The reports of Sir Peyton Ventris Kt., late one of the justices of the Common-pleas in two parts : the first part containing select cases adjudged in the Kings-Bench, in the reign of K. Charles II, with three learned arguments, one in the Kings-Bench, by Sir Francis North, when Attorney General, and two in the Exchequer by Sir Matthew Hale, when Lord Chief Baron : with two tables, one of the cases, and the other of the principal matters : the second part containing choice cases adjudged in the Common-pleas, in the reigns of K. Charles II and K. James II and in the three first years of the reign of His now Majesty K. William and the late Q. Mary, while he was a judge in the said court, with the pleadings to the same : also several cases and pleadings thereupon in the Exchequer-Chamber upon writs of error from the Kings-Bench : together with many remarkable and curious cases in the Court of Chancery : whereto are added three exact tables, one of the cases, the other of the principal matters, and the third of the pleadings : with the allowance and approbation of the Lord Keeper an all the Judges.

Termino Sancti Michaelis, Anno 21 Car. II. In Banco Regis.

William Bate's Case.

A Prohibition was prayed to the Commissary of the Arch∣deacon of Richmond, to stay a Suit against Bates a School∣master; who, as it was alledged, taught School without the Bishops Licence; and it was granted, because they endea∣voured to turn him out; whereas they could only Censure him, he coming in by the Presentation of the Founder.

In a Feoffment of Tythes and Lands, where there is no Livery; if they do adjudge the Tythes to pass, notwithstanding there is no Livery, a Prohibition will lye.

In Debt upon a Lease at Will, there must be an Averment that the Lessee occupied the Lands. But it is otherwise upon a Lease for Years.

Anonymus.

THe Court was moved to grant an Attachment against a Ju∣stice of the Peace, who upon Complaint refused to come and view a Force: But the Court denied it, and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case.

It was said by the Court, That in an Execution upon a Statute Merchant there is no need of a Liberate, as there is upon a Statute Staple: And in the Case of a Statute Staple, the Conusee can bring

no Ejectment before the Liberate; neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession, as he is to do upon an Habere facias possessionem.

Dier versus East.

AN Action was brought against the Defendant upon an Indeb' pro diversis Mercimoniis venditis & deliberatis to the Wife, to the use of her Husband, it being for her wearing Apparel. And after Verdict for the Plaintiff, it was moved in Arrest of Judgment, that this Declaration being laid, That the Sale was to the Wife, tho' it was to the use of the Husband, it was not good; as if it had been sold to the Servant of the Plaintiff.

Nevertheless the Court were of Opinion, That it being for her Apparel, and that suitable to her Degree, the Husband was to pay for it: as had been Resolved in this King's time, in Scot and Manby's Case in the Exchequer Chamber, and that the Declaration was well enough.

Anonymus.

THe Defendant in an Action of Debt upon a Bond, sued out an Injunction in Chancery; where after the Case had de∣pended for two years, the Court was moved, that the Plaintiff might accept of his Principal, Interest and Charges.

The Court said, If the Defendant comes before Plea pleaded, and makes such a proffer, they are ex debito Justitiae to allow it: But now he having delayed the Plaintiff in Chancery two years, it was in their discretion. And the other three, against the Opinion of Keeling, thought fit to deny it.

Clarke versus Phillips & al'.

UPon the Trial in an Ejectment, the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him, for Life upon divers other Estates, and that there was a Fine levied, and Proclamations passed; but he, within the Five years after his Title accrued, sent two persons to deliver Declarations upon the Land, as the course is upon Ejectments brought.

The Court Resolved, that this was no Entry or Claim to avoid the Fine, he having given no express Authority to that purpose; and the Confession of Lease, Entry and Ouster, by the Defendant, should not prejudice him in this respect. In this Case Keeling and Twisden were of different Opinions in this Point, (Viz.) If he that hath power of Revocation over Lands, &c. makes a Lease for Life, whether it suspends the Power only, as a Lease for years would do, or extinguisheth it as a Feoffment?

The King versus Monk & al'.

IN an Information for a Riot, it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace, upon complaint of Riots, to View and Record them. And after Ver∣dict it was moved in Arrest of Judgment, that this Information was not good, it being grounded upon this Statute, which only mentions Riots, and appoints them to be punished in the manner there expressed.

But the Chief Justice Keeling was of Opinion, that it being a Crime at the Common Law, and mentioned in this Statute, the Information was well concluded: But the other Justices inclined to the contrary.

Anonymus.

