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 24 Car. II. In Banco Regis.

Monk versus Morris and Clayton.

THe Plaintiff after he had obtained Iudgment in Debt be∣came Bankrupt, and the Defendants brought a Writ of Error.

The Judgment was affirmed in the Exchequer Chamber, and the Record sent back.

Then a Commission of Bankrupts is sued out, and the Commis∣sioners Assign this Judgment.

The Plaintiff Sues out Execution, and the Money is levied by the Sheriff and brought into Court.

The Assignee moves, that it may not be delivered to the Plaintiff, surmising that the Judgment was assigned to him, ut Ante.

The Court said, they might have brought a Special Sicre facias, which they having delayed, and that it would be hard to stay the Money in Court upon a bare surmise, and for ought appeared, it was the Plaintiff's due. But however, because it might be ha∣zardous to deliver it to him, they consented to detain it; so that the Assignee forthwith took out a Scire facias against the Defendant, in order to try the Bankrupcy, or otherwise, that it should be deli∣vered to the Plaintiff.

Sir Ralph Bovyes Case.

IN an Ejectment upon a Tryal at Bar, the Case appeared to be this. Sir William Drake was seized in Fee of the Lands in que∣stion, and 19 Car. 1. infeoffed Sir William Spring, and five others, to such uses as he should declare by his Will in Writing, or by his Deed subscribed by three Witnesses. In August 20 Car. 1. by his Deed, ut supra, he limits the use of the said Lands to his Brother Francis Drake for 90 years, and declares. That the Feoffees should be seized to their own use, in Trust for the said Francis Drake and his Heirs, with a power to Francis Drake to alter and limit the Trust as he should think fit.

In the same Month there is a Treaty of Marriage between F.D. and the Daughter of Sir William Spring; and it was agreed by cer∣tain Articles between F.D. and Sir W. S. &c. reciting that he should receive 2500 l with his intended Wife, (which Money was proved to be paid,) that F. D. should convey the Lands in question to

himself and his Wife, and the Heirs Males of their two Bodies, &c. for the Joynture of the Wife.

The Marriage afterwards in 20 Car. takes effect, and soon after the same year F.D. by Indenture between him Sir W.S. and another) reciting the Articles of Marriage, Assigns his Term of 90 years, to Sir W. S. and the other in Trust to himself for Life, the re∣mainder to his Wife for Life, and after to the Heirs Males of their two Bodies; and by the same Deed limits the Trust, of the Inheritance of the Lands in the same manner.

Afterwards in 23 Car. 1. he in consideration of 6000 l (proved to be paid) Grants out of the said Lands a Rent of 400 l per an∣num, to Sir Ralph Bovy and his Heirs, with power to enter into the Land, in case the Rent was not paid, and to retain it until satisfaction.

Afterwards F. D. and his Wife dye, the Rent was Arrear. Sir R. Bovy enters, Sir Will. Spring, and the other Trustees Assign the term of 90 years, to Sir Will. Drake, Heir Male of F.D. and his Wife the Lessor of the Plaintiff. In this case, these Points were agreed by the Court.

First, That when Sir W. D. enfeoffed divers to such Uses as he should declare by his Will or Writing; that if he had in pursuance of that Feoffment limited the Uses by his Will, that the Will had been but Declaratory, tho' if he had made a Feoffment to the Use of his Will it had been otherwise, according to Sir Ed. Cleeres Case, 6 Co. And Hale said, my Lord Co. made a Feoffment, (provided that he might dispose by his Will) to the use of the Feoffee and his Heirs; and resolved in that case he might declare the Use by his Will; which should arise out of the Feoffment.

Secondly, That this Settlement being in pursuance of Articles made precedent to the Marriage, had not the least colour of fraud, whereby a Purchaser might avoid it; and if there had been but a Verbal Agreement for such a Settlement, it would have served the turn. And the Court said, if there had been no precedent Agree∣ment, so that it had been a voluntary Conveyance, tho' every such an one carries an Evidence of fraud; yet is not upon that account, only always to be reckoned fraudulent, or to be avoided by a Purchaser upon a valuable Consideration.

Thirdly, Whereas it was objected, That the Trust of the Term which was but a Chattel could not be Entailed, and therefore the Term was liable to the Rent notwithstanding the Assignment of it, and limiting the Trust as before.

It was answered, and resolved by the Court; that if it had béen a Term in Gross in F. D. the Trust of it could have been no more Entailed than the Term it self, but F. D. having the Term in Point of Interest, and at the same, the Trust of the Inheritance, might Entail the Trust of the Term, to wait upon the Inheritance;

and that the Chancery does every day allow, which they should take notice of.

But then it was objected, that he ought to have limited the Trust of the Inheritance, and of the Term both together; but F. D. by a distinct Clause in the Deed limits the Trust of the Term which divides it, and makes it independent upon the Inheritance, the Trust of which he limits by another Clause.

To that it was said by the Court, that tho' the Limitations were by several Clauses, yet all must be taken as one entire Con∣veyance. And Hale said that in 1646, a Lease for years was assigned, and the Trust of it Entailed, and two days after the Trust of the Inheritance Entailed in the same manner; and it was held by the best Counsel then in England, that tho' this were done by several Deeds, and at several times; yet being in pursu∣ance of one Agreement, that all was to be taken as one entire Act, according to the Case of 17 Jac. where a Fine was levied to Lessee for years, with an intent that he should suffer a Recovery, which was had the Term following, and resolved that his Term was not drowned. The Jury hearing the Opinion of the Court found for the Plaintiff for all, save a 12th part, for so much was drowned and surrendred by the Assignment of F. D. to Sir W. S. one of the six Joynt-tenants of the Reversion.

