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 Paschae, Anno 23 Car. II. In Banco Regis.

Error.

A Judgment out of an inferiour Court was reversed, because being by default the enquiry of Damages was only by two Jurors, and Custom alledged to Warrant it.

And it was resolved by the Court, That there cannot be less then twelve, though the Writ of Enquiry saith only per Sacra∣mentum proborum & legalium hominum, and not duodecim as in a Venire.

Note, There were divers Recognizances take before the Lord Chief Justice Keeling; who died before his Hand was set to them.

It was moved by Coleman, that they might be Filed.

But the Court said a Certiorari must go to his Executors to certifie them, and doubted whether they were compleat Records.

If a Warrant of Attorney be given after the continuance day, to enter up a Judgment as of the Term preceding; this may be well enough, if it be dated within the Term; but it cannot be so, if such a Warrant be given to confess a Judgment generally, and dated after the Term.

Anonymus.

A Prohibition was prayed by one, who being a Churchwar∣den, was tendred an Oath by the Court Christian, to pre∣sent according to the Bishops Articles, which he refusing to take, was Excommunicated.

Now, for that some of the Articles were to present Filthy Tal∣kers, Revilers and Common Sowers of Sedition amongst Neigh∣bours, which were general Terms, and might be understood to comprehend things out of their Iurisdiction, the Court conceived a Prohibition ought to go as to them.

But he should have first pleaded there, quod non tenetur respon∣dere as to those matters, and upon their refusal to have prayed a Prohibition.

Elpicke versus Action.

AN Action of Trover was brought de diversis vestimen∣tis.

And held not to be good, because not expressed what kind of Garments.

But 7 Jac. Emery's Case, where Trover was brought for a Library of Books, and held to be good without expressing what they were; because to set down the particular Books, would make the Record too pro∣lix. Vid. 3 Cro. 164. and Pl. Com. where a man pleaded that he was chosen Knight of the Shire, per majorem numerum, and held to be good.

Barnard versus Michel.

IN an Action of Debt, the Plaintiff declared upon a Deed com∣prehending divers Covenants, for the performance of which the Defendant obliged himself in the penalty of 40 l and sets forth that the Defendant had broke the Covenants.

The Defendant pleaded non est factum, and it was found for the Plaintiff.

And it was moved in Arrest of Judgment, That though the Issue was found for the Plaintiff; yet he having assigned no Breach, no Cause of Action appeared upon the Record; so he could have no Judgment.

For if the Declaration be insufficient, let the Defendant plead what he will, yet Iudgment shall not be given against him.

Indeed if the Action had béen brought upon a Bond Conditi∣oned for the performance of Covenants, and non est factum had béen pleaded; no Breach needed to have been assigned, for then the Declaration is only upon the Bond, without mentioning any thing of the Condition.

But here the Breach of the Covenant is, as it were a Condi∣tion precedent, to Entitle him to the Penalty; and here the de∣claring that he broke the Covenants without shewing which, or how, is altogether insufficient, though the Defendant who pleads in the Negative, might have pleaded non infregit conventiones. Vid. Rastals Entries 162. Pl. Com. 5. A President just agreeing to this Case.

But the Opinion of the Court inclined for the Plaintiff here. Sed Adjornatur. Vide Postea.

Anonymus.

A Mandamus was prayed to the Ecclesiastical Court, to Swear two Churchwardens elected by the Parish, surmising that so was the Custom in that place; but that the Bishops Officers had refused to admit them, upon pretence that the Parson ought to chuse one.

And it was granted. Vid. 2 Rolls 106, 107. 3 Cro. 551, 589. such a Writ granted.

The Case of the City of London and Coates.

COates who was Imprisioned in Newgate, by the Court of the Lord Mayor and Aldermen, brought an Habeas Corpus, and the Sheriffs returned, that the Custom of the City was, That if any Freeman hath Forestalled any Fish, coming to any Market within the City, and complaint made thereof to the Court of Al∣dermen, and he appearing there confessing the same, and they or∣dain that he shall desist from such Forestalling, and he will not promise to obey; but declares in Court, That he will not obey their Order, That the Court there had time out of mind used to Commit such Freeman, until he signified to the said Court, that he would conform himself.

Then it is Returned, That complaint was made to the said Court, that this Coates had Forestalled a great number of Lob∣sters; whereupon they caused him to appear, which he did, and con∣fessed the same, and they ordained, that he should desist from such Forestalling; but he said Obstinately and in Contempt of the Court, That he would not obey their Order; whereupon they com∣mitted him to Newgate, until he should signifie to the Court, that he would conform himself, or otherwise he delivered by due course of Law.

The Return being Filed.

It was moved by the Attorney General, That is was insuffici∣ent; for a Custom to commit a man for Forestalling is void, and that Offence was always Bailable, and so it appears by the

Register; But here the Commitment is to remain in Prison, with∣out Bail or Mainprise.

Also the Commitment is upon a Complaint without Oath, which ought not to be; neither ought they to extort a Promise from him, to observe their Order, admitting it to be Legal, for an Oath can∣not be imposed upon a Man to keep the Law.