DEbt upon a Bond Conditioned to perform Covenants in an Indenture. The Defendant pleaded, That there were no Covenants contained in the Indenture on his part to be performed. The Plaintiff demands Oyer of the Indenture, which is Entred verbatim, and then Demurs; which he could not well do before the Entry of it, whereby it becomes part of the Bar; so the cause of the Demurrer appears.

Then it was alledged by Saunders, (whose Hand was to the Plea) That the Plaintiff could not have Judgment, because he had set forth no Breach. But the Court was much offended with him: For they held the Plea in Bar meerly for delay, and advised against the Statute of Westm. 1.

Robinson versus Pulford.

IN an Assumpsit the Plaintiff declared, That the Defendant in Consideration that the Plaintiff would deliver such silver Threads, and other Wares into the Shop of J. S. that he should require, that he would see him paid.

Now, after an Assumpsit pleaded, and Verdict for the Plaintiff, it was moved in Arrest of Judgment, That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods: For the promise to see him paid, was no more than if he had said, If J.S. doth not pay you, I will; in which Case such Averment must have been.

But the Court Resolved, that a Promise to pay, and to see him paid, was all one, and the Averment unnecessary.

Rushden versus Collins.

IN an Assumpsit the Plaintiff declared the Consideration to be, pro opere preantea facto. After Verdict for the Plaintiff, it was moved in Arrest of Judgment, that opere was too general, and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff: But they gave Judgment; for they said labore or servitio had been adjudged sufficient.

Lee versus Edwards.

IN an Assumpsit the Plaintiff declared, That in Consideration that he would employ his skill and pains, and provide Medicaments for, and Cure a certain person of a Pthysick, that he would pay what he deserved; and lays another Promise at the same time in Consi∣deration as aforesaid, and alledges the Promise somewhat varying from the first; and concludes with an Averment, That he had bestowed his pains, and cured accordingly.

Vpon Non Assumpsit pleaded, and a Verdict for the Plaintiff, the Court was moved to stay Judgment, because the Plaintiff had made no Averment of the Cure upon the first Promise, and entire Damages were given; so it was ill in all. But the Court were of Opinion, That in regard he had Averred it upon the second Pro∣mise; so as it appeared upon Record that the Cure was done, it aided the omission of it in the first, especially being after a Verdict.

Nota, There is an Inquisition upon every ones death that dies in the Kings-Bench, by the Master of the Crown-Office and Coroner.

Pomfret versus Rycroft.

IN a Writ of Covenant the Plaintiff declared, That the Defendant demised to him a House, with the use of a Pump, and that he suffered it to be so out of Repair, that it became Useless. To this Declaration the Defendant demurs; and Counsel being heard on either side divers times, the Court delivered their Opinions severally.

Keeling, Rainsford, and Moreton held, that the Action did lye, the Use of the Pump being part of the things demised, which Words make a Covenant, as in 4 Co. Noke's Case, and in 5 Co. Spencer's Case; If a man let an House together with Estovers, to be taken in the Wood of the Lessor, and afterwards the Wood is stubbed up, there Covenant lies for the Lessee. And Rainsford put this Case: If a mans Lets the Middle Rooms of his House to one, and the Vpper to another, and lets the Roof of the House

decay, he conceived Covenant would lie for the Lessee of the mid∣dle Rooms. And if a Parson makes a Lease, and then Resigns, he is liable to Covenant, as in 12 H. 4. And the Lessee would be at a mischief, for he should be a Trespasser to Enter and Repair; and if the Lessor ousts the Lessee of any of the things demised, 'tis clear the Covenant lies; and this is as much an ouster as can be in this case, where the Lessor is possessed himself. And so Iudg∣ment was given for the Plaintiff, against the Opinion of Twis∣den, who held strongly to the contrary; for he said he might have an Action upon the Case, and so remedy for his Damage. Also he held clearly, That he might Enter and Repair, as if one Licence another to lay Pipes in his Ground to convey Water, he may justifie an Entry to Repair the Pipes. And he cited a Case adjudged in 9 Jac. where one by Licence erected a Cock of Hay in anothers Ground: And it was held, That the Owner of the Soil might put in his Beasts into that Ground; but he that had the Licence, might by vertue of that Licence also fence in his Hay. Quando aliquid conceditur, conceditur & id sine quo res ipsa uti non potest; and he said that he never met with a Case where Covenant would lie but upon an actual ouster, either by a Stranger that hath eigne Title, or the Lessor himself: And this was a non feasans, and in that he differenced it from the Case of Estovers, being an actual Tort to stub the Wood up; and in Co∣venant upon an ouster of a Term, if it be not incurred, Iudg∣ment shall be to recover the Term it self, as F. N. B. 145. which cannot be in this Case, for the Sheriff cannot put him into posses∣sion of the use of the Pump; neither is it fit that he should recover Damages for all the Term, for it may be the Pump will be pre∣sently repaired. And he conceived, that if the Lessor Cuts down Trées growing upon the Land Demised, no Covenant lies, yet the Trees are Demised with the rest. Ante.