Wood versus Coat.

AN Action for words, That the Defendant being indicted of a forcible Entry at the Sessions, and the Plaintiff produced as a Witness for the King, and Swore nothing but what was true; the Defendant after habens colloquium of the said Oath said, The Plaintiff took a false Oath against me at the Sessions innuendo, the said Oath, &c.

After Verdict for the Plaintiff it was moved, That the Action did not lye, for the Defendant might mean an Extrajudicial Oath. In Pritchards Case, 2 Rolls, where one said of him, He took a false Oath against me at the Assizes. It was held, that the Action did not lye. Sed non allocatur, for in that case there was no colloqui∣um laid, which is alledged in this case, and shews to what the words spoken did relate.

Bradnox Case.

A Habeas Corpus was brought to remove the Body of Broad∣nox, who was taken by Process upon a Plaint exhibited in the Court of the Sheriffs in London, and it was returned, That time out of mind the Mayor Aldermen and Common Council, of the City, have had the Government and Regulation of Trade within

the City, and power to make By laws concerning the same; and that they had made a By-law, that there should be but 420 Carrs allowed to work within the City, all which should be Licensed by the President of Christs Church Hospital, and that there should be paid for the License of every Carr 1 l Fine. and 17 s per annum to the said President, to be employed for the use of the Poor within the Hospital; and that none should use a Carr without such License, under a certain penalty to be recovered, &c. Provided, That all persons may send their own Carrs to the Wharfs, &c. and carry Goods in their own Carrs from Wharfs, except such as shall be Traders or Retailers in Fuel.

That B. without such License wrought with a Carr pro lucro suo proprio, and for the penalty forfeited thereupon, a Plaint was le∣vied against him, &c.

It was prayed, that there might be no Procedendo in this Case, for tho' the By law should be admitted to be good, having a Cu∣stom to warrant it, as was ajudged in this Court, 19 Car. nunc, between Player and Jenkins; yet it appears that the Plaint is in∣sufficient, for in that, no Custom is alledged; and in 1 Rolls 364. such a By-law to limit the number of Carrs was held void; for there no Custom is alledged to ground it upon, and then a By-law cannot restrain Trade.

Again, 'tis unreasonable, that such as Trade in Fuel should not be permitted to bring home the Wood, which they buy in the Country in their own Carts, or to carry it out to their Customers, for tho' they might limit the number of Carmen, which in too great a multitude would be a Nusans, and infest the Streets; yet they cannot restrain a Man from using his own Carrs, to carry his own Commodities.

As to the First, The Court were of Opinion, that it was not necessary to mention the Custom in the Plaint, for 'tis Lex loci, and they take notice of their own Customs in their own Courts; As in Norwich the Custom is, that in Debt upon a Specialty the Debtor fatetur Scriptum, sed petit quod inquiratur de debito, and no Custom is set forth in the Record to warrant that. But here in the Habeas Corpus they have returned the Custom, which shews they had good cause to proceed upon their Plaint; for it hath béen often resolved, that Custom may create a Monopoly, as the case in the Register is; a Custom was, that none should exercise the Trade of a Dier in Rippon, without the Archbishop of Yorks License.

As to the Second the Court doubted, whether this By-law could be adjudged reasonable or good, because it would restrain the Woodmongers from bringing their Wood, &c. home in their own Carrs, so that tho' they brought it in the Country Carts as far as the Liberties of the City; they must then unload and put it in City Carrs, which would be extreamly inconvenient, and so it

would be if they should send City Carrs to fetch it; and tho' it might be reasonable to prohibit them carrying their Commodities out in their own Carrs, that they might not have so great an oppor∣tunity to cheat in their Measures; yet there could be no Colour to restrain them from bringing them in. Et Adjornatur.

Cuts versus Pickering.

UPon a Trial at Bar, one Baker (who had been Solicitor for Pickering) was produced as a Witness concerning the Razure of a Clause in a Will, supposed to be done by Pic∣kering.

The Court were moved, Whether he could be Examined touch∣ing this, because having been retained his Solicitor, he should by reason of that be obliged to keep his Secrets? But it appearing that B. had made this Discovery to him, of which he was now about to give Evidencee, before such time as he had Retained him, the Court were of Opinion that he might be Sworn. Other∣wise, if he had been retained his Solicitor before: The same Law of an Attorney or Counsel.

Sir Samuel Jones versus the Countess of Manchester.

IN an Ejectment upon a Trial at the Bar, the Evidences which (as the Plaintiff pretended) would have made out his Title, and would have avoided the Settlement in Joynture, which the Countess of Manchester claimed, were locked up in a Box, which was in the Custody of a Stranger, who before the Trial delivered the Key to the Earl of Bedford, Brother to the Countess of Man∣chester, and Trustee for her; who being present in Court, and requested to deliver the Key, that the Box might be opened, which was brought into Court: He said, (being a Trustee in the behalf of his Sister) He conceived, he was not obliged to shew forth any Writings that might impeach her Estate; and if he should, it would be a breach of the Trust reposed in him, which he held sacred and inviolable.