Besides, The Custom is absurd, to Commit a Man to Prison until he submits to the Court; whereas a Man in Prison cannot come into Court to make such Submission; and then suppose they will keep no Court, must a Man lie in Prison whilest they do?

Then the Custom as it is laid, reserves the discharge of him only to themselves; for it is said, or by due course of Law.

This Imprisonment looks in the Face of Magna Charta, which saith nullus liber homo Imprisonetur, &c. in all Offences Finable, the Imprisonment is only to be until the Fine is paid; if the Fine be tendred, there is to be no Imprisonment at all, and so resolved in Parliament, Br. tit. Imprisonment 100.

To this it was answered by Jones on the other side, That the Imprisonment in this case was not for Forestalling, but for the Contempt to the Court.

It is returned that he confessed the Fact, and yet declared that he would not conform himself to the Order of the Court; the Pro∣ceeding is very mild, not to punish for an Offence unless com∣mitted after an Admonition in Court. It is implied in the Custom, That he may be delivered by due course of Law, it is sufficient to express that in the Commitment, and so it is.

Also he cannot be prejudiced by the deferring of Courts, for the Custom is returned to keep the Court of Aldermen twice a Wéek.

It is not that he shall come in person and submit to the Court, but that he shall signifie his conformity to the Court, which may be done by Letter or Message; and it is returned, that he did not by any means submit himself.

Twisden, The Custom doth not here come in Question, The Com∣mitment is returned to be for a Contempt to the Court; It must be allowed they have such power, for they are a Court of Record. Langham was Committed, for refusing to take the Oath usually administred to Sheriffs; and resolved to be good, because it con∣cerned the Government. The City hath the Regulation of Trade, and Orders made by them, that one Man should not use the sign of another, and for distinguishing Trades, (Viz.) That a Plaisterer should not use the Trade of a Bricklayer, and such like, have béen allowed.

Wherefore the Court remanded the Prisoner, he promising to make submission at the next Court, and the Sheriff promising he should be discharged thereupon.

Phillips versus Kingston.

HIll. 22 & 23 Car. 2. In an Action of Slander the words were, He hath broke three or four of his Fathers Ribbs, of which he shortly after died, and I will complain to a Justice of him: He may be hang'd for the Murder altho' it were done twenty years since.

After Verdict for the Plaintiff, it was moved in Arrest of Judg∣ment, that he did this hurt to his Father against his will, as it might be intended; and tho' the Defendant said he might be Hanged for it, that is but his Iudgment and Collection thereupon. As Jacob and Mills's Case, 2 Cro. 343. where the words were, Thou hast poysoned Smith, and it shall cost me an hundred pounds but I will have you hanged for it. And it was Resolved that an Action did not lye, because it might be unwillingly done, Hob. 6.

Also it is not averred that the Father was dead, and that is necessary; for otherwise it shall be taken that he is alive, and then 'tis no Slander; and so is Yelverton 21 and Hob. 6.

But the Court held, That the Plaintiff must have his Judgment; for taking all the words together, the Defendant must necessarily intend a murdrous Killing; and for the not averring that he was dead, Twisden said, the latter Opinions have all been, that this is not necessary; and the Action lies, unless it appears upon the Record that the party is alive.

Anonymus.

IN an Action for Words, the Plaintiff declared that he was a Woollen Draper; and the Defendant said of him, You are a cheating Fellow, and keep a false Book.

After Verdict for the Plaintiff it was moved in Arrest of Judg∣ment, that the words might not be intended to relate to his Trade; for they were capable of another sense, and there was no collo∣quium of his Trade.

Sed non allocatur: For they must be intended of a Debt-Book which Shop-keepers keep, and to say such an one keeps a False Book it is a great slander to him in his Trade. Vid. 1 Cro. 403.

Twisden cited a Case, Where Roberts an Attorney brought an Action for saying, Go tell the black Knave Roberts, That I will teach him, or any Attorney in England, to sue out a Writ against me, and he had Judgment; for it was as much as to call him Knave Attorney, Hill. 22 & 23 Car. 2. Rot. 1426.

Methin and the Hundred of Thistleworth.

AN Action was brought upon the Statute of Winton.

The Defendants pleaded, that they made Hue and Cry, and that within 40 Days they took one Dudley, which was one of them that did the Robbery, and had him in custody.

The Plaintiff Replied, That Dudley was not taken upon their fresh pursuit modo & forma.

And upon this Issue the Jury find a Special Verdict to this effect:

That the Hundred made Hue and Cry, and that Sir Joseph Ash finding Dudley in the presence of Sir Philip Howard, a Justice of the Peace of Westminster, at his House in Westminster, the said Sir Joseph being an Inhabitant in the Hundred of Thistleworth, charged Dudley with this Robbery before Sir Philip, who promised he should appear at the Sessions at the Old Baily.

And whether this be such a Taking as is put in Issue, they referred to the Iudgment of the Court.

