it does not make for the Defendant to alledge that the Mony is paid, no more than in the other Case that he had exercised the Office; the payment of the Debt is not for the advan­tage of the Extender, &c. but for the benefit of the other Party.

In 2 H. 7. 8. b. there is a notable Case to this purpose, The King granted a Patent directed to the Clark of the Hana­per to pay such a Sum of Mony to the Patentee, receiving an Acquittance for the same; the Patent was shewn to the Clark; and in an Action of Debt for non-payment, it was held and ad­judged that the Plaintiff need not aver that he offered an Acquit­tance, but the other ought to have demanded it; and that it was sufficient for the Plaintiff to say that he shewed him his Patent, because it was for the Defendants advantage to alledge that he demanded an Acquittance, and the Plaintiff re­fused, &c.

So here it is for the advantage of the other side to alledge that the Mony was received and paid.

But it is observed that it is as necessary to make this Averment, as it is to aver the life of a Cesty que vie, &c.

Resp. The Cases are not alike, for there the Life is the li­mitation of the Estate, and not a collateral determination of it, as in our Case.

Now for Reasons and Authorities.

1. Such an Averment is not necessary, because as it hath been said, it is in the nature of a Condition subsequent, and a collateral determination of the Estate.

2. The Estate here is in the Eye of the Law a certain Estate. Vide Borastons Case, 3 Rep. 21. Lands let till an Infant of the age of 9 years comes to 21 years of age, is a certain Estate for 12 years; so here the Estate limited up­on the Extent is by common Intendment for a certain time, i. e. till the Debt be raised out of the extended Value; as if the Debt were 100 l. and the Land extended at 20 l. per annum, it is an Estate for 5 years; and this appears 4 Rep. Fulwoods Case, 67. b. where it is adjudged upon considera­tion had of all the Books, that after the expiration of the years within which by computation the Mony might be raised according to the extended value upon the Elegit, the Party may enter; and the difference taken is betwixt an Elegit and a Statute-Merchant, for there he cannot enter, and the reason is, because the Extender is to have his Charges and Ex­pences [Page 81] over and above the Debt, which are not to be reco­vered upon the Elegit.

11 H. 6. 6. If a Tenant by Elegit bring an Assize, and hanging the Assize the years expire, the Assize shall abate.

19 Ed. 1. Exec. 146. If he be interrupted by War, he shall not hold over.

Whereby it appears, that in Iudgment of Law he had a fixt Estate for a certain term of years.

3. Here we need not aver that the Debt is not satisfied, be­cause it appears upon the Record not to be satisfied; for the Land has been under Extent but for two years before the Plea, &c. and it is valued but at 10 l. per annum, and the Debt is 605 l. so that it appears to be impossible that 605 l. should be raised out of 10 l. per annum in two years time; and it is a Rule in Law, Quod constat clare non debet veri­ficari.

In 8 Ed. 3. 17. If in Trespass the Defendant plead a former Recovery for the same Trespass, he must aver that it was the same Trespass, and betwixt the same Persons, 33 H. 8. Bro. Averment 42. But if in that Case it appear upon Record that it is the same Trespass, and betwixt the same Parties by the word (praedict.) there needs no such Averment; so here.

4. In all Pleadings it is unformal and incongruous to aver a negative.

5. Things casual and accidental are not to be presumed, unless alledged.

6. An Extent is matter of Record, and therfore cannot be avoided but by matter of Record; and then it is not necessary to aver that it is not satisfied, because it must appear by Re­cord to be satisfied.

4 Rep. Commonalty of Sadlers Case, If the King be enti­tuled by double matter of Record, this shall not be avoided by Traverse or monstrans de Droit, but by double matter of Record.

1 H. 7. 14. b. Debt upon a single Bill, payment without an Acquittance under Seal is not a good Plea.

46 Ed. 3. 33. In Debt upon a Recognizance, Acquittance under Hand and Seal is not a good Plea in Bar, but the Party is put to his Audita Querela.

So here the Extent must be avoided by matter of Record, viz. either by effluxion of time, which must appear upon Re­cord, or by surmise upon Record and Scire facias.

For Authorities.

15 H. 7. 1. 26 E. 3. 69. b. Annuity granted till the Grantèe be promoted to a Benefice. In an Action for this Annuity the Grantée needs not aver that he is not promoted, but that must come on the other side, because it is for his advantage. So here.

22 E. 4. 43. Annuity pro consilio impendendo. In an Action the Plaintiff needs not aver that he gave Counsel.

15 H. 7. 15. a. seems to be a Case express in point, where this difference is taken, viz. when payment or satisfaction happens within the time limited by the Extent, there the party whose Lands are extended, must surmize it, and have a Scire fac̄ to which the Extender may answer. But if Sa­tisfaction be through effluxion of time, there needs no such Surmise.

And another difference there taken is that when the Exten­der cannot receive the Profits for all the time limited; then if he will hold over, he must surmise the special matter, as a Disturbance by the party, Surrender or some such matter, &c.

Vid. 4 Rep. 82. Sir Andrew Corbet's Case, 5 E. 3. 59. a. 17 E. 3. 43. b. 21 E. 3. 1. a. 39 E. 3. 30. 21 E. 3. 20. b. 15 E. 4. 5. b. 2 H. 4. 8. b. 12 H. 4. 6. b. 32 E. 3. Scire Fac̄ 101. 19 E. 3. Sugg. 18. 2 E. 3. Scir̄ Fac̄ 109. 15 E. 3. p. 115.

Vpon all which Books it appears, that if the party whose Lands are extended, will avoid the Extent, he must avoid it by surmise upon Record; and that the surmise of satisfaction must come on the other side, as more proper for him; and if so, it will necessarily follow that the Extender néeds not al­ledg, that he is not satisfied. Nor shall he be here in a worse condition, because the Protector claims under the party, whose the Lands are. Whereupon he prayed Iudgment pro De­fendente.

And upon this Argument the Barons were of opinion that such averment is not necessary; because the payment of the Mony is not the creation, but the determination of the E­state, which in Iudgment of Law is certain by the extended Value. Et casus fortuitus non est supponendus. And that this Case differs from that of a Lease for years, if such an one so long live; for the continuance of that life, is the very Essence of the Continuance of the Estate. Et adjornatur.

Afterwards in Hill. Term it was argued by Finch for the Protector.

He agreed to the Case 15 H. 7. 15. And that if the Plea had beén pleaded in Bar to the Plaintiff, the Averment would [Page 83] not have been necessary: But the Case of Prerogative differs from that of a Subject, as in the Case of a Condition subse­quent, 1 H. 7. 24. 38 H. 6. 34. Grant ad effectum, &c. is a Condition and must be pleaded, Hob. Rep. 142. Commen­dam granted upon a Condition subsequent; it must be pleaded, and mispleading vitiates it. 4 Car. Scac. Sir William Broo­man's Case, Direct performance must be pleaded, 4 Car. B. R. Sir Tho. Mounson's Case, Condition must be averred. So here.

For Reasons. 1. All Pleas shall be taken most for the Pro­tectors advantage.

2. The Execution of the Elegit is not well pleaded. The Writ of Elegit appears to have beén taken out thrée years after Judgment given, and there is no Averment of Continu­ances; so that it did erronice emanare. And such an Execu­tion shall not bind the Protector.

Hardres pro Buckeridg. It is now at last admitted to me by the other side, that, if this Plea were betwixt party and party, it would be a good Plea without the averment contended for; and that then it must come on the other side to alledge the Debt satisfied. But the Objection now made is, that this being in the Protector's Case, the Prerogative will make a difference: To which I give this Answer, viz. that I do not find in any Book of Law, that the King's Prerogative will enforce the Subject to alter the nature and manner of his Plea.

I agrée the Protector may alter his own Count or Plea, or waive it and demur; so he may waive his Demurrer and plead. But if he will alter his Declaration, it must be in the same Term, and not in another Term if the party has pleaded to it; nor after Issue joyned, 13 E. 4. 8. 28. H. 6. 2. 5 Rep. 105. a. Baker's Case, 9 H. 4. 6. b. 3 E. 4. 26. a.

But to compel or enforce the Subject to alter the Nature and Form of his Pleading; such a Prerogative is not to be found.

Reasons. 1. This would be to alter the Law it self, which the King cannot do, though he has many Prerogatives allow'd him by Law.

Vid. Plowd. Com. 487. b. Hill. 2 Car. B. Com. In Quare Impedit. If the King by his Attorny enter a Non vult ulte­rius prosequi, the King cannot afterwards procéed in the same Suit, but he may begin anew; and this is by reason of the prejudice which otherwise might accrue to the Subject. The King versus Pickering.

Plo. Com. 246. b. The Lord Barkley's Case. The King's Prerogative is no warrant to him to wrong the Subject. And therefore, if before the Statute de donis conditionalibus an Estate had beén given to the King and the Heirs of his Body, he could not alien it nisi post prolem suscitatum, no more than a common person, and upon this ground.

F. N. B. 7. a. 40 E. 3. 17. The King cannot alter the nature of his Writ.

2d Reason. The Protector here claims under a Subject, and therefore shall not be in a better condition than he under whom he claims; Except some particular Cases, in which the Quality of his person priviledges him, as in case of a de­mand of Rent.

If a Man that is endebted to the King lease his Lands, the King shall not distrain upon the possession of the Lesseé, 22 E. 4. 10. b. 41 E. 3. 26. b.

In a Writ of Right he must alledge Seisin and lay the Esplees, and convey a discent as any other common person, 6 E. 3. f. 219. b.

3d Reason. If the Law were otherwise, it would intro­duce doubt and uncertainty, and the Subject would be at a loss for want of a certain Rule.

Object. But it has béen objected, that this is in the nature of a Condition subsequent, whereof in the King's Case Per­formance must be alledged.

Resp. The Cases cited are not like to ours, nor stand upon the same Reason. I agrée the Case, that where the King erects a Court in a Mannor to do Iustice there, or gives Lands upon Condition to give them to a Nunnery to be erected, or to provide a Chaplein, as in the Cases that have beén quoted; the Patenteés must in Pleading aver the Performance of the Conditions, because they are the grounds and considerations of the Patents, which unless they appear to be performed, the Estate is gone.

Vid. Hob. Rep. Anne Needlers Case. A difference there taken betwixt the Consideration of a Patent being executed and executory. If executory, it must be averred to be performed; and thereby the Estate, that passed by the Patent, is supported. But here we are not in any such Case; but in a Case upon the Stat. of Westm. 2. that gives the Elegit, and subjects the Lands of the Debtor upon a reasonable Extent and value, to Execution till the Debt be satisfied; and as I said before, gives to the Plaintiff a certain Estate by computation of time. And it appears here upon Record, that that time is not yet expired, nor can be, whereas no such thing appears upon Re­cord [Page 85] in the Cases that have been objected; and the payment is collateral to the Estate, and must come in by surmise of the other Party, and that as well in the King's Case, as in the Case of a common person.

1 E. 5. 6. b. A surmise in Chancery by Information, that the Heir held by Knights Service, and was within age, held to be sufficient, and that without Office found, and that the party should answer to it,

3 Eliz. Dyer 197. b. Vpon a forfeiture of Letters Pa­tents a Scire Fac was issued to revoke them; and they were annulled upon it. And the reason there given is, be­cause he that is in by matter of Record, must be displaced in like manner.