The Court told him, That they could not compel him to deliver the Key: But Hales said, It were more advisable for him to do it. For he held, tho' it is against the Duty of a Counsellor or Soli∣citor, &c. to discover the Evidence, which he which retains him acquaints him with; yet a Trustee may and ought to produce Writings, &c. But they could not Rule him to do it here; and the Earl declaring his Resolution not to do it, the Plaintiffs Counsel desired leave of the Court to break open the Box.

The Court said, that they would make no Order in it, nor would determine how far the Title to the Writings drew in the property of the Box; or whether the delivering the Key to the E. did not amount to a Pledge of the Box.

Serjeant Maynard said, It was the course of the Chancery, when a Bill was Exhibited against a Joyntress, to discover Writings, not to compel her to do it till such time as the Plaintiff agrees to confirm her Joynture. And he knew a Bill of Discovery brought against a Purchasor upon a valuable Consideration; and the Court would not compel him to Answer, tho' it was proved there was a Deed and a real Settlement.

Vpon opening the Evidence in the Case at Bar, these Points were stirred and Resolved by the Court:

That where a man makes a Feoffment, &c. to Uses, with power of Revocation, when he hath executed that Power, he cannot limit New Uses; but if it had been with a Power to revoke and limit New, then he might revoke and limit New, with a power of Revo∣cation annexed to those New; which if he doth afterwards revoke, he may again limit New Uses according to the first Power, and so in infinitum: But always the New Uses must correspond to those Circumstances, &c. which the first Power appoints, for that is the Foundation, 2 Rolls 262. Beckett's Case.

The Plaintiff being at a loss for his Writings, was Nonsuit.

Seaman versus Dee.

AN Indebitat' Assumpsit, as Executor of S. was brought against the Defendant by the Plaintiff, as an Attorney of this Court by Original.

The Defendant pleads four Judgments against him; One in an Action of Debt, (upon which the Question was) for Money borrowed by the Testator upon Interest, which Debt with the Interest, at the time of the Action brought, amounted to such a Sum, which was recovered against him: And pleads three Judgments besides, ultra quae he had not to satisfie.

The Plaintiff Demurs, and after being divers times spoken to, the Court Resolved for the Plaintiff.

First, For that Hale said, No Action of Debt lies for the Interest of Money, tho' he which borrows it Promises to pay after the rate of 6 l per Cent. for it; but it is to be recovered by Assumpsit in Damages. So where by Deed the party Covenants or Binds himself to pay the Principal with Interest, the Interest is not to be included with the Principal in an Action of Debt, but shall be turned into Damages, which the Jury is to measure to what the Interest amounts to, which is allowed to be done; tho' indeed the Statutes (which permit the taking of Interest) say,

That Usury is damned, and forbidden by the Law of God. And tho' it was Objected, That the Judgment is but Erroneous, and the Executor liable while Reversed; and it cannot be said, it was the Executor's fault to suffer it: For an Executor may plead a Judg∣ment against him in Debt upon a simple Contract; tho' it could not have been recovered if he had pleaded to the Action, or without his voluntary Consent.

To that Hale said, That Debt upon a Simple Contract lies against an Executor, if he please; nay, it hath been Adjudged, that an Executor may retain for a Debt but to him from the Testator, upon a Simple Contract: But in this Case no Action lies by the Law, nor any admission of the Executor can make it good.

Secondly, It appears, that part of the Interest accrued after the Testator's death, which is the Executors proper Debt, being his own default to suffer the Interest to run on: Then the Action being brought, both for that which is due in the Testator's time, and for that which grew due since, is manifestly Erroneous; and there is nothing in the Defendants Plea to take away the Intendment, that he had Assets to satisfie at the Testator's death.

To the Objection, That the Plaintiff once had abated his Writ; for that he declares by Priviledge, as an Attorney of the Court.

It was Answered, That the alledging of his Profession and Priviledge in the Declaration, was Surplusage and an imperti∣nent Flourish, and that being rejected the Declaration is sufficient upon the Writ; and an Attorney is at election to Sue, either by Original, or by Priviledge. Wherefore the Rule was, that the Plaintiff should have his Judgment.

The Lady Anne Fry's Case.

IN an Ejectment by Williams, Lessee of George Porter Esquire, against the Lady Anne Fry. The Case appeared to be this, upon a Special Verdict.

That Mountjoy, Earl of Newport was seised of an House called Newport-House, in the County of Middlesex, and had three Sons, who are yet living, and had two Daughters. Isabel mar∣ried to the Earl of Banbury, by whom she had Issue Anne the Defendant; and Anne married to Porter, by whom she had Issue George Porter Lessor of the Plaintiff, and made his Will in this manner:

I give and bequeath to my Dear Wife, the Lady Anne, Countess of Newport, all that my House called Newport House, and all other my Lands, &c. in the County of Middlesex, for her Life; and after her Death I give and bequeath the Premisses to my Grandchild

Anne Knolles (viz. the Defendant) and the Heirs of her Body: Provided always, and upon Condition, that she Marries with the Consent of my said Wife, and the Earl of Warwick, and the Earl of Manchester, or the major part of them: And in case she Marries without such Consent, or happen to dye without Issue, then I give and bequeath it to George Porter, (viz. the Lessor of the Plain∣tiff.)

The Earl of Newport dies, and the Lady Anne Knolles being of the Age of 14 years, marries with Fry without the Consent of her Grandmother, or either of the Earls; and it was found, that she had no Notice of the Will until after the Marriage, and that George Porter at that time was of the Age of 8 years; and that after the Death of the Countess she Entred, and George Porter Entred upon her, and made the Lease to the Plain∣tiff.