Jones for the Plaintiff Argued, That in this Case there doth not appear to be any Taking at all, but only a Discourse between Sir Joseph Ash and Sir Philip Howard. As admitting the Issue were, Whether a man were Arrested or no; and it should appear upon Evidence that one should come to the Sheriff and declare, That he had a Writ against such a man then present; and upon this the Sheriff should say, I will take his word for his Appear∣ance; this clearly could not be taken for an Arrest.

Again, The Issue is, Whether he were taken upon the fresh pursuit of the Hundred; and it doth not appear by the Verdict that there was any Hue and Cry made this way, and it might be ceased before this time: But it seems rather, that Sir Joseph Ash found him by accident.

But the Opinion of Hales Chief Justice, Twisden, Rainsford and Moreton, was, that Judgment ought to be given for the Defendant: For the charging of Dudley with the Robbery in the presence of a Justice of the Peace was clearly a Taking within the Statute.

For being in the presence, which the Law construes to be under the Power or Custody of the Magistrate, it would have been vain and impertinent to have laid hold of him; and it shall be intent∣ed, that this was upon Fresh pursuit: For when the Verdict refers one Special Point to the Iudgment of the Court, all other matters shall be intended.

And the Chief Justice said, That if the Hue and Cry was made towards one part of the County, and an Inhabitant of the Hundred apprehended one of the Robbers within another, yet this was a Taking within the Statute.

Hornsey (Administrator of Jane Lane) versus Dimocke.

THe Plaintiff, as Administrator of Jane Lane, brought an Assumpsit, and declared, that he had formerly deposited such a Sum in the Defendants hands, for the use of the Intestate Jane Lane; in Consideration whereof the Defendant promised to the Plaintiff, that he would pay it her; or if she died before 18 years of Age, that he would pay it to her Executors: And shews, that she died before 18, and that he had not paid it to the Plaintiff, her Administrator, licet saepius requisitus.

Vpon non Assumpsit, a Verdict was for the Plaintiff.

It was moved in Arrest of Judgment, that the Plaintiff brought this Action as Administrator, which ought to have been in his own right; for the Promise was made to him.

Sed non allocatur: For if a man names himself Executor or Administrator, and it apears the Cause of Action is in his own right, it shall be well enough, and he calling himself Executor, &c. is but Surplusage. But here it seemeth Jane Lane might have brought an Assumpsit, because she was the party to whom the Money was to be paid. So it is good either way.

It was further Objected, That it was not averred, that the Defendant did not pay the Money to Jane Lane during her Life.

Sed non allocatur: For 'tis aided by the Verdict. As the Chief Justice said a Case was Adjudged, where an Assumpsit was brought upon a Promise to pay Money to two or either of them; and declared that the Money was not paid to the two, and not said, or either of them; yet Resolved to be good after Ver∣dict.

Matthewes versus Crosse.

IN Debt for Rent the Plaintiff Declared, That by an Indenture made in the Parish of St. Mary Undershaft, London, he Let an House to the Defendant, situate in parvo Turris monte, reserv∣ing so much Rent, &c.

The Defendant pleads, That before the Rent incurred, the Plaintiff entred into a certain Room of the said House, apud parvum Turris montem praedict', and so suspended his Rent, upon which it was Demurred.

And it was shewn for Cause, That no place was alledged where the Entry was, but said to be at Little Tower-Hill, which cannot be intended a Vill. And a Case was cited of an Indictment in this Court, of a Fact laid to be done at White-Hall, and quashed for want of Place. And to this the Court inclined; but the Matter was ended by Comprimise'.

Anonymus.

A Prohibition was prayed to a Suit for a Pension in the Ecclesiastical Court, surmising that the Lands out of which it was demanded were Monastery Lands, which came to the King; and that he granted the Lands, &c. under which Grant the Plaintiff claims; and that he Covenanted to discharge the said Lands of all Pensions, &c. and this upon the Statute of 34 H. 8. cap. 19. which appoints the Suit to be for Pensions in such cases in the Court of Augmentations, and not elsewhere.

But the Court would not grant it, until the Letters Patents of Discharge were produced, being a matter of Record.

But where the Surmise is of matter of Fact, it is sufficient to suggest it.

And it was said by the Court, That Pensions, whether by Pre∣scription or otherwise, might be sued for in the Ecclesiastical Court; but if by Prescription, then there was also Remedy at the Common Law. F.N.B. 50. 1 Cro. 675.

Davis versus Wright & al'.

HIll. 22 & 23 Car. 2. Rot. 701. In an Assumpsit the Plaintiff declared, That his Father gave him by his Will, 3 l per annum during his Life, and that he was about to Sue for it; and that the Defendants being Executors to the Father, in Consi∣deration that the Plaintiff would forbear to commence a Suit against him for it, promised to pay him.

The Defendants plead, That the Testator was indebted in divers Sums, and ultra to pay them he had no Assets.

To this the Plaintiff demurred; for that by this Promise the Defendants have made it their proper Debt.

But it was said on the other side, That if there were no Assets, there was no cause for the Plaintiff to have commenced a Suit: And to stay a caussess Suit can be no Consideration;* 1.1 as the Case of Smith and Johns, 2 Cro. 257. where one having married an Executrix, after her decease promised J. S. that if he would forbear a Suit against him for a Legacy, he would pay it.