2d Object. It is likewise objected that here is no good Ex­ecution by Elegit; because the Elegit went out three years after the Judgment entred, and there are no Continuances, that appear at least; and so the Elegit erronice emanavit; and that of this the Court ought to take notice.

Resp. That is not material; for be the Execution right or wrong, yet it must stand till it be reversed by Error, and it can no otherwise be avoided.

8 Rep. 142. b. Dr. Drury's Case. If a Man that is in Ex­ecution upon an erroneous Iudgment, escape, the Sheriff can­not take advantage of it; for till reversal it remains in force.

In Trin. Term, 1656. In this Court between the Attorny General and Andrew, it was adjudged per Curiam that an E­legit, which had issued two years after Iudgment, was but erroneous, and could not be avoided by the Protector, who came to the Lands by a subsequent Extent. So here.

Whereupon he prayed Iudgment for Buckeridge; and Iudg­ment was given accordingly.

The Protector vers Geering.

UPon an Outlawry at the suit of Spencer, the question (3) was, Whether or no one as Amicus Curiae might ap­pear and quash an Inquisition found upon the Outlawry, for matter insufficient apparent.

Atkins. It may be so quash'd upon Motion without Plea or Demurrer. 1. It is for the honour of a Court of Iustice to avoid Error in their Iudgments, Dyer 201. Errors are like [Page 86] Felons and Traytors; any person may discover them, they do caput gerere lupinum, Vid. Hob. 5. Error, though by con­sent. He cited these Books, viz. 11 H. 4. 45. 8 Ed. 4. Judg­ment 50. 4 H. 6. Office de Court 2. 33 H. 6. Error. 56. 34 Ed. 3. Office de Court 25. 9 H. 6. 46. The Court ex Officio ought to examine and enquire into Errors, though not moved.

For Amicus Curiae, he quoted these Authorities, viz. 4 H. 6. 16. Bro. Office de Court 6. 41 Ed. 4. 21. pl. 6. Bro. Error 49. 7 H. 4. 36. a. per Hull. Pleas Cor. 51. b. 3 Inst. 137. 9 Ed. 4. 9. Bro. Non-ability 30. 3 Inst. 29. 7 Ed. 4. 16. b. 5 Ed. 4. 7. There is a diversity betwixt matter apparent, and matter dehors; and there is a Case in point 7 Ed. 4. 22. b. per tot. Curiam.

1. Obj. There is a diversity where an Error is evident, gross and apparent, and where it is disputable.

Resp. There is no ground for this distinction; the word Evident is only to distinguish an Error apparent in the Re­cord from matter dehors; for Iudges are presumed to know all Errors, and the word Errors supposeth manifest Errors, 21 H. 6. 11. Judgment 16.

2. Obj. If these were allowed, all Records that entitle the King would be overthrown, and his Possession lost.

Resp. Plow. Com. 294. b. and 7 Ed. 4. 18. And if the Office be insufficient, there is no Estate vested. Hob. f. 38. 7 Ed. 4. 16. b. The Sheriff a Disseisor.

3. Obj. To whom shall the Mony be restored, because the Party concerned does not appear?

Resp. 7 Ed. 4. 22. There the Issues and Profits were re­stored to him that was ousted by the Office; the Books do not leave that arbitrary.

2. Reas. Barbarism will be introduced, if it be not admitted to inform the Court of such gross and apparent Errors in Offices.

Shaftoe argued to the contrary.

But afterwards the Barons, viz. Nicholas and Parker took it clearly upon the Book of 7 Ed. 4. That an Amicus Curiae might shew cause to quash an Inquisition; and that Bennets Case which had been urged to the contrary, went off by agree­ment of the Parties.

Woolridge and Dovey.

IN Ejectione Firmae, a special Verdict was found, upon (4) which the question was, whether or no a Prescription for Common of Pasture for all Cattle and Swine in a Forest at all times of the year, were a good prescription, or not.

Obj. It does not appear that it is a Forest, for it does ap­pear to have been disafforested; and a few words in a special Verdict found afterwards, shall not by inference and con­struction make it a Forest again. And it must have been a Forest temps dont, &c. or the prescription cannot come here in question.

Baldwin argued pro Quer', That the prescription was naught, which was agreed to by the Court, and the Councel of the other side; and for not finding expresly that it was a Forest, Iudgment was given pro Defendente.

Cook versus the Earl of Arundel & alios.

THE Case was upon English Bill, at the Suit of Cook, (5) to make the Defendants Lands subject to the payment of a Fee-farm Rent, and to charge them with it; for that the Duke of Norfolk, who had in his hands both the Plaintiffs and Defendants Lands subject, inter alia, to the payment of this Rent, had granted the Plaintiffs Lands to one under whom the Plaintiff claimed, and covenanted that these Lands should be discharged of the Rent, upon which Covenant the Plaintiff now seeks relief, and would have it taken to be a real Covenant which should run with the Land, and charge the other Lands with the whole Rent: But the Court was clear of Opinion, that it was no more than an ordi­nary and a personal Covenant, which must charge the Heir on­ly in respect of Assets, and not otherwise; and thereupon the Bill was dismist.

James versus Blunck.

(6) AN English Bill was preferred to be relieved against the De­fendant for Rent, the Defendant being Assignee of an As­signeé of a Wine-Licence Lease, made by the Plaintiff, rendring 41 l. per annum And it appeared that the Defendant was a pur­chaser of his Interest in the Lease for a valuable consideration, and had no notice of the Rent reserved upon the Original Lease; and therefore the Bill was dismist, because it is only a personal Contract, which does not run with the Licence; as in Case of a Lease of a Fair, rendring Rent, an Action of Debt does not lie against the Assignee; and aequitas sequitur Legem in this Case, especially where the Assignee is a Pur­chaser for a valuable consideration without notice of the Rent reserved.

John Cother Plaintiff, Essex Merrick, &c. Defen­dants. In Ejectione Firmae.

UPon a Special Verdict found the Case was this, viz. (1) Robert Earl of Essex seized in Tail to him and the Heirs Males of the Body of his Grandfather of the Mannor of Pembrooke, died seized; his Son entred and made a Lease by Deéd for 21 years to Sir John Merrick, rendring Rent to the Les­sor his Heirs and Assigns, and died, and after his death the Estate Tail descended upon one, who was not Heir at Law to the Lessor. And the question was, whether this were a good Lease within the Statute of 32 H. 8. to bind the Issue in Tail.

Edgar pro Quer̄. The Lease is not within the Statute. 1. It is not pursuant to the Reservation directed by the Sta­tute, Vid. Statutum. The Reservation must be such as that the Rent may go to the Reversioner, Vid. 5 Rep. Lord Mount-joy's Case, 41 E. 3. 17. 33 H. 8. Bro. Joyntenants 62. At Com­mon Law a copulative shall be taken for a disjunctive, ut res magis valeat, &c. But in positive Laws; such as Acts of Parliament, it is otherwise, Keilway 97. Dyer 45. 2 R. 3. 18. Statues must be pursued, 12 H. 7. 21. Keilw. 21 H. 7. 25. 7 H. 7. 4. 8 Rep. 48. 8 Rep. Pain's Case. 5 Rep. Elmer's Case, Dyer 246. Vid. Keilw. 8. 18 E. 4. 18. Reservation to the Lessor during the Term, Inst. 348. Reservations are taken strictly, because they derogate from the Grant aforegoing, 27 H. 8. 18. Dyer 115. comes up to our Case.

Object. Lit. 348. 3 Rep. 23. Rent reserved to the Lessor and his Heirs shall go to the Lord by Escheat, and 8 Rep. Whit­lock's Case; the Reservation shall go according to the Pro­viso, &c.

Resp. Those Cases differ from ours; for there is a rela­tion to a precedent Act, and the Case is at Common Law; but the words of the Statute require that the Reversioner shall have the same advantage that the Lessor himself, which is not here; for it is a collateral Heir to the Lessor, to whom [Page 90] the Reversion is descended; the Statute extends to ordinary Entails, and not to such unusual ones as this, to a Man and the Heirs Males of the Body of his Grand-Father.

He cited 5 Ed. 3. 7. Special Essoin al auter jour. 12 Ed. 4. Bro. Parliament 79. 22 Ass. 45. Dyer 72, 236. 2 Rep. Wisemans Case, sur. 34 H. 8. cap. 20. of Recoveries.

Finch pro Defendente. It is a good Lease within 32 H. 8. The doubt is upon the Proviso, that the Rent shall go to such Persons and their Heirs as the Lands should have done, if no such Lease had been made, so that if the Reversioner be secure, it sufficeth. Mich. 8 Jac. B. R. Sir James Skidmores Case, per Fleming Chief Justice. Rent reserved to the Issue in Tail only, held to be a good Reservation, though the Lessor himself be omitted.

1. The Rent is incident to the Reversion, when generally reserved, and shall go to the Heir in Burrough English, and to the Heir on the part of the Mother. 7 H. 6. 4. 5 Ed. 2. Avow­ry 207. Pasch. 4 Jac. B. R. Hills Case, A Husband made a Lease of Lands that his Wife held in Frank-Bank, rendring Rent to him and his Heirs; the Rent shall go to the Wife who has the Reversion.

Another Reason he grounded upon the words of the Statute after the Proviso, which vide in Statuto.

Obj. 35 Eliz. Richmond and Butchers Case. Rent reserved to the Lessor and his Executors, during the Term, ceases by the death of the Lessor.

Resp. That Case was at Common Law, and there the Exe­cutors are named, which is particular; but here is the word Heirs, which is a general word.

Hill. 1 Car. B. R. Shury and Browns Case. Rent reserved to the Lessor and his Assigns during the Term, shall be paid during the Term, and shall go to the Heir, per touts les Justices. Whitlocks Case, 8 Rep. comes up to our Case. 10 Car. in Cur. Wardor. Cumberfords Case, A Tenant in Tail makes a Lease, rendring Rent to him and his Heirs, adjudged good; whereas the Power given him by the Statute, is only to re­serve it to him to whom the Reversion belongs. 5 Rep. Mallories Case, in point. Dyer 115. Mich. 18 Eliz. B. R. Rosse and Hartwells Case. The same Point adjudged upon Evidence to a Iury, and compounded. A Lease for three lives, Rent re­served to the Tenant in Tail, his Heirs and Assigns, it shall go with the Reversion. Hill. 39 Eliz. Rot. 341. in Com. B. Reve and Cox, in Warburtons Rep. to the same effect.

In the same Term Powis argued pro Quer', the Case was, Tenant in Tail to him and his Heirs Males of his Body, had Issue two Sons, by two different Venters, and died, the eldest Son entred and made a Lease for 21 years, reserving Rent generally to Himself, his Heirs and Assigns, and died without Issue, having two Sisters, his Heirs at Law; whether by this Reservation the Rent belonged to the second Brother, to whom the Reservation descended, as Heir Male of the Body of the Father, was the question: He argued against it, and that this was a Reservation to the Heirs General, and so the Lease not a good Lease within the Statute. 1. He grounded himself upon the words of the Statute of 32 H. 8. vide Statutum. 2. He said a Reservation was to receive the same construction as if it were a Grant. 5 Rep. 112. Co. Inst. 47. Dyer 45. 21 H. 7. 25. b. Hill. 33 Eliz. in Communi Banco, Richmonds Case.

3. The Heir in Tail in this Case is neither Heir General nor Special to him that made the Lease; he is Heir Special to the Father, but not to his elder Brother, Vide F. N. B. 212. In Formedon. 11 H. 6. 13. 9 H. 6. 24.