Anonymus.

A Draws a Bill upon B. to the use of C. and Vpon Non-pay∣ment C. Protests the Bill; he cannot Sue A. unless he gives him notice that the Bill is Protested; for A. may have the Effects of B. in his Hands, by which he may satisfie him∣self.

Note, It was said, if an Action to recover Lands of which a Fine was Levied, were brought and discontinued by the Deman∣dant, this would not amount to a Claim.

Glyn versus Smith.

A Scire facias upon a Record in the Kings Bench, where the A∣ction is brought by Original, must alledge a place where the Court was holden; because 'tis Ambulatory, and the Writs returnable there are coram nobis ubicunque tunc fuerimus in Angliâ. But it is otherwise upon Records in the Common Pleas, for that is confined to a certain place by Magna Charta.

Anonymus.

IT was moved to quash a Return of a Rescous, because it was Mandavi Ballivis, who took him virtute Warr' praed' And it was said, Mandavi did not imply that it was in Writing. But the Exception was disallowed by the Court.

Anonymus.

IF the Party that brings an Audita Querela be out of Prison, the Court will Bail him, though grounded upon a surmise of a matter of Fact, as payment, &c. But if he be in Prison, not, un∣less there be a Specialty.

Parries Case.

DIvers Deeds and Evidences were shewn to Counsel for his Opinion of the Title to certain Lands which were to be sold.

He delivers them to one Parry a Scrivener, by the consent of the Parties. Parry finding a Deed to concern the interest of a third person, gives it to him, and upon complaint to the Court, they commanded him to produce the Deed, that it might be delivered back again to the Parties, they conceiving it an abuse in his pra∣ctice, which was under the Regulation of this Court.

Anonymus.

IN Replevin, in the Court at Canterbury, the Defendant avow∣ed for Rent.

Afterward this was removed by the Plaintiff into the Kings-Bench, and the Defendant prayed a Procedendo; because Canter∣bury was a County of it self, and no Assizes there, and so the Cause could not be tried: But the Court denied it, saying, it was their own fault that they had not the Assizes there, and every Subject had the liberty of removing his Suit into a Superiour Court. Twisden said, He had formerly known it to be denied in an Ejectment.

Girlington versus Pitfield.

IN an Action upon the Case, for malitiously prosecuting of an Indictment of Perjury against him, of which he was acquit∣ted; upon Not guilty pleaded, it appeared upon the Evidence, that the Defendant was a Justice of the Peace, and procured some as Witnesses to appear against him, and his own name was endorsed upon the Indictment to give Evidence.

The Court agreed that this did not make him a Prosecutor; for if a Iustice of the Peace knows any person that can give Evidence against one that is indicted, he ought to cause him to do it. But it was proved on the Defendant's side, That this Indictment was drawn up by an Order of the Sessions. Wherefore Keeling Chief Justice said, That the Plaintiff deserved to be bound to his Good Behaviour for bringing of this Action.

Horne versus Ivie.

IN Trespass for taking of a Ship and Sails, the Defendant justified by a command from the Governours and Society of the Trade into the Canaries, who were Incorporated by that name, and had the sole Trade granted to them, with a Forfeiture of all such Goods as should be imported hither from thence, by any person not of their Company; and that the Ship of the Plain∣tiff brought Goods from thence. To this the Plaintiff Demur∣red.