It was held to be a void Promise, being in no wise liable to be sued after the Death of his Wife: And the Opinion of my Lord Coke, 9 Rep. 94. in Bane's Case is, That an Executor shall not be charged with such Promise, unless he hath Assets.

But the Court Resolved for the Plaintiff: For it is not material whether the Defendants had Assets or no at the time of the Pro∣mise; for by the Promise they caused the Plaintiff to desist, who peradventure at that time was prepared to prove Assets; and relying upon such Promise might be much to his prejudice, if he could not afterwards recover upon it.

But the Chief Justice said, If it had appeard upon the Declara∣ton that there were no Assets, the Plaintiff by shewing that would have destroyed his Action.

Vere versus Smith.

IN Debt upon an Obligation.

The Condition recited, that the Defendant served the Plaintiff as a Brewer's Clerk, and that if he performed such Cove∣nants, &c.

The Defendant pleads, performavit omnia.

The Plaintiff Replies, That one of the Covenants was to give the Plaintiff a true Account of all such Moneys as the Defendant should receive, &c. whensoever he should be thereunto requested; and alledged, that 30 l came to his hands, and that he requested him to give an account of it, which he refused to do.

The Defendant Rejoyns, confessing the Receipt of the said Money, but saith, That before Request made by the Plaintiff, he laid it up in the Plaintiffs Warehouse, and that certain Malefactors (to the Defendant unknown) stole it away, & hoc paratus est verifi∣care. And to this the Plaintiff Demurs generally.

And Jones Argued, That the matter contained in the Rejoynder was a Departure from the Bar, for it doth not amount to an Account, but rather an Excuse or Discharge of himself, why he should not account.

Again, He ought not to have averred his Plea, but to have concluded to the Country. For the Plaintiff in his Replication having alledged, That he gave no Account; and the Defendant in his Rejoynder setting forth, That he did give an Account, there is an Issue joyned; wherefore it ought to have been concluded, & de hoc ponit se super Patriam.

But these Matters were Over-ruled.

For as to the first, the Court held it no Departure, but a For∣tification of the Bar; for shewing that he was Robbed, is a giving an Account.

And as to the second, the Conclusion is proper; because the Defendant alledges New Matter, and therefore ought to give the Plaintiff liberty to come in with a Surrejoynder and answer to it; for he doth not only say, that he gave an Account, but sets forth the Special Matter, how.

Wherefore the Court gave Judgment for the Defendant.

Note, A Clerk of the Court must appear de die in diem, to any Mat∣ters against him on the Crown side, as well as on the Plea-side.

Reynell versus Heale.

AN Information was brought upon the New Statute against Conventicles; for that the Defendant being a Justice of the Peace in Devonshire, and Complaint being made to him by Rey∣nell of a Conventicle, he refused to go to the place to suppress it; and sets forth three Omissions of that kind, and that the Statute Enacts, That a Justice of Peace, for every such neglect of doing his Duty, shall forfeit 100 l the one Moiety to the King, the other to the Informer; & unde actio accrevit for 100 l to the King and himself.

The Defendant pleads non debet the said 100 l to the Informer, nec aliquam inde parcellam, & de hoc ponit se super Patriam, & praedict' Reynell similiter.

And upon this Issue Verdict was given for the Informer.

Jones moved in Arrest of Judgment, That he conceived there were no words in the Act to oblige the Justice of the Peace upon such Information, to go in person to the Place where such Meeting is; and 'tis not said here, that he refused to grant a Warrant, or the like.

But he did not much insist upon that, but moved that the Issue was not well joyned; for it is only between the Informer and the Defendant, and so the Plea is quod non debet to the Informer, and no mention of the King; whereas the Action is qui tam, and the Act gives the Moiety of the Penalty to the King.

The Court said nothing to the first matter, but held clearly that the Issue was misjoyned; and said, that a Repleader ought to be awarded.

Polexfin and Ashford versus Crispin.

HIll. 22 & 23 Car. 2. Rot. 225. The Plaintiff brought Trespass, Quare pisces suos cepit in separali Piscaria.

Vpon Not Guilty pleaded, and Verdict for the Plaintiffs, it was moved in Arrest of Judgment, that the Plaintiffs ought not to have called them Pisces suos, unless they had been in a Trunk or Pond:

For there is no more property in Fishes in a Several Piscary, than in a Free Piscary.

In an Action for taking of Conies in a Warren,* 1.2 he shall not say Cuniculos suos; and this is such a default as the Verdict shall not aid. Sed non allocatur.

For the Chief Justice said, it might be intended a Stew Pond, which is a mans Several Piscary; and after a Verdict the Court shall admit any Intendment to make the Case good.

And Twisden cited a Case which was in Trespass, Quare Phasia∣nos suos cepit, and the Plaintiff had Judgment after Verdict; for it shall be intended they were dead Pheasants. And the Case of Child and Greenhill, 3 Cro. 553. is the same with this.