This Case having been twice Argued at the Bar, (viz.) in Michaelmas Term, by Sir William Jones for the Plaintiff, and Winnington for the Defendant: And in Hillary Term last, by Finch, Attorney General, for the Plaintiff; and Sir Francis North, Solicitor General, for the Defendant.

It was this Term Resolved by the Court, (viz.) Hale, Twisden and Rainsford, (Moreton being absent) for the Plaintiff, upon these Reasons.

Rainsford. Here have been three Questions made.

First, Whether the words in the Will, whereby the marriage of the Defendant is restrained, make a Condition or Limitation: If a Condition, then none but the Heir can Enter for the Breach. But 'tis clear, that they must be taken as a Limitation, to support the intent of the Devisor, and to let in the Remainder which he limits over, 1 Rolls 411.

Secondly, Whether the Infancy of the Defendant shall excuse her in this Breach, and clearly it cannot: For a Condition in Deed obliges Infants as much as others, 8 Co. 42. Whittingham's Case, the difference between Conditions in Fact and Conditions in Law. Especially in this Case, the nature of the Condition shewing it to be therefore imposed upon her, because she was an In∣fant.

Thirdly, (and the main Point of the Case,) Whether the want of Notice shall save the Forfeiture of the Estate? As to that, Let the Rules of Law concerning Notice be considered.

First, I take a difference where the Devisee, who is to perform the Condition, is Heir at Law; and where a Stranger. The Heir must have Notice, because he having a Title by Discent, need not take notice of any Will, unless it be signified to him. And so is Fraunce's Case, 8 Co. Where the Heir was Devisee for 60 years, upon Condition not to disturb the Executor in removing the

Goods; and Resolved that he should not lose his Estate upon a Disturbance, before he had Notice of the Will. But where the Devisee is not Heir, (as in this Case) he must inform himself of the Estate devised to him, and upon what terms.

Another Rule is, When one of the Parties is more privy than the other, Notice must be given; but where the Privity is equal, Notice must be taken by the party concerned. A Bargainee shall not Enter for a Condition broken, before Notice, for the Bargain and Sale lies in his Cognizance, and not the Lessees. So if a Lease be made to commence after the end of the former; if the first be surrendred, the Lessor shall not Enter for a Condition broken for Non payment of Rent, until Notice given of the Surrender, 3 Leon. 95. And therefore there shall be no Lapse to the Ordinary upon a Resignation, without Notice. If a man makes a Feoffment, upon Condition to Enter upon payment of such a Sum at a place certain, he must give Notice to the Feoffee when he will tender the Money, Co. Lir. 211. a. Dyer 354. And upon this Reason is Molineux's Case, 2 Cro. 144. where a Devise was, that his Heir should pay such Rents, and if he made default, then his Executors should have the Lands, paying the said Rents; and if they failed of Payment, then he devised the Land to his younger Children, to whom the Rents were to be paid. It was Resolved, Non-payment by the Executors should be no Breach, until they had Notice that the Heir had failed, which was a thing that the younger Children must be privy to. But in 22 E. 4. 27, 28. Te∣nant for Life Lets for years, and dies; the Lessee must remove in convenient time, to be reckoned from the death of the Tenant, whether he had Notice of it or no: For he in Reversion is presumed to be no more privy to it than himself. So Gymlett and Sands's Case. 3 Cro. 391. and 1 Rolls 856. where Baron and Feme were Tenants for Life, Remainder to the Son in tail, Remainder to the right Heirs of the Baron; the Baron makes a Feoffment with Warranty and dies, then the Feme and Son joyn in a Feoffment; this is a Forfei∣ture of the Estate of F. tho' she had no Notice of the Feoffment or Warranty, whereby the Right of the Son was bound. So Spring and Caesar's Case. 1 Rolls 469. A. and B. joyn in a Fine, to the use of A. in Fee, if B. doth not pay 10 l to A. before Michaelmas; and if he doth, then to the use of A. for Life, Remainder to B. B. dies before Michaelmas, the Heir of B. is bound to pay the 10 l without any Notice given by A. The Reason given (which comes home to our Case) is, For that none is bound to give Notice, and then it must be taken; tho' indeed a second be added, For that B. (from whom his Heir derives) had Notice. The Mayor and Comminalty of London aganst Atford, 1 Cro. where a Devise was to six Persons, to pay certain Sums for the Maintenance of an Almshouse, &c. and if through Obliviousness, or other

Cause, the Trusts were not performed, then to J. S. upon the same Condition; and if he failed by two Months, then to the Mayor and Comminalty of London upon the same Trusts. The six did not perform the Trusts, J.S. enters, J. N. enters upon him, and a Fine with Proclamations was levied, and Five years passed; and the better Opinion was, that the Mayor and Comminalty of Lon∣don were bound to pay the Money appointed by the Will, altho' they had no Notice that the six persons or J. S. had failed; tho' indeed the Case is adjudged against them, as being barred by the Fine and Non-claim. Sir Andrew Corbet's Case, 4 Co. is very strong to this purpose; where a Devise is to J. S. until he shall or may raise such a Sum out of the Profits of the Land: If a Stranger Enters after the death of the Devisor, tho' the Devisee had no Notice of the Will, yet the time shall run on, as much as if he had the Land in his own possession.

These Rules being applied to the present Case, it will appear no Notice is to be given:

First, The Defendant is as privy to the Will as any one else, (viz.) as George Porter, who is found also to be an Infant. It is not found whether there were any Executors, if it had, they were not concerned to give Notice, nor did it import the Heir: For he could have neither benefit or loss by the Condition.