His Counsel did not much insist upon the validity of the Patent, because it was a Monopoly; though it was said to be also against divers Statutes, to Prohibit Merchants frèe trading to forein parts, as 9 E. 3. cap. 1. 25 Ed. 3. cap. 2. 11 R. 2. cap. 7 and that there could grow no Forfeiture of Goods by Patent, at least not before Conviction. Neither were the words of the Patent very full to this purpose, for they were only, That they should forfeit such Ships and Goods, and be imprisoned as by Law could be inflicted upon the Contemners of the Kings Authority, 8 Co. 125. Noy 183. And the Court said the question was, Whether the King could Prohibit the Importation of Foreign Goods; for if he might, the Importation of them would cause them to be forfeited; And the Chief Justice said, The Ship also in which they: were shipped: But no Forfeiture of English Goods could grow by Letters Patents. And admitting all this for the Defendant, yet it was said the Plea was naught. First, Because he justified by a Command from a Corporation, and did not alledge it to be by Deed: And it was agreed, that a Corporation might employ one in ordinary Services without Deed, as to be Butler, 18 Ed. 4. 8. Br. Corp. 59.

or the like: But one could not appear in an Assize as a Bailiff to a Corporation without Deed, Pl. Com. 797. 12 H. 7. 27. Neither can they Licence one to take their Trees without Deed, nor send one to make a Claim to Lands, 9 Ed. 4. 39. They cannot make them∣selves Disseisours by their assent without Deed, or Command one to Enter for a Condition broken, 7 H. 7. 9. Rolls Tit. Corp. 514. Again it was said, The Plea was double, for that the Patent Pro∣hibits the Trading thither, and also Importing from thence; and 'tis laid that he loaded Wines there and brought them hither, so an offence respecting both Parts, and one would have served. But of these matters the Court would be advised.

Burwells Case.

UPon complaint to two Justices about a Bastard Child; they by the 18 Eliz. order one Reynolds to keep the Child: Vpon this Reynolds appeared at Sessions; where they vacated the Order, and referred it back again to the Justices, who do no∣thing.

The next Sessions after Burwell is judged the reputed Father, and ordered to pay so much a Week to the Parish, until the Child was 12 year old. This was removed into the Kings Bench by Cer∣tiorari.

And they resolved, That the referring back again to the Ju∣stices, by the Justices at the Sessions, was not warranted; and that the last Order was insufficient, because it was that he should pay the Parish due time until the Child was 12 year old, whereas the Father might take it away when he pleased; but it ought to have béen, that he should allow so long as it should be chargeable to the Parish; wherefore they bound the Parties to appear at the next Sessions by Recognizance.

Anonymus.

A Man hath a Messuage and a Way to it through anothers Freehoold, and 'tis stopped, then the House is aliened, the Alienee can bring no Action for this Nusance before request.

If a Man lets a House reserving a Way thorough it to a Back∣house, he cannot come thorough the House without request, and that too, at seasonable times.

Anonymus.

IF the Husband and Wife be Arrested in an Action that re∣quires Special Bail, and the Husband puts in Bail for himself, he must put in Bail for his Wife also; but if he lyes in Prison, the Wife cannot be let out upon Common Bail. But it is other∣wise, if the Husband absconds himself and cannot be Arre∣sted.

Anonymus.

IF a Man brings Debt for Rent, and upon his own shewing he demands more than is due, and upon non debet pleaded, the Jury find for him, he may remit the overplus, and have Judg∣ment for the residue.

Note, One was Committed for sending of a Note to a Juryman, (after a privy Verdict was given,) to know what Verdict they gave.

Parris's Case.

AN Information was brought against him, for that he frau∣dulenter & deceptivè procured one Ann Wigmore to give a Warrant of Attorney to confess a Judgment.

To this he pleaded Not guilty, and upon the Tryal it was de∣bated, whether she might be admitted to give Evidence against the Defendant; for if he were Convicted, the Court said they should set aside the Judgment. Nevertheless she was sworn, by the Opinion of 3 Judges, against Twisden, This Suit being for the King. Vpon his Tryal he was found Guilty, and fined 100 Marks, and ordered to come with a Paper on his Hat expressing the offence.

Note, No Writ of Error to reverse a Judgment given in an Action, qui tam, &c. lyes into the Exchequer-Chamber, because the King is Party; so also upon the Statute de Scandalis Mag∣nactum, 1 Cro. Lord Says Case.

Perill versus Shaw.

A Scire facias was brought against the Bail, who pleade that before the Return a Capias was issued out against the Prin∣cipal; and that he was taken at D. and detained in Prison quo∣usque postea he paid the Money; The Plaintiff pleads non sol∣vit. Then the Defendant Demurrs.

And it was adjudged for the Plaintiff; for the Defendants Plea was vitious, because there is no place alledged where the Money was paid; and it is not necessary to be intended to be paid where he was Imprisoned: And though the Plaintiff did not De∣murr, but replied; yet when there is a Demurrer, the first fault is fatal.

Sir John Kerle versus Osgood.