But the Court held, that it had been good upon a Demurrer, by reason of the local Property: And so is the Register.

Hoskins versus Robbins.

IN Replevin the Defendant avowed for Damage feasant.

The Plaintiff Replies and saith, That the place Where is parcel of the Waste of such a Mannor, within which Mannor there are Copyholds demisable time out of mind; and that the Copy∣holders have had time out of mind the sole Feeding of the said Waste; and that J. S. being a Copyholder of the said Mannor, Licensed him to put in his Cattel.

The Defendant traverses the Prescription, and it was found for the Plaintiff.

Levins moved in Arrest of Judgment that Prescription to have the sole Feeding,* 1.3 whereby the Lord shall be excluded from all the benefit of his Soyl, is not allowable; and the Lord cannot in this case ever make any profit of the Mines, for he may not Dig.

'Tis true, a Prescription may be, to have the sole Feeding from such a Day; for there the Owner hath his time also.

Again, He alledges a Custom of Dimising Copyholds, and doth not say for what Estate, neither doth he name any Copyholders. Also, he should have averred, that the Beasts were levant and couchant.

One prescribed to have omnes Spinas, yet laid them to be spent in a certain House. And the Verdict shall not help the Defect, as this Case is; but if the Copyholder had pleaded so himself, it should: For after a Verdict it is intended they were levant and couchant; but that cannot be in case of a Stranger Iustifying by Licence.

He took another Exception also, That a Licence was pleaded here, and not shewn to be by Deed, as it appears it ought to be, 2 Cro. 575.

As to the first it was Answered, That this Prescription did not take all the Profit from the Owner of the Soyl, for there might be Trees and Bushes growing; and if any one should Dig the Soyl and discover Mines, the Lord should recover Damage in respect of the Mines. Such an Interest as this might commence by Grant, and therefore lies in Prescription. The same Objection might be made against the sole Feeding for some part of the Year: for the property of the Soyl remains in the Lord at that time also, when the Profit is divided from him, and it may be as well allowed for a longer as a shorter time; this is no more than the Herbage or Vesture of the Land. And Prescription to dig Turves cuts as deep into the Profits; and yet that may be in one, and the Soyl in another.

As to the second, It is not needful to shew for what Estates the Copyholds have been demised; for it is not laid by way of Pre∣scription in them (for then it would be material to shew that they had such Estates, as might supports a Prescription;) but as a Custom in the Mannor; and to have named them would have made a Re∣pugnancy, (viz.) that such particular Copyholders had the sole Feeding time out of mind, 3 Cro. 311.

* 1.4Neither is it needful to alledge, that the Beasts were levant and couchant, in regard that he claims the sole Feeding, which may therefore be with what Beasts he pleaseth.

And it is not needful, that the Licence should in this case be by Deed; for it passeth no Interest, and serves but for an Excuse of Trespass; and 'tis for no certain time, but only pro hac vice.

The Opinion of the Court inclined for the Plaintiff. Sed Adjor∣natur. Vide postea.

The Duke of Richmond versus Wise.

IN an Ejectment the parties had a Trial at Bar, and a Verdict for the Plaintiff.

The Court were moved to set aside this Verdict, upon an Affidavit made of these Misdemeanors in the Jury, (viz.) That they had Bottles of Wine brought them before they had given their Verdict, which were put in a Bill together with Wine and other things, which were eat and drank by the Servants of the Jury, and the Tipstaves that attended them at the Tavern where they were con∣sulting their Verdict.

That this Bill (after the Verdict given) was paid by the Plaintiffs Solicitor; and that after they had given up their Privy Verdict, they were Treated at the Tavern by the Plaintiffs Solicitor, before their affirmance of it in Court.

Counsel being heard on both Sides, as to these matters, the Court delivered their Opinions seriatim, that the Verdict should stand.

They said they were not upon a discretionary setting aside of the Verdict, as when the Jury goes against Evidence; but whether these miscarriages shall avoid it in point of Law.

They all agreed, That if the Jury eat or drank at the charge of the party for whom they find the Verdict, it disannuls their Verdict; but here it doth not appear, that the Wine they drank was had by the order of the Plaintiff, or any Agent for him.

'Tis true, in regard his Sollicitor paid for it afterwards, it doth induce a presumption that he bespoke it; but that again is ex∣tenuated, by its being put into a Bill with other things that were allowable; and if the Verdict should be quashed for this Cause, it must be entred upon the Roll,* 1.5 that it was for drinking at the Plaintiffs charge, and it is not proved, that this Wine was pro∣vided by him.

And as to the other matter, That they received a Treat from the Plaintiff after their Privy Verdict given, and before it was given up in Court, that shall not avoid their Verdict.