Afterwards in Trinity Term it was argued by Windham pro Defendente, That the Rent, as here reserved, should go along with the Reversion; the word (Heirs) shall be expounded se­cundum subjectam materiam. Co. Lit. Rent reserved to a Mans Heirs, shall go to the Heirs on the part of the Mother, if the Lands descended from the Mothers side. 30 Ass. 47. Rent reserved payable at Lady-day and Michaelmas; The Law will transpose the words to preserve the Rent. Plow. Com. Hill. and Granges Case. And it is inforced by these words, during the Term; and if other construction were made, there would be a contradiction in the Reservation. He cited 5 Rep. Mallories Case 111. and Shury and Browns Case above mentioned.

A Reservation is clausula ancillaris, Hob. Stuckley and But­lers Case, and must not precede, but follow after. Vide Hob. in Clanrickrads Case of Covenants, Reservations, Warranties, and other concomitant Clauses. The word Heirs must be ap­plied to the Condition of the Estates, as a Warranty must in that Case cited out of Hobart.

Shafto pro Quer'. The Statute that enables a Tenant in Tail to make such Leases, must be observed, or the Leases will be void. 3 Rep. Brownes Case. 10 Rep. 51. Pasch. 3. Eliz. in Banco Com. Baron and Feme seized to them and the Heirs of the Body of the Husband; the Husband made a Lease rendring Rent to the Heirs of the Body of the Husband; this was held to be no good Lease within the Statute: The words of Reservation mentioned in the Statute (quod vide) are very [Page 92] particular, and direct to what Heirs the Reservation shall be made; and therefore, unless they be pursued the Lease is void. 5 Rep. Montjoys Case. Dyer 307.

Obj. The Rent must follow the Reversion. Pasch. 4 Jac. Co. Ent. 124, 125. Hills Case.

Resp. There it was found to be part of the Custom in Case of Frank-Bank, that the Wife should have the Rent, and that the Rent should go to her without any particular Reser­vation.

11 Ed. 3. Ass. 86. 10 Ed. 4. 18. 21 H. 7. 25. Perk. 697. Co. Lit. 47. 8 Rep. Whitlocks Case. Dyer 187.

2. Obj. The words (during the Term) are objected.

Resp. Those words do not enlarge the Reservation, nor are they more than the Law would imply without them, Expressio eorum quae tacite insunt &c. 5 Rep. 6 Trin. 8 Car. B. R. Bland and Inmans Case. Cro. 1 Rep.

3. Obj. The word Heirs must be taken secundum subjectam materiam.

Resp. It cannot be taken so here; the Reservation is to Robert and his Heirs, and the Brother of the half Blood is not Heir to him general nor special, his Sisters only are his Heirs.

Afterwards in Easter Term 1659. the Barons delivered their Opinions seriatim, for the Defendants.

Baron Hill, The Rent shall go along with the Reversion, and the Lease is a good Lease. The Statute of 32 H. 8. is an en­abling Law, and the Question here depends upon the Proviso, which says, That the Rent shall be reserved to the Lessor and his Heirs, or those to whom the Lands would go, if no such Lease had been made; and in the Exposition of Statutes, the the Judges must make such a Construction as to advance and not to frustrate the Intention of the Makers. Now their In­tent was, that the Rent should go along with the Reversion, and the Lease be good, if by any reasonable Construction in Law it might be so; and so it may be here, for Rent does na­turally follow the Reversion; and the second Brother is Heir to the Estate.

2. The words of the Reservation here are, during the Term; and the other Cases that have been cited where those words are found, have also restrictive words and special Reservations, Vide Dyer 45. Keilw. 88. 10 Ed. 4. 18. 21 H. 7. 21.

Obj. Richmond and Butchers Case.

Resp. The Heir could not have the Rent in that Case, be­cause the Creation of it was but for Life of the Lessor.

Obj. Wootton and Edwins Case.

Resp. There it was limited only to the Assignee; so is Cro. 1 Rep. 288. Inman and Blands Case, upon the same Reason. But here are no special words to restrain the general words of the Reservation; and the Law will marshal words, ut res magis valeat; and the Lease is derived out of the Inheritance, and the Rent reserved upon the Lease shall follow the Rever­sion, and the word Heirs shall be understood secundum subjectam materiam. Co. Lit. 372. 3 Rep. 84. Co. Lit. 12. Hob. Rep. 13. And in our Case the second Brother is Heir to the Entail and to the Reversion. That the Statute, which is an enabling Statute, ought to be expounded, ut res magis valeat. Vid. Plow. Com. The Case of Mines, and 46 b. 3 Rep. Borastons Case, Co. Lit. 183.

Obj. Hob. Rep. 130. Oats and Friths Case.

Resp. There the Reservation was special, here it is ge­neral.

Obj. There is here no privity betwixt the Reversioner and the Lessee to enable him to recover the Rent.

Resp. There is a privity, for he claims under the Lessor per formam doni. Also the Act of Parliament creates a pri­vity, because it gives the Rent, to him, to whom the Rever­sion goes; and Sury and Browns Case, and Mallories Case, 5 Rep. confirmed this; nor does Whitlocks Case, 8 Rep. make against this, it gives only advice; but Austens Case, Dyer 115. seems to be a Case in Point, and so the Abridger ob­serves by a Nota; and 1 Inst. 46. agrees.

So that I hold the Lease to be made pursuant to the di­rection of the Statute, and that it is a good Lease.

Baron Parker accordant. 1. It is the Office of a Judge to preserve, and not to destroy an Estate, if the Exposition be not contrary to the words; as appears in Altonwoods Case, 1 Rep. of a Grant. Bredons Case, ibid. of a Fine. Lit. in his Case of a Condition cy pres. 3 Rep. Linc' Colledge Case, A Lease made by a Bishop contrary to the 1st of Eliz. not void, but voidable, though the words are that it shall be void. And the intent of the Law-makers, which was to uphold Estates, is more to be regarded than bare words; as in 3 Rep. 34. Co. Lit. 236. 5. Rep. 15. Plow. Com. 76. Co. Mag. Chart. 84, 110. If the Reservation had been to the Heir of the Tenant in Tail only, it had been good, as was adjudged in Skid­mores Case. So a Lease for 99 years, if three Lives so long live; and Rent reserved shall ensue the nature of the Land, and go accordingly. Whitlocks Case, 8 Rep. has no influence upon the Case in question; but Wyats Case, Dyer 115. is full in the Point. And there is a diversity where the Person [Page 94] to whom the Rent is reserved is capable of it, and where not; where the Person is capable, the Rent shall go according to Reservation, as during the Term to the Lessor and his Assignes. Shury and Browns Case, and 5 Rep. Mallories Case, of Succes­sors. But if the Person be not capable to take it, then it will be otherwise; as in Inman and Blands Case, cited Cro. 1 Rep. 288. and Richmond and Butchers Case.

Obj. Here is a Clause of Re-entry reserved for non-pay­ment of the Rent to the Heirs of the Lessor, which shews the intent of the Parties to have been, that the Rent should go accordingly to the Heirs general.

Resp. No Implication shall prevail against express words; and that Clause is no part of the Reservation, and the Inten­tion is as strong to the contrary; for the Heirs at Law may enter for a Condition broken, and yet another Person enjoy the Estate, upon and by vertue of their Entry; and concluded pro Defendente.

Baron Nicholas accordant for four Reasons. 1. Because the words during the Term, without more, would have been enough; as appears by the Books, 14 H. 6. 26. 10 Ed. 4. 14. 21 H. 7. 25. Dyer 45. Co. Lit. 47. 27 H. 8. 19. & utile {per} in­utile non vitiatur.

Obj. But the words that follow, viz. to him and his Heirs, are restrictive of the words that go before,

Resp. When there are two Clauses in a Deed, of which the later is contradictory to the former, there the former shall stand; as in 2 Ed. 2 Feoffments & Faits, 24. 4 H. 6. 22. of a Gift in Frank-marriage, rendring Rent, the Reser­vation is void.

2. Resp. Subsequent words shall not confound those that went before, if by construction they may stand together; as in 5 Rep. 112. Mallories Case, the word Successors; and in Shury and Browns Case, the words Executors and Assigns.

2. Because the word Heirs here being a comprehensive word, shall be extended secundum subjectam materiam in all manner of Conveyances; as in a Grant, Grant to a Man and his Heirs, habendum to him and the Heirs of his Body makes an Estate Tail. 35 Ass. 14. 37 Ass. 15. 2 Rep. Baldwins Case; so in Covenant, vide Hob. 275. so in the Case of Rent. Co. Lit. 12. Avowry 207. 7 H. 6. 4. Hob. Rep. 34. Rent shall run accord­ing to the nature of the discent of the Land, to the Heir in Burough-English, to the Heirs in Gavel-kind, to the Heir on the part of the Mother, &c. so here.

Obj. The Lessor of the Plaintiff here is not heir to the Lessor.

Resp. He is his Heir secundum formam doni, F. N. B. 112. And in Bland and Inmans Case, there was no Reversion, as there is here, descending upon the Heir in Tail: and here are all the general words that can be required during the Term, and to him and his Heirs; so that nothing can be more ex­press.

3. A Reservation is clausula ancillaris, and waits upon the Reversion.

4. Because Acts of Parliament must be construed according to reason, ut res magis valeat, and according to the Parties intention.

Obj. If Rent had been reserved thus upon a Feoffment, it would have gone to the Heir at Common Law.

Resp. In that Case there would be no Reversion remaining in the Lessor, as there is here.

Obj. It the Reservation had been to his Heirs Males, it would have been ill.

Resp. In that Case it would have been restrictive, which now it is not.

Obj. Oats and Friths Case, Hob. Rep. 130.

Resp. Because there the Son had nothing in the Lands, and there wanted privity; but here it is otherwise; and concluded pro Defendente.

Chief Baron Widdrington accordant, upon four Considera­tions. 1. Where no Person in particular is named to re­ceive and enjoy the Rent, there the Law determines who shall have it; as in 21 H. 7. 25. Dyer 45. 27 H. 8. 19. 5 Ed. 4. 4. and the Law says, That in such Case the Rent shall go to the Heir together with the Reversion; but when the Lessor particularizeth the Person, there the Law will not carry it far­ther; as in 20 Ed. 4. 18. Assize 86. 2 Ed. 4. 5. Cro. 1 Rep. 207. 14 H. 6. 26. for in that the agreement of the Parties pre­vents the Construction of Law.

2. Where the Reservation is special, and to improper Per­sons, there the Law follows the words, as in Richmond and Butchers Case, and 5 Rep. 97. Randals Case there cited.

3. Where the words are general, as here, during the Term, the Law will expound them accordingly, and according to Law, especially the words, his Heirs, going before, vi. Feoffments & Faits 21. 5 Rep. 19, 112. 27 H. 8. 19

4. When the Estate of the Lessor is a particular Estate, and the Reservation general, there the Law shall make such construction, as that the Rent shall go with the Reversion and Estate of the Land; as in Co. 1 Inst. 112. Avowry 207. 8 Rep. Syms Case: But if it be incident to a Person, it shall not go far­ther; [Page 96] as in Dyer 45. 7 Rep. 19. vide 10 Rep. 116, 117. 38 Ed. 3. 10. 45 Ed. 3. 32. and Dyer 115. by the Pleadings seems to be a Case in point, and concluded pro Defendente, and Iudg­ment was given accordingly.