The Two Cases which have been chiefly relyed upon for the Defendant, were, first France's Case, which differs, because it was in case of an Heir. Secondly, the Case of Sanders and Carwell, 8 Jac. in a private Report of Sir Geoffrey Palmer, the Attorney Ge∣neral, in which there is no clear account of the Case, and we cannot find the Roll: It was a Devise to his Wife for life, Remainder to his Daughter in tail, upon Condition to pay Money; and it was held that the Non-payment would be no breach unless she had Notice.

First, It was an Opinion only upon Evidence, and Lea and Chamberlain only in Court.

Secondly, For ought appears the Daughter might be Heir, and then 'tis good Law.

Thirdly, It appears there was a foul Concealment of the Will for Four years time; within which time (for ought appears) the Condition was to have been performed.

Twisden was of the same Opinion; but I omit his Argument, because I could not hear him perfectly.

Hale was of the same Opinion. As to the first Point, I shall discharge the Case of it, as not fit to be called in question: For without peradventure tho' the word Condition be used, yet limiting a Remainder over, makes it a Limitation; for so 'tis plain the Testator meant, and 'tis as much as if he had said, And if she Marries, &c. then to remain, without the word Condition.

And this hath received as many Resolutions as ever any Point did, (viz.) Wiseman and Baldwin's Case,* 1.1 18 Eliz. 1 Rolls 412. Hains worth and Pretty, 3 Cro 833. and 2 Cro. Pells and Browne's Case, with a great many more; and nothing but the Opinion in Mary Portington's Case, 10 Co. against it.

When Fynch, Attorney General, Argued this Case, he observed that Coke himself was of another Opinion in the 3d Report, in Wellock and Hammond's Case, cited in Boraston's Case: For tho' there 'tis the word Paying only, which is adjudged a Limitation; yet Coke saith, the Quaere in Dyer 317. is upon that well Resolved, and the Case in Dyer is upon the word Condition expresly.

Then to proceed to the other Matters. Here is an Estate Tail devised to the Defendant, subject to Two Limitations, the one of Law, (viz.) Dying without Issue; the other express and in Fact, (viz) Marrying without the consent, &c. and both are coupled together, so that whenever she Marries without Consent, &c. her Estate determines and is transferred to him in Remainder, without either Entry or Claim. 'Tis all one as if the Estate had been devised to her for Life, and if she Marries, then to remain, which had been but an Estate quamdiu sola vixerit: And it is to be observed, that if her Marriage here be no breach of the Conditional Limitation (for so 'tis properly called) because she had no Notice, then it can never be broken: So that the Question must be, Whe∣ther such a Marriage shall discharge the Estate of it, and make it become absolute.

'Tis true, where the Condition requires such an Act to be done, as may be done after Notice, in hath been questioned, whether the Law shall not protract the Time limited for performance, until Notice be had, 1 Cro. Alford's Case, which was a Condition for Payment of Money: But this is a thing of that nature, that being done, no subsequent Notice can ever retrieve.

Then 'tis to Enquire, How far the want of Notice will excuse? It must be considered, that 'tis a Will made by a person now dead, who can give no Notice, neither can any come to the knowledge of it without Enquiry, and one hath the same means to obtain it with another; and the person who would take advan∣tage of it, must make the best Enquiry he can. If a Devise were made to the Defendant, it was her Concern to Enquire upon what terms; until then how can it be ascertained, whether she will take it? And so it was Porter's Business to Enquire; no difference between them in this respect. So that upon these Five Ac∣counts, it will appear, that no Notice is requisite to be given in this Case:

First, Because the Testator hath not appointed any Notice to be given, than he which was the Disposer might give upon what terms he pleased; and this Matter of Notice shall not be added, unless it were in a Case wherein the Law would very strongly require it.

Secondly, Because there is no Person who can reasonably be engaged to give Notice (viz.) not the Heir, for he is Disinherited; not the Executors, for they are not concerned in the Freehold; nor the Trustees, for they have but their labour for their pains; nor Porter, for he is no more bound to give than she to take No∣tice?

Thirdly, Because each Party have the same means of Inform∣ing themselves of the Will, (i.e.) by Enquiry.

Fourthly, It more imported the Defendant to know it, as relating to her own Interest; the Will which gives the Estate, gives it upon this Conditional Limitation. Corbet's Case, 4 Co. comes very close; where, if the Devisee stays while the time wherein the Money might be raised is elapsed, he shall never raise it after. Suppose a man dies possessed of a Term upon which a great Rent is reserved; shall the Executor, after that he hath proved the Will throw up the Term, as pretending not to have known of it? An Estate is devised to one durante Viduitate; shall she Marry, and because she had do Notice of the Will, hold the Estate abso∣lutely for her Life? There is the same Reason in this Case; for this Proviso is a part of the Limitation of the Estate it self. No man is presumed to be ignorant of his own Interest; and as he must take Notice to acquire, so of the manner of the Estate he gains. He that gave it thus, was not obliged to do so much.