But if the Defendant had treated them, and they had changed their Verdict, as they might have done in Court, it should then have been void, Co. Lit. 227. b. It after the Jury be agréed on their Verdict, (which the Chief Justice said must be intended, such an Agréement as hath the signature of the Court put up∣on it, (viz.) (A Privy Verdict,) They eat and drink at the charge of him for whom they do pass it, It shall not avoid the Verdict, and if it should, The Court said most Verdicts given at the Assizes would be void; for there 'tis usual for the Jury to receive a Col∣lation after their Privy Verdict given, from him for whom they find. But such practice ought not to be, and if any of the Parties, their Attorneys or Sollicitors speak any thing to the Jury, before they are agreed relating to the Cause, (viz.) That it is a clear Cause, or I hope you will find for such an one, or the like, and they find accordingly, it shall avoid the Verdict; but if words of Sa∣lutation, or the like pass between them, (as was endeavoured to be proved in this Case) they shall not. Also if after they depart from the Bar any matter of Evidence be given them, as De∣positions or the like, tho' the Jury swear they never looked on them, yet that shall quash their Verdict. But they all held in this Case, that tho' there was great matter of Suspition, yet there was not matter of clear proof (as there ought to be) sufficient to disannul this Verdict; but they said it was a great Misdemeanour in the Jury, for which they ought to be fined; and that the Plain∣tiffs Sollicitor had carried himself with much blame and indiscretion; and the two Tipstaves which attended the Jury, for that they were not more careful, but connived at these matters, were fined, the one 40 shillings, (who appeared to be most in fault) and the other 20 shillings.

Barnard versus Michell.

HIll. 22. & 23 Car. 2. Rot. 865. The Case was moved again, and by the Opinion of all the Court, Iudgment was gi∣ven for the Plaintiff, being after a Verdict.

For though the pleading, that he brake all the Covenants, would not have béen good upon a Demurrer, as they said, for two Reasons;

First, For that it would have been double, in regard that the breach of any one of them would have intituled the Plaintiff to the penalty.

Secondly, For that some of the Covenants were such as he ought to have assigned a special breach upon, that it might have been in the Iudgment of the Court; yet now the Verdict hath aided these defects.

Pellow versus Kingsford.

IN an Action of Debt sur l'Estatute 2 E. 6. for not setting out of Tythes. After Verdict for the Plaintiff, it was moved in Ar∣rest of Judgment.

* 1.6That the Lands out of which the Tythes were demanded, were shewn in the Declaration to lie in two Parishes; so that the Plaintiff ought to have made several Titles, and also have shewn how the Tythes should have béen set out upon the Land, (viz.) how much in one Parish, and how much in the other.

But it was held to be well enough, for this Action is but in the nature of Trespass, and to punish the Tort in not perform∣ing the Statute.

Anonymus.

IN an Information upon the Statute of Usury. After Verdict at the Assizes for the King, it was moved in Arrest of Judg∣ment, That the Venire was not well awarded, for it was entred ideo ven' inde jur'; whereas it should have béen praeceptum est Vicecomiti, &c.

The Court commanded to search Presidents, and were informed that they were generally so.

Anonymus.

A Prohibition was prayed on the behalf of a Churchwarden to the Ecclesiastical Court, for that they tendred him an Oath upon these Articles following.

First, Whether any Person within his Parish, hath Encroached upon the Church-yard?

Secondly, Whether any Person within his Parish were an Adul∣terer, or Filthy Talker, Sower of Sedition, Faction, or Discord amongst their Neighbours?

Thirdly, Whether there were any which did not resort to their Parish Church, receive the Sacraments, &c.?

It was said to the first of these, That it concerned Matter of Freehold. But this was Overruled, for they may take notice of En∣croachments upon the Church yard.

And to the second, Sowing of Sedition amongst Neighbours, is inquitable in the Leet, and the Bishops Court hath nothing to do with it. Besides, This Oath would oblige him to charge himself Criminally; for it is whether any person within the Parish, &c. so that himself is included.

And as to the Sowing of Discord, The Court held it did not be∣long to them.

But they held, That the general words would not extend to the Churchwarden himself; but intended to relate only to the rest of the Parish.

But upon examination of the matter it appeared, That the Oath tendred was only in general words, (Viz.) To make Pre∣sentations according to the Kings Ecclesiastical Law. And these Articles were offered only by way of direction, & quasi a charge. Wherefore the Court denied the Prohibition.

Anonymus.

IN Replevin of Beasts taken at D. the Defendant pleads in A∣batement, that they were taken in another place; absque hoc, that they were taken at D. Et pro Return' habend', he Avows for Rent reserved upon a Lease. The Plaintiff replies, and Traverses the Lease, which should not be; for though the Defendant when he pleads such a Plea in Abatement, must also Avow to have a Re∣turn; yet the Plaintiff cannot answer to it,* 1.7 but must take Issue upon the other Matter.

Sir William Smith versus Wheeler.

IN Error upon a Judgment in the Common Pleas in Ejectment, for the Rectory of Hadnam in the County of Bucks, where the Jury found as to a third part of the Rectory, the Defendant Not guilty.

And to the other two parts, a Special Verdict to this ef∣fect.