AN Action was brought for these words, spoken of him be∣ing Justice of the Peace, He is a forsworn Justice, and not fit to be a Justice of Peace; if I did see him I would tell him it so to his Face.

After Verdict for the Plaintiff, it was moved in Arrest of Judg∣ment, That these words were not actionable, because forsworn doth not necessarily intend any judicial Perjury, and there was no Communication of his Office. One said of a Justice of Peace, He is a Blood-sucker and seeks after Blood; if one will give him a couple of Capons he will do any thing, and held not actionable; because there was nothing to make them relate to his Office, Rolls 56, 29. Nevertheless, the Plaintiff had his Iudgment by the Opinion of all the Court; for the calling of him forsworn Justice, shews he intended Perjury relating to his Office; to which an Oath is annexed.

Manwood brought an Action for calling of him A corrupt Judge, 4 Co. Cases of Slander. 1 Cro. for calling of an Attorney A cheating Attorney. And Sir John Masham recovered for calling of him Half-eared Justice. Vid. Rolls 53. pl. 4. and 4 Co. Stucleys Case. And here the latter words, viz. That he is not fit to sit upon a Bench, Shews that he intended the Scandal in his Office; and words shall not be taken in mitiori sensu, so far as to draw them from the general Acceptation; and sermo refert ad conditionem per∣sonae.

Twisden cited a Case, where a Man brought an Action for saying, He was a Debaucht Man, and not fit to be a Justice of the Peace; and not maintainable, because spoken of the time past: If it had been, He is Debauched, he said the Action would lie.

Hill versus Langley.

DEbt upon a Bond to perform an Award. After nullum fecere Arbitrium pleaded, The Plaintiff replies and sets forth, That they submitted to the Award of 4, so that they made it by the 16th of Nov. and signified it under the Hands and Seals of two of them, and then alledges the Award under two of their Seals; to which the Defendant demurred, conceiving the Award to be void, be∣cause

the submission was to four. But the Court gave Iudgment for the Plaintiff, according to the Cases in 2 Cro. 276. and 400.

Anonymus.

IN an Indictment for the using of a Trade contrary to the Sta∣tute of 5 Eliz. It was said, That to keep a Shop within a Country Village was not within the Statute; and it were very inconvenient, that the Inhabitants must go to some great Town upon every occasion. And it was also Juratores dicunt super Sacra∣mentum suum, and not adtunc & ibidem jurati.

If a Statute appoints an Indictment to be taken at the Quar∣ter Sessions, the Caption must be Entred ad Quaterial' Ses∣sion', &c. for ad General' Session' pacis will not serve.

Jackson versus Gabree.

JAckson took out a Capias ad satisfaciend' against Gabree and his Wife; the Gaoler lets the Husband escape. The Court was moved, that the Wife might be discharged; alledging that the Husband took no care of her, but let her lie there in a very necessitous Condition. They were doubtful what to do in it at the first motion, but did afterwards resolve, That unless the Plaintiff would get the Husband taken again, as he might do, they would discharge the Wife; and they said, the Escape of the Husband was the Escape of the Wife.

Anonymus.

AN Infant brought an Assumpsit by his Guardian, and decla∣red, That whereas the Defendant entred into his Close and cut his Grass, that in consideration that he would permit him to make it Hay, and carry it away, he promised to give him six pounds for it; and he also declared for six pounds Debt more that he ought him.

Vpon this Declaration the Defendant demurred, supposing it to be no Consideration; for the Infant was not bound by his per∣mission, but might Sue him notwithstanding; and then the promise to pay six pounds Debt was not good, because not declared how indebted. But the Court gave Iudgment for the Plaintiff.

Sir Henry Frederick Thynne versus Sir James Thynne.

PAsch. 13 Car. 2. B.R. Rot. 448. Vpon a Special Issue directed out of Chancery, the Case was thus, One was seized in Tayl of the Mannor of B. and of two Closes, which in reality were not part,

but reputed part thereof, and suffered a Recovery only of the Mannor with the Appurtenances; and whether the Recovery was a Bar as to the two Closes, was the Question. And in the 16 year of this King, it was resolved by all the Court, and Hide Chief Justice delivered the Opinion of the Court, That the Lands reputed parcel of the Mannor should pass, by reason of the Deed of Covenants to lead the uses, which explained the intent, Dier 223. 1 Cro. Sir George Symond's Case, Hob. 177. Dier 376. Long 5 to E. 4. 303. 6 Co. Sir Moyle Fynch's Case. Modern Rep. 250.