Fifthly, It was not impossible for the Defendant to have made Enquiry, and she must not take advantage of her Latches. A Bond with Condition to pay 50 l when the Obligee shall marry the Obligor's Kinswoman; in Debt upon this, it was Resolved, that the Obligee was not bound to give Notice of the Marriage, tho' it lay in his own privity; because the Obligor might have known it by other means, Hill. 1650. Between Try and . . . . Rot. 1081. B. R. It was proper for the Defendant to have Enquired, whether her Grandfather gave her any thing: And so it was for him that should marry her.* 1.2 Harwood's Case Adjudged here (Hill. ult.) was upon this Reason: He married a City Orphan in Kent, and was fined by the Court of Orphans, because he had not first applied himself to them for their Licence, &c. according to the Custom of the City: And the Fine was Resolved here to be well imposed, tho' he had no Notice that she whom he married was an Orphan; because it was his business to enquire of the Condition of her whom he will make his Wife.

Then the next thing to be considered is the Infancy of the Defen∣dant, and that is nothing in this Case. Porter who was the pro∣bablest person to give notice is found to be an Infant too. Condi∣tions in Fact bind Infants. Again, the Condition here relates to an Act, which she is capable of doing. The Statute of Merton which Enacts, Non currant usurae, &c. whereby Infants are exempted from Penalties; yet in another Chapter gives the Forfeiture of the said double value to the Lord where his Ward Marries without his consent. 'Tis a restraint laid upon her in a matter proper for her Condition, and with respect to her Condition, that be∣ing and Infant, she might advise with her Friends about her Marriage. The Cases which have been objected do not come to this Case, as the Opinion in Sanders and Carwells Case, which might be good Law, if it could be known what that case was, for the words might either explicitly or implicitly require notice, as if they were, if he refused to pay, &c. or it may be no time might be set for pay∣ment; for in Molineux Case, there Rents were granted, and after a Devise for the payment of them which naturally lie in de∣mand.

Secondly, There it concerned the younger Children to give notice; for the Rents were not only to be paid to them, but upon failer of payment the Land was Devised to them; So that was a Con∣currence of concern in them, as to the performance of the Condition, and the Estate they should acquire by the Breach. Whereas the Plaintiff in this Case, is not concerned in the per∣formance of the Condition.

Thirdly, The penning of the Condition were quite differs; for 'tis upon default of payment, which implies notice must be first had. In Frances Case, there would have been no need of no∣tice, if the Devise had not béen to the Heir, which is the only thing wherein it differs materially from this Case. In Alfords Case, the debate was occasioned by the special penning; for it was thus, that if thorough Obliviousness, the Trusts should not happen to be performed. Now there could be no Oblivion of that they never knew; therefore there is some Opinion there, that the Mayor and Citizens of L. ought to have had a precedent notice; yet the Judgment is contrary, for they could not have been bar∣red by the Fine and Non-claim, if notice had been necessary to the Commencement of their Title; and 'tis not found, whether those to whom the Estate was devised, before had notice; so that this cause proves rather, that there needs no notice in this case, than otherwise. Wherefore the Plaintiff must have his Judgment.

When my Lord Chief Justice had concluded. Rainsford said, he had spoken with Justice Moreton, who declared to him, that he was of the same Opinion.

Fitzgerald versus Marshall.

ERror of a Judgment given in the Kings Bench in Ireland, in affirmance of a Judgment removed thither by Error out of the Common Pleas in Ireland.

By the Record it appeared, that the Writ of Error to the Common Bench was directed Rob. Booth, Militi & Socijs suis, quia in Recordo & processu ac in redditione Judicij loquelae quae suit co∣ram vobis & Socijs vestris. And the Judgment certified appeared to be in an Action, commenced in the time of Sir. R. Smith who died, and Sir R. Booth made Chief Justice in his place before Judgment given. And the Court here were of Opinion, that the Record was not well removed into the Kings Bench there, by that Writ, which commanded them to remove Recordum loquelae coram R. Booth; whereas the loquela commenced before R. Smith, and the Titling of the Record is in such case placita coram R. Smith, &c. tho' some of the Continuances might be entred coram R. Booth, and the Judgment given in his time, and for this Cause, the Judg∣ment given in affirmance in the Kings Bench there was reversed.

Sir Samuel Sterling versus Turner.

ERror of a Judgment in the Common Bench, in an Action upon the Case, where the Plaintiff declared upon the Custom of London, of Electing of two Men in the Office of Bridge-ma∣sters, every year by the Citizens assembled in a Common Hall; and a Custom that if two be Competitors, he that is chosen by the greatest number of Votes is duely Elected, and that if one in such case desire the Polls to be numbred, the Mayor ought to grant the Poll. And shews that there was a Common Hall assem∣bled, the 18 of October 22. Regis nunc. Sterling being Mayor, and that then the Plaintiff and one Allet stood as Competitors to be chosen to that Office, and avers, that he had the greatest number of Voices, and that he affirmed then and there, that he had the greatest number, which the other denying, he requested the Mayor, that according to the Custom they might go to the Poll; and the Defendant not minding the Execution of his Office, but violating the Law and Custom of the City, then and there did maliciously refuse the numbering of the Polls, but immediately made Procla∣mation, and dismissed the Court, by which he lost the Fees and Pro∣fits of the Place, which he averred belonged unto it.

Vpon Not guilty pleaded, and Verdict for the Plaintiff after it had béen several times argued in Arrest of Judgment, that this Action did not lie, it was adjudged for the Plaintiff, by Tyrrel, Archer and Wyld: Vaughan dissenting. And now Error was brought

and assigned in the matter of Law, and argued for that it was incertain, whether the Plaintiff should have been Elected; and that he could not bring an Action for a possibility of damage, and this was no more, not being decided who had the greatest number of Voices.