That Simon Maine was possessed of the two parts of the Re∣ctory for 80 years, and in the year 1643 made by Indenture, an Assignment of them to Crook and Bleak upon these Trusts fol∣lowing, (viz.) In trust for himself for Life, and after his Decease for the payment of his Debts, and for the raising of several Sums to be paid to divers of his Kindred. Proviso, That if he shall at the time of his Death leave a Child, or his Wife Enseint, then that it shall be to such Trust and Use as he shall limit and appoint by his Will, and if he made no such appointment, then to be in Trust for such his Issue. Provided further, That if Simon Maine should be minded, or willing at any time to make void the Present Indenture, or to Frustrate any Use or Trust therein, or create any new, or to dispose the Estate to any other person, or any other way, and such his purpose shall declare by Writing, under his Hand and Seal before Witness, &c. that then, and thenceforth the Trusts therein, &c. or so many of them, &c. should be void, &c.

Then they find that in 1644 he had Issue a Son, and that he took the profits thereof during his Life, and made several Leases of the Premises.

That the Assignees had no notice of this Trust during his Life, and that after his Death one of them assented, and the other dis∣sented to it.

They find that in 1648 he committed Treason, and was there∣of Attainted.

They find the Act of 12 Car. nunc, cap. 30. Whereby it is En∣acted, That all Mannors, Lands, &c. Leases for years, &c. which he or any to his use, or in trust for him had, 25. Mar. 1646. or a•• any time since, shall stand and be forfeited, &c. and also all Rights and Conditions, &c.

They find that the said Simon Maine died in 1661, and that the King made a Grant to Sir William Smith the Plaintiff.

It was adjudged for Wheele•• in the Common Pleas, Pas. 20 Car. 2. by Tinel and Archer, who were then the only Judges in the Court; and Sir William Smith brought a Writ of Error in this Court, and after divers Arguments at the Bar, the Iudgment was affirmed this Term, by the Opinion of the whole Court.

Moreton. I shall say nothing to the marks of Fraud found in the Verdict; for tho' at first the Counsel of the Plaintiff insisted, that the Court ought thereupon to adjudge the Settlement fraudu∣lent; yet it hath been since by them declined, wherefore I shall wave that,

The matter is, whether there be any thing forfeited longer than the Life of Maine.

It hath béen objected, That in regard Simon Maine had a power of altering the Trusts, and disposing of them otherwise, that this should amount to an implied Trust in him of the whole Term; but that cannot be, for after his Decease, the Trust is expresly limited to others.

'Tis true, he had a power of disposing, but that was to be executed at Election, and by such Circumstances as were indivi∣dually privy to himself.

For it was to be done by his Will, according to the first Proviso. And by the second, to be done by Writing under his Hand and Seal; so not like to Englefields Case, in the 7 Co. 1.1. b. where the power of Revocation was to be executed by the tender of a Ring, which any one might do as well as the party himself.

But indeed this is the same case, with the D. of Norfolks ci∣ted in the same Report; and the Statute of the 33 H. 8. of Forfeiture upon that Attainder, was penned as amply as this of 12 Car. and the Case of Warner and Harding, Latch. 25. is very like this: W. Shelley enfeoffed divers to the use of himself for Life, and afterwards to divers others upon Condition, that if a Ring were delivered by the said William Shelley, declaring that he intended those uses should be void, that then, &c. it was resolved, that nothing was forfeited, but during his Life.

Rainsford. I shall speak nothing to the Fraud, because that is a pure matter of Fact, which is to be found by the Jury, and can∣not in any Case be presumed by the Court.

I am of Opinion, that the Judgment ought to be affirmed.

The power of altering the Trusts reserved by the first Proviso, is inseparable from the person of Simon Maine, for it is to be by his Will; in Moor 193. the Lord Pagetts Case, It is resolved, that inseparable Powers are not forfeited upon like words as are in this Act, and so the second Proviso limits to him a double Power.

First, Of revoking the old Trusts.

Secondly, Of limiting new. But this is to be done by Wri∣ting, under his Hand and Seal in the presence of two Witnesses, so the performance of this also is personal.

The D. of Norfolks Case is the very same, unless for that it is there under his proper Hand and Seal, and here under his Hand and Seal, which certainly is all one.

But admitting this Power were forfeited, yet it is not found, that ever it was executed after it come to the King, which must be before any Estate could come to the King; therefore in Englefields Case it was found, that a Ring was tendred in the behalf of the Queen.

And whereas it was objected, That he had jus disponendi, and therefore might Forfeit, as a Man shall a Term which he hath in right of his Wife, as Dame Hale's Case in Plowden is resolved. I answer, That here he hath not jus disponendi, but rather pote∣statem disponendi, but that is qualified, and to be executed by certain Circumstances, which must be performed to give it effect.

Twisden. As to the Fraud, I cannot see how the Jury could have found this fraudulent Settlement, made to prevent a Forfeiture enacted by Parliament 20 years after, which surely could not be without the Spirit of Prophecy.

I am of the same Opinion, as to the matter, with my two Brothers.

That Simon Maine had only a Trust in him during his own Life; and if he had brought a Bill in Equity, he could have had the Estate executed no further, and therefore can Forfeit no more by this Act; and it is not always, that a Man that hath power over Land hath a Trust, as we may sée in Cranmers Case, Dier 308, 309. there were as large words in the Act of his Attainder as here.