Jane Roberts an Infant by Hutchinson her Guardian, against John Roberts her Father, and Sir John Roberts her Grand-father.

(2) THE Plaintiff by her Guardian exhibited her Bill to stop John Roberts her Father, who was Tenant by the Curtesie of Lands, of which the Remainder in Tail was in herself, from committing Waste and felling down Timber, which Timber the Defendants had contracted for in the life­time of the Plaintiffs Mother, who was Tenant in Tail of the Soil; and the Court held that in such a Case any Person might become Guardian to an Infant against her Father; and that Waste is by Law a forfeiture of the Fathers Guardian­ship, and that the Contract made nothing in the Case; where­upon the Injunction was continued to stay Waste.

Thomas Tooke Plaintiff, against Ralph Fitz-John, Executor of Robert Fitz-John Defendant.

(3) UPon English Bill the Case appeared to be thus, viz. The Testator made his Will, and made the Defendant his Executor, and afterwards declared his Will to be, That the Plaintiff should have a Bond, upon which he owed the Te­stator 100 l. and died; the Defendant proved the Will, but not this last part and Codicil; and to compel him to do it, the Plaintiff sued him before the Commissioners for Probate of Wills, &c. pending which Suit the Bond was put in Suit at Law, and to be relieved in the Premises, and to have the benefit of this Bequest, and to stay the Suit at Law, this Bill was preferred; And upon the Defendants Answer, and reading the Depositions, and hearing their Testimony, who proved the Testators having given the Plaintiff the Bond in question; it was held per Curiam, That no relief lay here for the Legacy, before the Codicil proved, and that this was no proper Court to prove it in, but that it appertained to the Ecclesiastical Iurisdiction, and that the Common Law has no­thing [Page 97] to do with it, but where that Court cannot determine it, which here they may; but when the Codicil is proved, and made part of the Will, then it will be proper to be relieved here against the Bond, by reason of the Legacy, and not be­fore; but because the Matter was not yet determined before the Commissioners, the Court supported the Injunction till the hearing there, and Dame Swinnertons Case was cited in point in Chancery.

........ versus Chillender & al'.

UPon several Informations here against the Defendants, (4) upon Goods seized that had been imported contrary to the Act of Navigation, and otherwise, and Property claimed by Chillender, Marshal and others; the Case was, whether the Court ought to grant Writs of Restitution to the Claimants up­on giving security ex debito Justiciae or not.

Hardres pro quer'. I conceive not, but that all such Writs are ex gratia Curiae, and to be granted at discretion.

I will first endeavour to answer the Objections and Argu­ments that have been made by Council a fimili; and ad idem by Presidents, and ex reipsa, which being done, I will lay the Case open in an equal Ballance, and then offer some Reasons to the contrary.

The 1st. Object. a simili is the Case of Felons Goods seized; and the Statute of 1 R. 3. c. 3. which provides, that if a Man be arrested or imprisoned for Felony, no Officer shall seize his Goods before Conviction, according to the Law of the Land.

Resp. The Answer is clear, and so declared by the very Act it self, which is Lex terrae; and so Stamford pl. Cor. 193. b. tells us, that that Statute is but a Confirmation of the Com­mon-Law, with which Bracton agrees, who is there cited, f. 52. That in such a Case a Writ lies to deliver the Goods upon security, and there is great reason for it, to wit, The Suste­nance of Persons in Prison, who have no Estates of their own, but depend upon Labour, and live by that when they are out of Prison. But that Statute extends only when the Party is in Prison; for if he be at large, he is not within this Law, but the Officer may seize, and that by the Statute of 25 Ed. 3. c. 14. called the Statute de proditoribus, that upon the 2d Capias the Sheriff may seize, though there be no forfeiture till the Exi­gent; by which it appears that this is the settled Law of the Land, by which the Felon, in the first Case, is to have his Goods; [Page 98] but in the Case at Bar there is no positive Law, Common or Statute, in the Case.

A second Objection has been made, That when Goods are seized after Outlawry, yet upon pleading and giving security, they shall be restored to the Party, though forfeited; and for the same reason it ought to be so in the Case in question.

Resp. It has always been practised so in the Case objected, nor was it ever denied; but in the Case in question restitu­tion has been frequently denied; and many times there is good reason why it should be denied; and Presidents in one Case, unless they be ad idem, are no Guides in other Cases.

The 3d. Objection grounded upon Presidents and Vsage ad idem, may receive a double Answer.

1. As for Usage and constant Practice, I agree that con­stant Vsage, and the course of the Court, is the Law of the Court and of the Land. 2 Rep. 17. Lanes Case. But where the Usage and course of a Court is not constant and certain, there it is otherwise; for an Vsage or Custom interrupted and discontinued not once or twice, but often, cannot be termed Vsage or Custom; for it is of the Essence of an Vsage or Custom to be semper; for as continuance makes it, so dis­continuance destroys it.

28 H. 8. Dyer 30. Copy-holds must be always demised or demisable.

My 2d. Answer is, That Presidents without a Iudicial Ex­amination do not make a Law. 4 Rep. Slades Case 94. resol­ved, That Presidents not made upon a Iudicial debate, but that pass as it were sub silentio, do not make a Law, & mul­titudo errantium non parit errori patrocinium, Vide etiam Mit­tons Case, 4 Rep. 32. b. 6 Rep. Sir John Molins Case, fol. 6. ibid. fol. 73. Sir Drue Drury's Case. 11 Rep. 75. Magdalen Colledge Case. By all which Cases it appears that Pre­sidents not grounded upon Debates and judicial Determina­tions, are not of force enough to be Directions to a Court of Iustice.

3. I answer, That in this Case there are Presidents pro and con in all times, and therefore no argument to be drawn from them.

Now to give an Answer to some Reasons of Law that have been offered to prove these Writs due ex debito Ju­sticiae.

Obj. 1. Any Man may seize, and any thing may be seized upon such a Suggestion and Information, which is a great inconvenience, that Mens Properties should be so invaded whilst it remains doubtful whether there be any forfeiture or [Page 99] not till Iudgment, and the Owners have no remedy in the mean time.

Resp. This Objection may be answered by an Argument à pari, and thus retorted, viz. If any one may seize, then every Merchant may before any body else by intendment can know any thing of the Matter, set up an Informer, who may con­sent to, or not oppose the Writ of Delivery, and not prosecute afterwards; and no other Informer perhaps can, because not privy to the Evidence, by which means the Common-weatlh may be defrauded; and there is as much reason that the Common-wealth, which by presumption will do no Injustice, should have the custody of the Goods, as a private Owner, when there is a dispute whether they be forfeited or not.

So that there being inconveniences on both sides, what Arguments can be drawn from thence to prove these Writs due ex debito Justiciae? Which is as much as to say, that it is Injustice in the Court to deny them, though how to make it Injustice to deny them, where the Presidents are pro and con, and inconveniences equal on both sides, and no positive judi­cial President to direct the Court in what Cases to grant them, and in what not, I cannot comprehend.

For certainly what is demandable, ex debito Justiciae, ought to be grounded upon some direct and positive Law, or upon some undeniable reason, such as that of Magna Charta, nullus liber homo, &c. or upon multitudes of judicial Determinati­ons in all Ages.

Nor can these Writs be concluded to be ex debito Justiciae, though there may have been one or two Iudgments in point; for we see by daily experience that Courts may err in Iudgments; else how comes it to pass that so many Iudgments are after­wards drawn in question, and many Iudgments given upon debate, contradicted and reversed?

I will cite only two Presidents, and those fresh in Me­mory.

The Attorny General versus Andrews, Trin. 1656. The question was, whether the King should be preferr'd before a Subject, who has a Iudgment and execution for his Debt? And adjudged that he should not, if the Subject sued out Execu­tion first, although a Iudgment of this Court was cited to the contrary in point.

Mich. 1656. The Protector versus Geering. The question was whether one as Amicus Curiae might quash an Inquision; and adjudged clearly that he might, though a Iudgment in this Court was cited to the contrary: by which Cases, and many others of the like nature, it appears that Judges are [Page 100] not bound by the Iudgments of their Predecessors; and it would be mischievous if it were otherwise; to wit, That one should be concluded by the Opinion of another in aequali gradu with himself: but when there are diversities of Opinions, and a Point settled upon solemn Debates, the Case may be different.

Now to conclude, since the Argument à simili cannot hold in these Cases to tye up the Hands of the Court, since Presi­dents are pro and con, since there are no judicial Determina­tions in the Case, in what Cases such Writs are to be granted, and in what not, since the inconveniences are equal on both sides; and since the Iudgment given in 23 Car. rather makes against the right of demanding these Writs than for it, What is to be done in such a Case? Why, certainly the Court according to their discretion must be Vmpire, the Judges being indifferent Arbitrators betweén the Common-wealth and the Subject; and being intrusted with the Declaratory Power of the Law secundum bonam & sanam discretionem. And to them I submit this Case, it being most fit for them to provide due remedy both for the Common-wealth and the Subject, so as neither may be defrauded or defeated of their just Rights.

Turner for the Informers.

It is a Contradiction, that the Goods should be forfeited, and yet the Protector recover only Damages. It will be a discouragement to Informers, if the Goods must ex debito Ju­sticiae be delivered to the Owner.

Shaftoe argued on the same side.

Serjeant Maynard contr'. These Writs cannot be grantable ex gratia or favore Curiae, for the Court can do nothing out of Grace or Favour. Ex gratia Principis they may be grantable, but then the Court must have a Privy Seal. They are gran­table ex debito Justiciae, but in what Cases, rests in the legal Discretion of the Court; nor can there be any great inconve­nience one way or other in the Goods remaining, or not, in the custody of the Seizor; for the Informer may prosecute faintly without delivery of the Goods as well as after delivery, espe­cially if it be an Informer set up on purpose. And the Case of a Replevin of Goods taken by the Kings Officer may be di­sputable notwithstanding the Book of 3 H. 7. 1. And the Case of Felons Goods is stronger, and that is Common Law, and by the same reason this should be Common Law too; and so concluded for the Claimers.

Et Adjornatur. Nota, This Dispute lies in a narrow com­pass, and is a Dispute about words more than any thing else; [Page 101] for upon the matter both sides agreé that they are not due ex debito Justiciae in all Cases; so that it is at least in the di­scretion, though not in the Grace of the Court, in what Cases to grant them or deny them, which upon the matter is the matter in question, and yet agreed to on both sides.

Stavely versus Ullithorn.

IN an Action of the Case upon a feigned Action, upon a (5) Bill in Equity, and an Order for a Tryal at Law, the question was, Whether such Lands were discharged of Tithes as having belonged to Fountain-Abbey in Yorkshire, which was of the Cistertian Order; and it was held, per Curiam, clearly that the Council of Lateran, which freed that Order from payment of Tithes, was a general Law received in England. And if these Lands were discharged of Tithes from the time of that Council, that no after Covenant or Con­tract made by the Abbot to pay Tithes, could dispense with this Priviledge, or make them liable to Tithes; for once dis­charged by this Council, and always discharged; for this Coun­cil is as forcible as an Act of Parliament, which concludes all Parties; and the Court were also of Opinion, That if there were any such agreement for payment of Tithes before the Council, that yet this Councel, as a General Law, which includes all Mens consent, had dissolved it, and the Lands were discharged.