But the Court were clear of Opinion, that the Judgment should be affirmed; for the Defendant deprived the Plaintiff of the means, whereby it should appear, whether he had the greatest number of Electors or no. And Hale said, it was a very good President, and so it was adjudged by both Courts.

One D. of Bedfordshire Esquire, was indicted of High Treason, for coyning a great number of counterfeit pieces of Guinnies of Gold 23 Regis nunc, and being Arraigned at the Bar, he pleaded the Kings Pardon; which was of all Treasons, and of this in particluar, but did not mention that he stood indicted.

Twisden said, that my Lord Keeling was of Opinion, that such a Pardon was not good. But Hale said, it might be well enough in this case, but in case of Murther it is necessary to recite it, because of the Statute of 27 E. 3. 2. (vid. 10 E. 3. 2. 14 E. 3. 15.) and so it was allowed.

The Lady Chesters Case.

A Prohibition was prayed to the Prerogative Court of Canter∣bury. Sir Henry Wood having devised the Guardianship of his Daughter by his Will in VVriting, according to the Act of this King, to the Lady Chester his Sister, the Dutchess of Cleaveland, to whose Son this Daughter being about 8 years old was contra∣cted, pretending that Sir Henry VVood by word revoked this dis∣position of the Guardianship. Sued in the Prerogative Court, to have this nuncupative Codicil proved; and the Court granted a Prohibition, for they are not to prove a VVill concerning the Guar∣dianship of a Child, which is a thing conusable here, and to be judged whether it be devised pursuant to the Statute. And Hale said, that they may prove a VVill which contains Goods and Lands, tho' formerly a Prohibition used to go quoad the Lands. Vid. 1 Cro. Netter and Percivalls Case.

Prior versus . . . .

ERror was brought of a Judgment in this Court into the Exche∣quer Chamber, and Error in fact was then assigned; and the Court being there of Opinion, that Error in fact could not be as∣signed there, they affirmed the Judgment; upon which the Record with the Affirmation was remitted hither, and a Writ of Error was

brought here, coram vobis residen' (as is usual for Error in fact.) It was pray'd, that upon putting in not Bail, this new Writ of Error might be a Supersedeas to the Execution. But the Court held, that this Writ was not to be allowed in this case, for the Judgment given in this Court, being affirmed in the Exchequer Chamber, transit in rem judicatam there, and a Writ of Error cannot be brought here upon a Judgment there; and 'tis always the course in Writs of Error to recite all the proceedings that have been in the matter; as if a Judgment be removed hither, by Error out of the Common Pleas, and here affirmed, and then brought into Parliament, the last Writ must recite both the Judgment in Communi Banco, and the Affirmation here. And whereas this Writ goes by the Judgment into the Exchequer Chamber, and mentions only the Judgment here, it must therefore be quashed: And it is the course, if a Writ of Error be brought here, upon Error in fact of a Judgment here, that the Writ should be allowed in Court. And the Court said, they would allow none in this Case.

Throwers Case.

HE was indicted at the Sessions of the Peace at Ipswich for Stopping communem viam pedestrem ad Ecclesiam de Wit∣by. It was removed hither by Certiorari, and the Court were moved to quash it, for it was objected, That an Indictent would not lye for a Nusans in a Church-path; but Suit might be in the Ecclesiastical Court. Besides the Damage is private, and con∣cerns only the Parishioners. Where there is a foot way to a Com∣mon, every Commoner may bring his Action if it be stoped, but in such case there can be no Indictment.

Hale said, if this were alledged to be communis via pedestris ad Ecclesiam pro parochianis, the Indictment would not be good, for then the Nusans would extend no further than the Parishioners, for which they have their particular Suits; but for ought appears this is a common foot way, and the Church is only the Terminus ad quem, and it may lead further; the Church being expressed only to ascertain it, and 'tis laid ad commune nocumentum; wherefore the Rule was, that he should Plead to it.

The Lady Prettymans Case.

A Judgment was had in a Scire facias brought against her up∣on a former Judgment, upon two Nihils returned. And the Court was moved to set it aside, for that it was alledged; that before the Scire facias brought she was married to Sir John Pretty∣man, and that it was brought against her as sole, by contrivance between the Plaintiff and her Husband to oppress her, and lay her

up in Prison; and it was shewn that the Plaintiff knew of the Marriage, for he (being an Attorney) had prosecuted an other Action before the return of the Scire facias against her and her Husband, and that she could not help her self by Error, or Audita Querela, because her Husband would Release.

The Court said, they might set aside the Judgment, for the mis∣demeanour of the Plaintiff; but because they were informed, that this Marriage was under debate in the Ecclesiastical Court, and near to a Sentence, they suspended making any Rule in this, while that was determined.

Twisden said, he had a Case from my Lord Keeling, where a Feme Covert Infant levied a Fine, and her Friends got a VVrit of Error in her Husbands and her name, that the Court would not suffer the Husband to Release. But Hale said, he could not see how that could be avoided; but he had known, that in such case the Court would not permit the Husband to disavow the Guardian, which they admitted for the VVife.

Hows Case.

HE was indicted of an Assault, Battery and VVounding of Thomas Masters Esquire, and Found Guilty at the Assizes in Gloucestershire. Now the Attorney General moved the Court to set a Fine, and such an one as might be exemplary, according to the demerit of the Fact; for he shewed, that a great part of the Gentry of Gloucester, amongst which were How and Masters, being as∣sembled at Circencester, about the Election of a Burgess for that Town; How, without any provocation, struck Masters on the Cheek with the end of his Cane, which had an Iron pike at it; and that if Masters had not governed himself with much moderation and prudence, it had in all probability engaged the whole Assembly in a dangerous quarrel, they being both Men of great Estates and Quality in the Country. And the Attorney said, there was nothing more necessary than that somewhat of a limited Starchamber should be exercised in this Court, for the due punishment of such enor∣mous Crimes as these.