Indeed the Argument in Englefields Case, 7 Co. rules this; for if a Trust had béen implied in the power of Revocation, they néeded to have argued, that it should have been forfeited as a Con∣dition; so the D. of Norfolks Case; for tho' the word Use is in that Act, and not Trust as in this, yet it makes no difference, for an Use was then the same with what a Trust is now; and tho' the word Power had béen in this Act, yet there should have béen no Forfeiture in this case, because the Execution of it is so personal and individual.

Neither is there found, that ever there was any Execution, and at most the Forfeiture could only be of what was in Simon Maine; neither can Smith Execute it by virtue of his Grant from the King, for the Kings Patent conveys nothing by implication, and shall never work to a double intent.

Hale Chief Justice of the same Opinion.

First, Crooke is a good Lessor, for the other Trustees disagrée∣ment makes the Estate wholly his.

Secondly, For the Circumstances of Fraud, they are not material to be considered.

Thirdly, The Trust is wholly disposed of after the Death of Simon Main, so that he had nothing but during his Life.

Fourthly, Then what is operated by the Attainder? Why the Trust during Life is forfeited. Vid. the E. of Somerset's Case, Hob. 214. 2 Cro. 512. But then this Trust must have béen executed by the Court of Revenue. 'Tis true, the Act doth not only give the Trust, but the Term it self to the King, that is, during the Life of Simon Maine; so that by this Act, so much of the Term is drawn out of the Trustees, as served the Trust which S. M. had, but leaves the residue of the Term to serve the other Trusts; so that the possibility of the Term returns to the Trustees, after the Death of S. M. and this appears by the body of the Act.

Also this appears by the saving in the Act. The first saving, which saves all the Conveyances, made by the Feoffor before the 29 of Sept. 1659. indeed might not help, because Conveyances made to the Wives, Children, or Heirs, are therein excepted. But there the other Proviso saves the Right, Interest, &c. of all persons whatsoever, doth in Law and Equity, not derived form the offen∣ders since, 25 Mar. 1646. and therein the Interest of Wife, or Children and all are saved; now this Estate was created before, (viz.) 1643. I come now to the Provisoes.

The first Proviso determins nothing till the time of Simon Maine's Death; and consequently this can revest no more to M. than he had before. For the Condition is in expectation till he have a Son living at the time of his Death; why then, by this there comes nothing to S.M. so much as in point of Execution during his Life: By his Will he might have limitted new Uses, but he made none; and 'tis personal: No other Man can make his Will.

Why then all stands as it did, and nothing is made void till the time of his Death, and then all is immediately executed to the Son, by force of the first Conveyance. But if the Proviso had béen, That if S.M. had a Son, there all had revested in S. M. and might have béen forfeited.

The last Proviso doth not create a Trust to him, for if he had not béen Attainted, the Trust should not have gon to his Exe∣cutors, &c. No, it creates a personal power of fetching back the for∣mer, and declaring new Trusts, observing the circumstances; up∣on the same reason, that this Estate can be forfeited, a bare Ex∣ecutor. (I mean, without a Devise of the residue) might forfeit his Estate; this is a Power, yea, and 'tis a manacled Power, it is a kind of Trust that he may revoke.

The D. of Norfolks Case is the same with this: So Harding and Warners Case which was adjudged in C. Banco, tho' there there were two to two, and it was confessed by the Kings Attorney in Scaccario, and the Kings Attorney doth not use to confess Judgment in Cases of great moment, without consultation with the Judges. This power was not, nor could be passed to the King by general words of all Land, &c. Conditions, &c. 3 Co. 2. a. b. much less

could it pass from the King, (if it could pass at all) by general words; but I rest upon this,

First, That it is a Power or kind of Trust to revoke, but no Condition.

Secondly, At least, not such a Condition as is given to the King.

Thirdly, If it were, it ought to have béen executed by the same means, as it should have béen by S. M.

In Englefields Case there was no pretence to have more than to execute the Condition; it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case, and Harding and Warners Case, for I caused the Cases to be search∣ed: This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords, &c. where persons have Uses in Lands respectively, as if they had the very Lands; but the Lord's, &c. cannot thereby claim any greater Interest than the cestuy que Uses had respe∣ctively in the Uses.

Now in this Case, The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process; for they ever did, and do run de terris de quibus illi aut aliquis ad eorum usum, &c. 'Tis true, in Sir Charles Hattons Case it was resolved, That the Kings Debr should be executed upon Land, wherein he had a power of Revo∣cation. Vid. Chirtons Case, 11 Co. 92. And so Iudgment was af∣firmed per toram Curiam.

Notes

• * 1.1

  1 Cro. 804. Yelv. 84.184.
• * 1.2

  5 Co. 34. b. F.N.B. 192, 193. 2 Cro. 195.
• * 1.3

  1 Cro. 434. 2 Cro. 256.
• * 1.4

  Yelv. 187.
• * 1.5

  1 Cro. 616.
• * 1.6

  Vid. 2 Cro. 68. Yelv. 63.
• * 1.7

  1 Cro. 896.