The Attorny General against Sir Ralph Freeman, & alios.

UVon English Bill the Case was, a Man was outlawed, (6) and afterwards made a Lease of his Lands, and after­words these Lands amongst others were found by Inquisition, and this Lease was pleaded in Bar to bind the King, being before the Inquisition. And the Court held that a Lease or other Estate made by the Party after Outlawry, and before an Inquisition taken, will prevent the Kings Title, if it be made bona fide, and upon good consideration; but if it be in trust for the Party only, it will not be a Bar; but that no conveyance whatsoever made after the Inquisition, will take away or discharge the Kings Title.

Sheffield versus Serjeant & al'.

(7) UPon a Bill in Equity to be relieved for customary Tithes, in London, the Case was, That the Plaintiffs Title was under a Sequestration by Parliament, and an Order thereupon by the Committee for plundered Ministers; and the question was, whether he was relievable according to the Decree con­firmed by the 37 H. 8. concerning Tithes in London, by which the Mayor of London must be first addrest to: And the De­cree mentions only the Parson, Vicar and Curate, and whether he that is in by Sequestration be within it, not being Parson de Jure, was the question; and it was urged by the Defen­dants Council, that he is relievable there, and therefore not here, because he comes in under the Parsons Title, and as his Lessee; the same Law is of an Impropriator, who is not within the words of the Decree; and that so it was lately ruled in Chancery, which the Court agreed to, but yet were divided in this Case; and it was afterwards by consent re­ferred to compromise.

Anne Gibbons Plaintiff, Anne Prewd Defendant. In Action sur le Case.

(8) THE Plaintiff declared, That whereas it was upon the 18th of November 1652. mutually agreed betwixt them, that the Plaintiff should before Lady-day following, convey over all her Estate and Interest in the real Estate of Wil­liam Prewd, deceased, to the Defendant and her Heirs, and that in consideration thereof, the Defendant should before that time pay the Plaintiff 25 l. and convey unto her and her Heirs so much of the said real Estate as should amount to 50 l. per annum, and enter into a Bond of 2000 l. the said De­fendant afterwards the same day and year in consideration the Plaintiff did promise to the Defendant to perform her part of the said Agreement, did promise to the Plaintiff to perform her part of the same, and avers the real Estate to be worth 500 l. per annum. Vpon Non Assumpsit, and Verdict for the Plaintiff; it was moved in Arrest of Judgment,

By Mr. Atkins, That as the Case is, the Plaintiff must perform her part of the Agreement first, otherwise the Defen­dant cannot convey to the Plaintiff 50 l. per annum out of the said Estate.

Answ. The performance on the Defendants part is not sub modo, or conditional, but absolute and reciprocal by reason of the Agreement; for it is not in consideration that the Plaintiff should convey all her Estate, &c. but in considera­tion that the Plaintiff did agree to it; and the considera­tion upon which the Action is grounded, is a mutual Pro­mise to perform the Agreement. 5 H. 7. 10. b. As if I cove­nant to marry a Mans Daughter, and he Covenants to give me a hundred pounds; so here the Agreement and Promise, which is reciprocal, and gives the Defendant a Remedy up­on Breach made by the Plaintiff, is the consideration, and not the performance of any Act by the Plaintiff.

2. The Plaintiff has as long time by the Agreement to con­vey her Estate, as the Defendant has to convey part of the real Estate of William Prewde.

3. The Agreement and Promise made by the Defendant, is not to convey to the Plaintiff part of the Estate conveyed by the Plaintiff to the Defendant, but to convey part of the real Estate of William Prewde, which may be done though the Plaintiff does not convey any part of her Estate and Interest therein to the Defendant.

2d. Obj. was, That the Defendants part of the Agreement was promised to be performed in consideration of the Plain­tiffs performing her part of the Agreement, which is not averr'd to be performed.

Answer. That is a mistake, for the Defendants Agreement does not depend upon the Plaintiffs performing of any Act, but is, that in consideration that the Plaintiff agreed to do such a thing, the Defendant agreed to do another thing, and the consideration is no other than the reciprocal Promise of one to the other, which is Executory, and upon which the Parties have mutual Remedies; and it is a general Rule, that when the Defendant has a remedy for the consideration of a Promise, that consideration needs not be averr'd to be performed, which is our Case; and afterwards Judgment was given pro Quer'.

Trin. 1655. In this Court, Ernely versus Lord Falkland sur Promise.

THE Plaintiff declared that it was agreed betwixt the Plain­tiff (9) and the Defendant, that their Horses should run a Race, and the Winner to have of the other 200 l. with some other particulars of the Agreement: And that whereas the Plaintiff had promised to perform on his part, the Defendant [Page 104] had promised to perform on his. After a Verdict for the Plain­tiff, the consideration was admitted upon a motion in Arrest of Judgment, to be good, being grounded upon such a reci­procal Promise. But the only question was, whether it was certainly enough laid, or no: For the words were, Whereas the Plaintiff promised, &c. but that too was adjudged to be good and sufficiently certain, Vid. 48 E. 3. 3. Rasepoole's Case, & Mich. 24 Car. Reg. Bragg versus Nightingale, Entr̄ Trin. 24 Car. Reg. 601. & Brockesby's Case, Pasch. 1649. B. R. Entr̄ Mich. Car. Reg. 73.

Sir George Sands versus Sir John Thorowgood and others, Trustees for the Maintenance of Ministers, In a Bill of Review.

(10) THE Case was this: Sir John Thorowgood and the rest of the Trustees had a Decree in this Court against the Plaintiff for 400 l. odd mony, which was accordingly paid; and afterwards the Trustees were altered by an Ordinance of the Lord Protector, and five were put out and five new ones put in; after which the Plaintiff preferred his Bill of Review against those Trustees, that had the Decree against him, omit­ting the New Trustees. Whereupon the Defendants demurred, and shewed for Cause, that the Trust was transferred to o­thers by Act of Law; and therefore they that have the pre­sent Interest and Estate ought to be made parties, and they that are displaced ought to be named; for there is no reason to charge them since they received nothing to their own use. But it was answered, that this is in the nature of a Writ of Error, 6 Rep. Ruddock's Case, which must be brought against the same persons that have recovered; and here the parties sue to be restored to what has been recovered from them, which they must be by the persons that recovered against them. And though the said Ordinance had altered the Trustees, yet the Rules and Methods of Proceedings were not altered by it.

The Court seemed to doubt upon the matter, but at last it was agreed that the new Trustees should be made parties sans prejudice, &c.

Information per Morby versus John Urlin Esquire.

UPON the Statute of 35 H. 8. cap. 17. for grubbing up (1) Wood in Buckinghamshire contra formam Statuti; after a Verdict for the Plaintiff, it was moved in Arrest of Judgment.

1. That it is not mentioned in the Information, that the Wood was growing at the time of the Act made, for so the words of the Statute run, and so it ought to be set forth, as upon the 5th of Eliz. concerning Apprentices, which hath been often adjudged.

2. Because by the Statute of 21 Jac. 1. the Information ought to be brought and tried in the proper County.

Atkins pro Quer'. The Proviso in the Statute is general, and not tied up to Wood growing at the time of the Act, and contra formam Statuti supplies it, if the Law were so; as in Dyer 312.

And as to the 2d Objection grounded upon the Statute of 21 Jac. cap. 14. That is a mistake, for that Law takes place only in such Cases where Justices of Peace or of Assize have power by Law to hear and determine; but by this Act of Par­liament, upon which the present Information is grounded, they have no power at all, for the Prosecution is tied up to Courts of Record; and thus that Law has always been construed; to which the Court agreed; but they conceived the 1st Exception fatal, and that it could not be supplied by the words contra formam Statuti; for they do but make the conclusion upon the Case before set forth, and are themselves no part of the Case, but disclose the result of the Premises, and will not of themselves make a Case without sufficient Premises, which ought to set forth the Law, as it is upon the Statute. Et Adjornatur. But afterwards Judgment was arrested upon the first Exception.

Edward Master Esq; against Sir Herbert Whitefield and Hockin.

(2) UPon English-Bill in the Exchequer-Chamber, the Case was thus, viz. The Plaintiff had Iudgment against the Defendant, Whitefield, for 500 l. in Mich. 1651. in the Upper-Bench; and afterwards in Trin. 1654. the other Defendant, Hockin, obtained a Iudgment against the Defendant White­field for 1000 l. and outlawed him upon it in Mich. 1654. whereupon the 10th of Dec. 1654. the Mannor of Burmarsh was extended of the value of 120 l. per annum, and seized into the Protectors Hands; and in January 1654. the moiety of it was extended by vertue of an Elegit upon the first Judgment; and the Defendant Hockin obtained a Lease of it out of the Exechequer, upon the Extent upon the Outlawry, quamdiu, &c. but levied only by levari the said 120 l. {per} ann. out of the moiety extended ut supra, and permitted the other Defendant and his Tenants to enjoy the residue of the Profits of the said Mannor, to the value of 378 l. per annum; and the Defendant Hockin was decreed to account with the Plaintiff for all the Profits which he had or might have received, without any will­ful or negligent default of his. Quod nota, That the Lessée of an Estate upon an Outlawry shall be compelled to account for the Profits, which he might have received, with a Creditor of the Party outlawed, who has an Interest in the same Lands by Extent.

But afterwards in Easter Term 1658. the Court held that the Lesseé could levy no more than the extended value, and could not enter and take all the Profits, for that the Protector had no Interest in the Lands extended, but only perception of Profits, vid. 21 H. 7. 7. a. accordant per Cur. but the Party may take out a melius inquirend. and have them extended at a greater value; and it was agreed, that the Plaintiff should take the Defendant Hockins place, and pay him 200 l. per an­num, till Hockins Debt were satisfied, and the Outlawry to re­main in force; and the Extent upon the Elegit, after the Extent upon the Outlawry was held void, quoad the Protector.

Gardiner and his Wife versus Parker.

THe Plaintiffs brought an Action upon the Case for words (1) spoken by the Defendant of the Feme Plaintiff, viz. You are a Whore, and I can have a better Whore for a groat, and you get your Living by your Tail; adjudged actionable since the late Act. For that these words imply a continued course of Fornication and Adultery. So to say, Thou art a Whore and wert carted for a Whore: Or, Thou art a Whore and goest down into the Country to vent thy ware: Or, Thou art a Whore, and such a Man's Whore. Iudgment, nisi causa, &c.

The Attorny General versus Alum.

(1) IN an Information at the Suit of the Attorny General, the Case was thus, viz. The Russia Company was incorpo­rated by Letters Patents, 1 and 2 Phil. and Mar. and it was granted to them, That no Person not being of their Company should Trade thither without their leave, on the penalty of forfeiting Ship and Goods. Afterwards by Act of Parliament, 8 Eliz. these Letters Patents were confirmed; and it was farther enacted, That no Person, Subject or other, should Trade thither without leave of the Company; and the question was, Whether or no one that was Free of the Company, might Trade thither without leave of the Company.

Stephens pro Defendente, That he may; for it was not the intent of the Act to exclude them, but Strangers that were not of the Company; and the Act is an Act of Confirmation, rather than of Creation; Besides, 1. there is no inconveni­ence in such Persons trading; and the Act was made to re­dress an Inconvenience.