Hale said, that they were much discouraged from setting Fines, for the new Act binds them to estreat them into the Exchequer; and then it was well known whether they went, (meaning to such as farmed them from the King by Patent.) The Attorney replied, that the legality of such Patents was to be questioned; and that one which was granted to the Earl of Berkshire,* 1.3 was now like to be resumed, and it was fit it should, seeing it was like to prove an obstruction to the publick Iustice.

Then it was doubted, whether the Fine could be set, How not being present; but held it might, but the Course is not to hear any thing moved in mitigation of the Fine, unless the Party be pre∣sent, and he was fined 500 Marks.

Ward versus Forth.

IN Debt upon a Bond, the Defendant pleads, that he delivered the Deed as an Escrow to J. S. &c. & hoc paratus est verifi∣care.

To this it was demurred. For that he ought to have conclu∣ded, & issint ninet son fait, for this matter amounts to a Special Non est factum; and the Plaintiff cannot reply, that he delivered it as his Deed absque hoc, that he delivered it as an Escrow, and so said the Court.

Shermans Case.

BY Certiorari, an Order for the keeping of a Bastard Child by the Justices of the Peace, in persuance of the Statute of 18 Eliz. was removed into this Court, which was excepted to.

First, For that they had appointed the Father to allow 4 s to the Midwife; whereas it did not appear, that the Parish had pro∣cured her, or that they were chargeable with it.

Secondly, For that they ordered 7 s a week, to be allowed for the Nursing Cloaths, &c. of the Child, until it should be able to get its living by working; which was said to be excessive in the Sum, and uncertain for the time, for it should have béen for so long time as it shall be chargeable to the Parish.

Hale said, that they could make no allowance to the Midwife, unless in discharge of the Parish.

Twisden said, that they could not order the 7 s a week to be paid, until it should be able to get its living, for perhaps the Fa∣ther would take it away and maintain it himself, which he may do if he please; but that the Order might be quashed without more delay, and the matter remanded to further Examination. Sher∣man consented to pay all the Arrears of the 7 s a week, and the Costs that had béen expended in Maintenance of this Order, or what more should be laid out, in case he should be again found the reputed Father of the Child, for he said it was imposed upon him by Combination, whereupon it was quashed.

Sir Ralph Bovy's Case.

AN Action was brought upon an Escape, for that he being Sheriff of Surry, voluntarily suffred J. S. whom he had in Execution, to escape.

He pleads, that be made fresh pursuit and took him again, and doth not Traverse the voluntary Escape, to which it was demurred. Et Adjornatur.

Anonymus.

A Scire facias against the Conusee of a Statute, who had ex∣tended, supposing that he was satisfied. He pleads, that before the Scire facias brought he had assigned over all his interest, and prays Iudgment of the Writ.

Hale said, that the VVrit was good, seeing he was a Party to the Record; the Plaintiff need not take notice of the Assignee unless he please, and if there be part of the Debt unsatisfied, that is to be tendred to the Conuzee.

In a VVrit of Disceit, to reverse a Fine of Land in antient Demesne; after Assignment the Conuzee shall be made party. So in a VVrit of Error, tho the Terretenant shall not be turned out of possession without a Scire facias.

Dionise versus Curtis.

TRover de duabus Centenis Plumbi urae, Anglicè two hundred weight of Lead Ore.

It was objected, that Centena signifies an hundred in a Coun∣ty, and 'tis uncertain here of what it should be understood; but the Court said it was good with the Anglicè, and to be un∣derstood by the subject matter. Trover de duobus ponderibus casei, Anglicè, two weigh of Cheese, hath been held good. So de duobus oneribus Cupri, Anglicè, two Horse loads of Copper.

Evans, &c.

IN an Action upon the Case, whereas he pretended Title to cer∣tain Goods in the Custody of one Susan Pricket, and claim∣ed them to be his own, intending to remove them; the Defen∣dant in Consideration, that he would suffer them to continue there, assumed to see them forth coming, and that they should not be imbezelled, but safely kept to the use of the Plaintiff, and shews that afterwards the Goods were Eloigned, &c.

Vpon Non Assumpsit and Verdict for the Plaintiff, it was mo∣ved to stay Judgment; that it doth not appear, that the property of these Goods was in the Plaintiff, for it is alledged only, that he pretended to them, and claimed them to be his own: Sed non Allocatur.

For the Declaration is full enough, at least must be intended he proved they were his own, or the Jury would not have found for him.

Anonymus.

IN Debt upon a Record in an inferiour Court, upon Nul Tiel Record pleaded, they shall certifie only tenorem Recordi, and grant Execution afterwards.

Hale said, that he had seen a Certiorari to certifie tenorem Recordi, upon a Tryal at Bar concerning the Toll of Uxbridge, the Town pretending to be incorporated, and to have a right to the Toll; and it was resolved, that no Bugh holder could be a Witness for the Town.

Notes

• * 1.1

  2 Leon. 51. Owen 412. 1 Leon. 383.
• * 1.2

  Ante.
• * 1.3

  7 Co. Penal Statutes.