2. When a particular Benefit is intended, it does not ex­tend to other Persons.

3. It would be a repugnancy to construe the Act so as to re­strain Priviledges granted before the same Act, 8 Rep. 154.

A 4th Reason he grounded upon a Proviso in the Act re­lating to Hull; and cited 8 Rep. Doctor Bonhams Case. That the Priviledges granted to the College of Physitians extended to Graduates without nomination, &c.

Atkins, for the Attorny General. The Act 1st. alters the Name of the Corporation. 2. It alters the Penalty. 3. It makes an alteration in the Traders, viz. That none shall Trade thither, Subject or Denizen, without Licence, which [Page 109] extends to particular Persons even of the Company, to restrain their Trading thither without Licence. The In­tention of the Act was to regulate the Trade, and to ap­propriate it to the Regulation and Gove [...]nment of the Com­pany.

And the Court inclined to be of this Opinion, for the great Inconvenience was the single and separate Trade of those of the Company, and not of Foreigners, who could not Trade without leave of the Company. And the Act is a meer Act of Creation, and to regulate those of the Com­pany, who Trade separate, to the prejudice of the Ioint Stock of the Company. And if it were an Act of Confirmation, it would be a void Act, because the Letters Patents themselves are void, being to appropriate a Trade, which the King can­not do by Law.

The Attorny-General Plaintiff, against the Earl of Westmerland Defendant. In a Plea to a Charge and a Demurrer to it.

(1) THE Lord Brudnel was a Recusant Convict, and the Earl of Westmerland took a Lease of the King of two parts of his Estate in trust for the Recusant, and with a Non-obstante of the Act of Parliament in 3 Jac.

Stevens pro Quer̄. That the King cannot dispense with that Act. 1. Because the Act absolutely forbids it. If the Act had forbidden it sub modo, and under a penalty, it might have béen otherwise, 1 Inst. 117. 3 Inst. 237. Dyer 303. 2 Rep. 3.

2. There is a difference betwixt an Act that barely creates an Offence, which was none before; and an Act that consi­ders a thing as mischievous in its consequences. In the first Case the King may dispense; in the latter he cannot.

3. An Act made pro bono publico cannot be dispensed with: And this is an Act pro bono publico, viz. To prevent Recu­sants from maintaning and nourishing Enemies to the State, Hob. 214. 11 Rep. 88. 2 Rep. 3, 12. 3 Inst. 238. Bract. 132. 4 Rep. Bozoun's Case, Assize 443. 11 H. 7.12.

4. When the Law disables the King to grant, there no Non-obstante can make such a Grant good, Hob. 75.146. Dyer 211, 225.

5. Where the King endangers the breach of his Oath, there he cannot dispense with an Act of Parliament.

Object. The King can pardon Murder, which touches his Oath, Stamf. Pl. Cor. 101. 3 Inst. 236. 12 Rep. 18.

Resp. In Rickaby's Case in the Upper-Bench, 1653. It was resolved that the King could not pardon Murder by a Non-ob­stante.

But in the Case in question, because the Trust did not ap­pear by any matter of Record, the Court would not take notice of it by any matter dehors. But the Court was of Opinion that the King could not dispence in this Case, because he was dis­abled by the Act to grant, &c.

Pawlet vers Freak.

UPon English Bill the Case was, that several Executors (2) were made, and one proved the Will and the rest refused; and he that had proved the Will dyed, and another person took out Letters of Administration; and preferred his Bill in this Court.

And the Court held clearly that by the proving of the Will by one, they are all Executors; and although he that proved the Will dye, yet no other person can administer during the lives of any of the rest. And it does not appear that they who refused, are dead. Whereupon the Bill was dismissed, Vid. 9 Rep. Hensloes Case, and 21 E. 4.

Jones versus Winckworth.

IN Trover and Conversion for Letters Patents of Wine-Licence. (3) After a Verdict for the Plaintiff it was moved in Arrest of Iudgment.

1. That a Record cannot be converted; sed non alloca­tur: For the Word Letters Patents here signifies the Exem­plification of them under the Broad-Seal, and so it is intended in common parlance.

2. Because the Date of the Letters Patents is not speci­fied; sed non allocatur: because there is sufficient certainty without it; besides the Date is upon Record.

3. Because the Plaintiff does not alledge that he was pos­sessed of them ut de bonis propriis: sed non allocatur after a Verdict: And the Declaration does mention that the Defen­dant knowing them to appertain to the Plaintiff converted them, which implies as much. And Judgment nisi, &c.

Young vers Woollaston and Pennington Vicounts de Londres.

(4) IN Debt for 1000 l. by them levied in the yeare 1639. for the King, and assigned over to Young; after the darrein continuance Woolaston dyed, which the Plaintiff suggested up­on the Roll, and prayed a distring' Jurator' against Pennington only, who at the day of the Nisi prius pleaded the death of Woolaston in Abatement; which Plea was received notwith­standing the surmise upon the Record; sed quaere de ceo, Vid. 4 H. 7. 7. The Plaintiff at the Nisi prius demurred to the Plea; and there was a Joinder in demurrer; and this was allowed by the Iudge of Nisi prius; and so he said, it had beén used. And that a Demurrer to a Challenge might be determined there; but other Demurrers were to be adjourn'd.

The next Term it was argued by Serjeant Hardres pro Quer̄.

I will not insist upon the general Learning of Abatements of Writs; but will stick to that which is here in point, viz. Abatements by the death of Parties.

1. The Law regards and tenders the preservation rather than the destruction of a thing; the affirmance of Writs ra­ther than their abatement. If in a Writ of Error two Ori­ginals are certified, the better of the two shall be taken, 5 Rep. 37. Bishop's Case. And so the constant practice is in the Court of Kings Bench, that if in a Writ of Error a Certiorari be awarded upon diminution alledged, and a Certificate be made in affirmance of the Iudgment, the Plaintiff in the Writ of Error shall not have another to make it reversible in the point already certified; but in affirmance of the Iudgment there may be another Certiorari, Avery and Kirton's Case, Mich. 1649. in B. R. Entr̄ Mich. 23 Car. Rot. 239. Vpon this ground in 11 Ass. 20. it is held that if by any matter a Writ may be made good, it shall not be abated; and therefore if two parts of a moiety of a Mill be demanded in a Writ of Mor­dancester, the Writ is good; and it shall be intended a third part of the Entirety, though not demanded acccording to the usual form. In 12 Ass. 28. Trespass quare fossatos suos fre­gerunt, which is improper and should have beén prostraverunt; yet the Writ was not abated for that: So here if by any reasonable construction or intendment the Writ may be made good, it shall not be abated.

The 2d Reason I go upon is, to avoid circuity of Action; for frustra fit per plura quod fieri potest per pauciora, 21 H. 7. 23, 24. John Pursoe's Case. If a Man make a Lease for years and covenant that the Lessee may cut down Trées; the Lessee may plead this in an Action of Waste, without being put to an Action of Covenant. So in Debt upon an Obli­gation the Defendant may plead that after the sealing of the Bond the Plaintiff granted to him that he should not be im­pleaded till such a time, and if he were that he might plead it in discharge; this is a good Plea in Bar.

So that it appears by these Cases that the Law will not work the dissolution of any thing, but in case of necessity; nor will countenance circuity of Actions, and perplexity of Suits, if it may be avoided.

3. To apply the reason of the Law to our Case of Abate­ment. The death of one Defendant will not abate a Writ, where there is no alteration made by his death, and where there are others left who are sufficient to support it. And therefore if a Writ of Mordancester be brought agains two Joyntenants, and one of them die, the Writ abates only against him; be­cause the whole Estate of the Land survives to the other; and there is no alteration made. But if the Defendants be Co-parceners, the Writ abates by the death of one, because there the Estates does not survive and there is an alteration of the Tenancy.

7 E. 3. 273. b. If a Quare Impedit be brought against an Husband and Wife, and the Wife dye and the Baron be Te­nant by the Curtesie, the Writ does not abate. In like man­ner if it be brought against two others, and one dye, 9 H. 5. 6. So if the Patron dye, 11 H. 6. 30. b. 57. a. Because in these Cases there are sufficient persons left to support the Writ and the Action, 11 Ass. 15. 27 Ass. 45.

7 E. 3. 245. a. If in a Praecipe against two persons one Te­nant make default, and the other take upon himself the entire Tenancy, and Issue be taken upon it, and afterwards he that made default dies, this does not abate the Writ, though the other Tenant has taken the entire Tenancy upon himself, be­cause the Demandant has not admitted it, but taken Issue up­on it.

And as the Law is so in real Actions, which are more pre­cise, and must have proper Tenants; so it is the same in per­sonal Actions, and upon the same reason.

47 E. 3. 7. a. In a Scire fac̄ to recover damages in an Assize against two, whereof one dies; this does not abate the Writ against the other.

12 Rep. 2. 25 E. 3. 81. b. In Audita Querela against two, who have taken out Execution upon a Statute-Merchant, and afterwards released; the death of one of them does not abate the Writ.

Mich. 1 & 2 Eliz. Dyer 175. Replevin against two; after Conusance made as Bailiffs, one of the Defendants dyeth; this does not abate the Writ.

And the reason of all these Cases is because by the death of one of the Defendants there is no alteration made as to the Plaintiff, and he cannot purchase a better Writ.

There is a diversity betwixt a Writ that was not well pur­chased at first, and a Writ that is right originally, though by the death of a Defendant, or other accident, it may become faulty; as if an Action be brought against several persons, whereof one is not in rerum natura, the Writ shall abate a­gainst them all; but the Writ in our Case was right when it was taken out.

A second diversity there is betwixt the Act of God or of the Law, and the Act of the Party: For if the Plaintiff, pending the Suit, will release to one of the Defendants, it will abate the Writ against them all; otherwise, in case of death.

And after Issue joined death cannot properly be pleaded by one as a Party, but as Amicus Curiae, 38 H. 6. 9. b. 18 E. 4. 2. b. 19. b. 14 H. 6. 9. a. So that it is in the Breast of the Court to make it abatable or not.

Obj. 13 E. 3. Br̄e 263. 31 E. 3. Br̄e 344. If an Account be brought against two, and one dye, it abates against all.

Answ. There the Writ charged them as Receivers and Bai­liffs, which they could not be, when one of them was dead, so that the Writ was falsified; which is not in our Case; for the Action here is grounded upon the Return, which remains true as aforesaid.

Object. 50 E. 3. 7. 40 E. 3. 26. If an Action of Debt be brought against two, and one dyes, the Writ abates against both.

Answ. The Action there was grounded upon a joint con­tract, and therefore by the death of one the Surmise of the Writ was altered: For one being dead, the Surmise ought to be that two contracted and one dyed, and there the Parties made the Contract; but in our Case the Law raised it, & fortior est dispositio legis quam hominis. Also here in our Case the Sur­mise of the Writ remains true, and cannot be alterd for the better against the survivor, nor laid otherwise; and therefore not like the Cases objected.

For Authorities he cited 18 E. 4. 1. per Cur̄, 22 R. 2. Br̄e 888. If Conspiracy be brought against two Men, the death of one shall not abate the Writ, and yet a Writ of Conspiracy does not lie against one Man; and the acquittal of all but one, is a discharge of all, Stamf. Pl. Cor. 173. b. Which is far stronger than our Case is.

Mich. 40, 41 Eliz. B. R. Harris's Case: There it was held clearly by the Court, that if an Action of Debt were brought against two Sheriffs upon an Escape of one in Execution, that the death of one does not abate the Writ; which is in Effect the same Case with ours.

And he prayed Iudgment for the Plaintiff.

Cough and Floyd.

AN English Bill was brought against an Executor at the (5) Suit of a Creditor to discover Assets; and it was de­murred to, because it was brought before any Suit com­menced at Law; by which means the Defendant is liable to be doubly vext: For perhaps if he were sued at Law he would confess the Debt, or pay it, rather than stand out Suit. Quod nota.

Alderman Langham against Baker and twenty two others, Parishioners of St. Hellens London.

(1) THE Plaintiff as Farmer of the Impropriate Rectory of the said Church, prefers his here Bill against the Defendants for not paying their Tithes, in London, according the Decree in 37 H. 8. To which the Defendants plead the said Decree, and that the Plaintiff has his remedy before the Mayor of London by the Act of Parliament, which settles the Decree; and de­mand Judgment whether or no this Court will take conusance of the Matter?

And it was held clearly that the Court has jurisdiction in this Cause; for that it appears by the very Decree it self, and the Act in 37 H. 8. and by Linwood de Decimis, That Tithes where payable in London before the said Act for Houses, but the Quota was doubtful, which is remedied by the said Act and Decree; and the Act has no negative words; it is not said before the Lord Mayor of London, and not elsewhere, Vide Scudamores Case, 5 Jac. cited Co. Mag. Chart. upon 2 Ed. 6. and Tithes were determinable here ab antiquo; as appears by 38 Ass. Selden de Decimis. 4 Ed. 4. and by Articul. Cleri cap. 4. In Case of the King and his Farmers; the Cause follows the Person and his Priviledge; and this Case is not to be re­sembled to Cases where Iustices of the Peace are impowred by Act of Parliament; and for that cause Iustices of Oyer and Terminer have nothing to do, nor Iustices of Gaol-deli­very; and so vice versa, 11 Rep. Doctor Fosters Case. For they have but a limited Iurisdiction. And the Kings Farmer has in respect of the Revenue the same personal Priviledge that the King has; and without question the King may sue here. And it was ruled that the Defendants respondeant ouster.

Baker against Lenthal, Ʋsher of the Chancery.

THE Plaintiff preferred his Bill here to be relieved against (2) a Bond put in Suit by the Defendant at Common Law, which in dead was in the Petty-bag by reason of his privi­ledge; to which the Defendant pleaded his priviledge as an Officer of the Court of Chancery; and the Court agreed, that when both Parties are priviledged Persons, his privi­ledge shall take place, who sues first in this Court; as in the Case Trin. 7 Jac. Gay contra Reynolds, in a Suit commenced in the Common Pleas by an Attorny of that Court against the Marshal of the Kings Bench; so here the Suit in Equity to be relieved against the Penalty of the Bond is first attached here; and it is not the same Suit with that at Common Law, but distinct from it: It was also said, that if both are pri­viledged Persons, and the attendance of the one is more re­quisite than of the other (as in this Case it is) the Plaintiff here being an Accountant in this Court, and upon his Ac­count, as is alledged by the Bill (which cannot be done by Deputy, or by Attorny) that in such case his priviledge shall be allowed, who has most cause of priviledge. Et Adjor­natur.

At another day in the same Term the Plea was over-ruled, and an Injunction granted till Answer.

Chichly against ....... and others Commoners within the Mannor of, &c.

THE Plaintiff, as Lord of the Mannor, by English-Bill (3) prayed a Decree against the Defendants, to have them concluded by a former Decree made in this Court concerning Improvement and Apportionment, by which Decree all the Tenants were bound upon the Answer of ten only, and the consent of the rest did not appear; and the Defendants in this Suit answered, that they and all those whose E­states they have in such Mesuages, Lands and Tenements have time out of mind had Common of Pasture, Turbary, and liberty to dig Gravel in the said Common, &c. which the Plaintiff by Replication denied, and upon Examinations, and hearing the Cause, the Court was of Opinion that the former Decree, to which the Tenants were not Parties, does not [Page 118] conclude them. And that it ought to be tried at Law whe­ther they have such a Common as they claim to have, or not; and that the Common, as alledged in the Answer, is void in Law, because Common sans nomber cannot be appendant to any thing but Lands; and that it is called Common sans nom­ber, because it is only for Beasts levant and couchant; and it is incertain how many those are, there being more in some years than in other; but it is a Common certain in its na­ture; for id certum est quod certum reddi potest. And that they ought to go to Law to prove the prescription, that they have laid in their Answers, which seemed hard upon the Defen­dants, for want of Form in their Answer; especially since the Title to the Common is not the Scope of the Bill, but the Improvement, by which it is admitted that they have Right of Common.

Henry Olive Plaintiff, George Gwin Defendant.

(4) EJectment for Lands in Brecknock-shire, in Wales; upon not-guilty pleaded, and a Tryal there, the Defendants gave in Evidence a Recovery in a Writ of quod ei deforciat, which is their Writ of Right, at the Great Sessions there; and Issue being tendered thereupon, the Defendants produced an Ex­emplification of the Record, under the Seal of the Great Ses­sions, but not the Record it self; and the Plaintiff demurred to the Evidence; and the question now was, Whether the Exemplification maintained the Issue for the Defendants, or not?

Trever pro quer'. That it is no Evidence. He-said that Lieger-Books, and such Paper Books cannot be exemplified, but when offered in Evidence, must be themselves produced: But yet that Exemplifications of Popes Bulls, under the Bi­shops Seal, had beén admitted in Evidence in Sir Tho. Reads Case, Hill. 22 Jac. B. R. But the Common Law took no notice of Exemplifications, till the Statutes of 3 and 4 Ed. 6. and 23 Eliz. cap. 3. which Statutes concern Letters Patents only, as was resolved in Pages Case, 5 Rep. and in 5 R. 2. Parl. Roll. num. 85. there is an Answer in Parliament, That the Law admits of no Exemplification of Process or Pleadings.

Obj. By the Act of 34 H. 8. concerning Wales, and the Go­vernment thereof, it is enacted, That Exemplifications of Re­cords shall be allowed.

Resp. There are but two Repertories of Records in Wales, the one in North-Wales, the other in South-Wales; and this Statute extends to the Welsh-Men only; as appears Plow. Com.

Obj. 27 Eliz. cap. 9.

Resp. That Act extends only to Fines and Common Reco­veries. And the Court here cannot take notice of the Exem­plification of a Record there, where the Iurisdiction is limit­ted; as appears Cro. Car. 34. upon a Record removed hither. And Hill. 7. Car. B. R. in Prices Case, the Iudge cited Authority, That if the Record of a Iudgment there were removed hither, an Action of Debt would not lie upon it; nor was any such Evidence ever offered since, 34 H. 8. And a Law disus'd is as it were become nul. Vide Littleton upon the Statute of Mert. concerning disparagement. Hob. Rep. 78. St. Johns Case. 6 Rep. Gateways Case, and 37 Ed. 3. Rot. Parl. num. 10. The Barons and Serjeants at Law were yearly to make en­quiry what Laws were used, and what not: also the Exem­plification is only of the Enrolment of the Record, and not of the Record it self. 2 and 3 Eliz. Dyer 187, 275. Bro. Record 49. Co. Inst. 225. and Dyer 369. Scire Fac' does not lie up­on the Tenor of a Record. And by 15 Ass. 16. a Record in Wales cannot be vouched here; and in a Case tried at Lent Assizes 1656. such an Exemplification was not admitted for Evidence upon Issue of nul tiel Record in Ejectment, and so concluded pro quer'. But it was said on the other side, That here the Issue is not upon nul tiel Record, but the Ge­neral Issue; and the Exemplification comes in upon Evidence only to the Iury, and may be sufficient ground for them to find for the Defendant. Et Adjornatur.

At another day Atkins argued {pro} Defendente; He cited Newys and Scholastica's Case, Plow. Com. 411. where the Chirographe of a Fine was given in Evidence to the Iury, upon a General Issue in Assize, Dyer 239. b. The Iury find a private Act of Parliament, Dyer 167. Constat of a Patent. 5 Rep. Pages Case. Bro. monstrance de faits 68. The difference is betwixt a Plea of a Record, and Evidence upon a General Issue, in Whiteheads Case, temp. of Wilde Chief Baron. The Court held an Exemplification of a Recovery, under the Seal of the Mayor of Bristow, to be good Evidence to a Iury; and the Statute of 27 Eliz. seéms direct in the point. Vid. 39 H. 6. 4. Dyer 233. Bro. Records 65.

Vpon a Debate in Michaelmas Term after, it was agreed that a sworn Copy of a Record in Wales, might be given in Evidence; but its said that an Exemplification could not, be­cause [Page 120] the Court here ought not to take notice of any such inferior Seal; but if it were exemplified under the Great Seal, then it would be Evidence and Proof, although the Re­cord it self were lost; but whilst the Record it self is in be­ing, no Exemplification under any other Seal shall be ad­mitted. But it was said on the other side, that it was held by the Judges at Serjeants-Inn upon a Demurrer to evidence in Whiteheads Case, That an Exemplification under the Seal of the Mayor of Bristow, of a Recovery there, should be given in Evidence, though the Record it self could not be found. And so it was at the next Assizes; and per Cur. Trials in the next adjoining County to Wales are not by any Statute Law, but by Prescription; and they are tantamount to Trials within Wales, where it is admitted that such Evidence is good, being within the same Iurisdiction, & Adjornatur.

At another day Baldwin argued for the Plaintiff, That it is no Evidence, because the effect of the Record only is expressed, whereas the Record it self ought to be set forth in haec verba, 3 H. 6. 4. Mich. 21. Car. B. R. Rot. 440. Wright and Sit Paul Pinder, in Evidence to a Jury, to prove a diem clausit extre­mum out of the Exchequer, the Record it self could not be found, but a Warrant for it, and an Entry of it in the Docket-Book was proved, and upon a Demurrer it was ad­judged to be no Evidence, because a Record cannot be proved but by it self. Vide Rast. Entries 318. 1 and 2 Ph. and Mar. Rot. 13. B. R. John versus Langley, The recital of a Lease without shewing it, ruled to be no Evidence upon a Demur­rer. Vide Bro. Records 74. N. B. 144. 28 Ass. 14. 9 H. 7. 9. Dyer 227. Plow. Com. 232. Dyer 236. No Exemplification is Evidence but in the same Court to prove a Record up­on nul tiel Record pleaded, but it must be under the Great Seal. Vide Bro. Records 65. Co. 1 Inst. 128. 12 Ed. 4. 16. and the Statute of 27 Eliz. cap. 3. extends to Common Reco­veries only. It must be given in Evidence by the late Act, in like manner as if it were to be pleaded, and that must be under the Great Seal; and so concluded pro Quer'.

Harris versus Colliton.

(5) THE Defendant had a Iudgment at Law against the Plaintiff: After a Verdict for Rent of a House, and to be relieved against that Iudgment, the Plaintiff preferred his Bill here, alledging that he could make no profit of the House demised, by reason that it was demolished in the late Wars; [Page 121] to which Bill the Defendant demurred, and sets forth the Sta­tute of 4 H. 4. That after a Iudgment the Party shall not be impeached till it be reversed by Error or Attaint. And now Atkins argued for the Defendant, That the said Statute was not introductive of a new Law, but declarative of the Com­mon Law; and that it extended to the Court of Chancery, by reason of the words devant le Roy mesme, as this Court likewise is, and so is called; and collateral Equity is within the Law, as was resolved in Mich. 39 and 40 Eliz. in Throg­morton and Sir Moyle Finches Case, Co. Jurisdiction of Courts: And in Doct. and Stud. 30. it is said, That that Statute is a reasonable and equitable Law, being made for repose and quiet; and in 22 Ed. 4. it is said, That after Judgment no Injunction lies out of a Court of Equity; and in 22 Car. in Langham and [...] Case, In the House of Lords, in Par­liament, it was resolved, That after a Iudgment obtained at Law, no remedy lies in Equity; but the Court not being full it was adjourned.

Afterwards in Michaelmas Term Finch argued for the De­fendant. 1. He considered how the Common Law stood before the Statute of 4 H. 4. He said there was an Equity, as ap­pears by Doctor and Student, which was part of the Common Law, though regular Proceedings in Equity were not known till of late times. Vide Articul. sup. Chartas, cap. 5. Co. Mag. Chart. 551. There many Acts of Parliament are cited, that after a Iudgment there was no remedy for the Defen­dant, but in Parliament, otherwise than by a Writ of Error, or a Writ of Attaint; and that the Common Law was thus, appears by the Statute of Gloc. cap. 4. and Westm. 2. cap. 4. Where after Iudgment by default, though by Collusion, a Lessee for years, or a Feme-Covert, could not falsifie; and in 2 R. 3. 21. and in Bracton the Reason is given, viz. Be­cause Parliaments were to sit once or twice a year to redress such Grievances. And it appears by 13 Ed. 3. prohibit. That after a Iudgment obtained at Law, a Prohibition lay to the Court of Chancery.

Then he considered the Statute of 4 H. 4. 1st. in words, 2d. in meaning. The words both in the Preamble, and in the Body of the Act, are full, and import a positive restraint; they are, that the Party shall rest in peace; and a Fine is called finis, quia finem litibus imponit. Then for the meaning, He said by drawing the Matter in question over again in Equi­ty, the Law is subverted, and the Iudges will extend the words of an A [...]t to Cases of equal Mischief, Vide 10 Rep. Bewfages Case, upon 23 H. 6.

Obj. The Statute extends only to a reversal, which cannot be by a Suit here.

Resp. The Fruit of the Iudgment is lost by a Suit in Equi­ty, and that is a Mischief equal to, and is in effect a Rever­sal of the Iudgment; and such a collateral Act the Civilians call appellatio Curatoria; and it is said in the Reg. 62, 63, 64. to be in enervationem Judicii; and in 18 Ed. 3. Act de Par­liament, num. 32. it is called so.

Obj. At Law one Action lies against another, and that does in effect take away the Effect of the former.

Resp. The Statute did not intend to alter what was Com­mon Law before; but there was no relief in Equity before; and therefore the last words of the Act do not extend to it.

Obj. The constant Practice in Chancery is to the con­trary.

Resp. There was no such Practice for 100 years after the Statute of 4 H. 4. was made, viz. in H. 7. time, and before in 3 H. 5. nu. 46. 15 H. 6. cap. 4. The Parties flew into Parliament for relief in an Assize after Iudgment; and in 3 H. 6. Rot. Parl. num. 22. The Bishop of Ely having reco­vered 400 Acres of Land in Wisbich, the Parties betook themselves to the Parliament; so in 3 H. 5. num. 17. vide Co. 3 Inst. 123.

Obj. In 9 Ed. 4. an Injunction was granted after Iudg­ment.

Resp. But in 22 Ed. 4. it was denied; and it does not ap­pear in 9 Ed. 4. but that the Bill was exhibited before Iudg­ment.

Obj. There are many Presidents for it.

Resp. Judicandum est legibus non exemplis. There are a thousand Presidents for a Capias upon a Recognizance in Chancery; but a thousand more cannot make it to be Law; and many pass sub silentio, or upon the sole Opinion of the Chancellor, who is willing to enlarge his own Iurisdiction.

Then he considered the Statute of 33 H. 8. and argued that that Statute did not enlarge the Statute of 4 H. 4. or let in any Authority, in Equity, after a Iudgment at Law; He said there was no Book of Orders in the Exchequer before 1 Mar. An Audita querela is for Common Law Equity; but no remedy lies by an Audita querela upon Matter that might have been pleaded before Iudgment, as the Matter contained in this Bill might.

Then he considered of some Authorities; and 1st. Those that made against him, 7 H. 7. 11. Tenant by Statute Merchant relieved in Equity upon the Statute of Gloc. cap. 4.

Resp. That was upon a Recovery in a Court of Ancient demesne, which not being of Record, is not within the Statute of 4 H. 4.

Object. 9 E. 4. Relief in Equity after Iudgment.

Resp. That is contrary to Law upon the Reason there given.

Object. Doct. & Stud. 31.

Resp. That makes for me rather than against me.

Object. 9 Rep. 99. Stamf. Praerog. 65. That the Chancellor has a double power, legal and equitable, ordinary and extra­ordinary.

Resp. That is no proper distinction to be urged in a Court of Law.

Object. Dyer 21, 22. Injunction there after a Iudgment at Law.

Resp. That does not appear by the Book.

Object. In 12 Jac. the Iudges were of opinion in Case of Praemunire, that the Chancery could relieve after Iudgment.

Resp. Vid. 3 Inst.

The Authorities he cited for him, were 13 E. 3. Prohibition 11. Crompton's Jurisdict. de Courts 57. Throgmorton and Sir Moyl Finch's Case, Mich. 39 & 40 Eliz. Co. Jurisdict. de Courts tit. Chancery; and there was the same ground of Equity that is pretended to be here, 3 Inst. 123. 4 Presidenis there. The 20th Article against Cardinal Wolsey, Co. Mag. Chart. 551. Pasch. 13 Jac. in Hab. Corp. for Glanvil and Allen, 17 Car. Tomson and Hollingworth's Case in B. R. In Debt, where such a matter as the Equity of this Bill was pleaded and over­ruled, 23 Car. Lumbrey and Langham's Case in Parliament ac­cord. and concluded for the Defendant.

Atkins for the Defendant cited Moorhead and Douglass's Case in this Court, 1655. Adjudged upon Argument in point.

Stevens pro Quer̄. He said the Court here does not in­termeddle with the Iudgment; that rests in peace; but with matter dehors; and that cannot be Law that excludes E­quity. He argued that the Statute of Praemunire could not possibly extend to the Chancery; nor the Statute of 4 H. 4. for that the Iurisdiction of the Court of Chancery in Equity was not then in being, and therefore could not be restrained by that Law.

In answer to the Reasons alledged by the Lord Coke to the contrary, he said; 1. That nothing tryable at Law was touched here. 2. That the Parties are at peace as to Pleading, but not in Equity. 3. That no matter in or upon Record is in question, but matter dehors: And con­cluded pro Quer̄.

At another day it was argued by Shaftoe for the Defen­dant: He said, that at the Common Law a Prohibition would lie, 13 E. 3. Prohibition 11. He urged the Statute of 27 E. 3. of Praemunire, and that the words (in auter Court) extend to restrain the Court of Chancery. 1. Because all other ways of avoiding Iudgments are by the Common Law, and there­fore not entended to be precluded; as, by a Writ of Disceit for want of Summons, 35 H. 6. 44. By Audita Querela, which is an equitable Writ. By Certificate in Assise N. B. 183. By an Action of an higher nature, &c. Vid. Plowd. Com. 393. 18 E. 3. 15. Dyer 315. 2. The Parties will never be at peace, which the Common-Law aims at, and the words of the Statute plainly design, if Iudgments at Law shall be questioned afterwards in Chancery, Vid. Co. Mag. Chart. 360. Doct. & Stud. 31. & Co. Lit. 168. Judicium pro veritate acci­pitur, Vid. 9 E. 4. 39. Attaint lies not at the Suit of an In­fant upon the same Reason. His 3d Reason he grounded upon Magn. Chart. Nulli negabimus, nulli differemus Justitiam, &c. and referred to the Lord Cook's Commentary upon those words. 4. The Right betwixt the Parties is bound by the Iudgment, Vid. 27 H. 8. 15. 37 H. 6. 14. That the Court of Chancery, with respect to Procéedings in Equity, is no Court of Record. 5. To question the matter in Equity is to draw it ad aliud examen; because Procéedings there are upon written Depositions and not viva voce according to the Course of Tryals at Common Law, Vid. Hob. Rep. Dar­cies Case, 324. and Manwaring's Case, 203. And by this means the Courts of Law would be made Handmaids to the Chancery.

Object. The Penalty of the Bond is recoverable at Law.

Resp. The Law allows of a Mishief rather than an In­convenience; and the Recovery of the Penalty may be pre­vented by exhibiting a Bill before Iudgment, Lit. p. 231. Doct. & Stud. 31.

Object. The words (in auter Court) in 27 E. 3. do not ex­tend to the Chancery.

Resp. In the Statute of 16 R. 2. c. 6. they are so expounded, Vid. Parker in vita Stratford Archbishop of Canterbury, and by 5 E. 4. 6. they extend to Ecclesiastical Courts in England.

Object. 7 H. 7. 12. per Keble, that Releif lies in such Case.

Resp. That is but the single opinion of a Serjeant.

For Authorities he cited, 10 H. 6. 14. that the Custom of London does not extend to a Iudgment. And 22 E. 4. 37. Doct. & Stud. cap. 18. Co. of Praemunire, 3 Inst. Norrice's Case, Dyer 201. That after Iudgment upon inspection of an [Page 125] Infant no farther Examination is allowed in Chancery, Dr. Smith's Case, Mich. 13 Jac. B. R. 11 Rep. Magdalen Coll. Case, Apsley's Case, Pasch. 13 Jac. & Glanvil's Case, Bulstrode 2 Rep. 302. Co. Jurisdict. de Courts, 83. Keilway 42. That the Chan­cery is but of late standing with respect to its extraordinary Iurisdiction, Hob. Rep. 203. Candish's Case, Dyer 20.

Montague pro Quer̄. The Statut of 27 E. 3. of Praemunire is not pleaded here, nor does it extend to the Chancery; the word alibi by 5 E. 4. 6. extends to the Court of Rome and Ecclesiastical Courts, not to the Chancery, which is a Limb of the Common Law; and the Chancery was well known at that time, Vid. Plo. Com. 321. and Co. Jurisdict. of Courts, tit. Exchequer. The words in peace relate only to the Courts in which the Iudgments are given; and cannot be extended to Cases which the Common Law cannot examin; and Doct. & Stud. 31. does not prohibite the Examination of a matter in Equity. Nor can a Court of Equity annihilate or call in question a Iudgment, but only mitigate the Rigor of it in some Cases, which answers 13 Ed. 3. Prohibition. 30 Ed. 3. 14.

Object. Co. Jurisdict. tit. Chancery.

Resp. The point there was whether the same matter could be examined over again, which had received a determination at Law; and that is not our Case.

Object. Co. tit. Praemunire; That the Chancery is within the Statute of 27 E. 3. of Praemunire.

Resp. The question is there upon the very same matter that had been tryed at Law, and Fraud and Surrepritiousness, which the Court that gave Iudgment, could well enquire in­to and determin. And Langham's Case concerned excessive damages only; and the Defendant petitioned the Parliament which 4 H. 4. prohibites; and yet in that Cause there was a new Tryal by an Order in Chancery, Vid. 7 H. 7. 11. Dyer 201, 301. Et adjornatur.