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

Termino Sancti Hillarij, Anno 31 & 32 Car. II. In Banco Regis.

Anonymus.

IN Ejectment upon a Special Verdict the case was thus,

A Lease was made A. and B. for their Lives, Remainder to the first Son of A. &c. Remainder to the Heirs of A. B. conveys his part to A.

The question was, Whether the Contingent Remainder to the first Son were destroyed.

Holt argued that it was. For a Contingent Remainder must have some particular Estate of Freehold to support it, and by the Re∣lease of B. his Estate was gone; and there became an intire Fee in A. For by whotsoever means a Joynt tenant for Life conveys his Moiety to his Companion, it does not enure by Grant of the Estate, but by Release, as Eustace, and Scawens Case, 2 Cro. 696. A. and B. Joynt tenants for Life, A. Levy's a Fine to B. B. dies, there shall be no Occupancy of the Moiety of A. during the Life of A. Jones 55. and the Case of Lewis Bowels, 11 Co. is not to be objected, where an Estate for Life was made to B. and F. the Remainder to their first Son, that they should have in Tail, Re∣mainder to B. and F. in Tail, here, tho' an Estate in Tail is execu∣ted in B. and F. until a Son Born; yet after upon the Birth of the Son, the Contingent Remainder shall vest and split, and divide the former Estate;* 1.1 but here the Fee becomes executed by several Con∣veyances, but there the Estate Tail; was executed by the first Con∣veyance. And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture, and so the Plight and Condition of the Estate altered by matter subsequent, and by consequence the Contingent Remainder de∣stroyed.

The Court doubted, whether there were such alteration of the Estate, as to destroy the Remainder; for they said, to some pur∣poses the Fee was executed before the Release,* 1.2 for if the Joynt∣tenants had joyned in a Lease for years, an Action of Wast would he against the Lessee. Et Adjornatur.

Anonymus.

A Person who was committed to the Tower for Conspiring the death of the King, was brought up by Habeas Corpus, and prayed to have Bail taken, unless an Indictment were found against her this Term, according to the new Act of 31 Car. 2. for Habeas Corpus's.

The Court said, that they which would have the benefit of that Act, must pray it before the first week of the Term expires; but in regard it appeared, that she had prayed it before by her Coun∣sel, and her Habeas Corpus was taken out in time, the Court said, the benefit of the Act should be saved to her, for the prayer is not necessary to be made in person: But Mr. C. G. was refused the advantage, he having omitted to make the prayer during the first week, either in Person or by Counsel.

Sir Robert Peytons's Case.

HE was brought up by Habeas Corpus from the Tower, his Counsel pressed much to have the Return Filed, supposing that he would be then a Prisoner to the Court, and committed to the Marshalsey, but the Court ordered the Return to be Filed, and notwithstanding remanded him to the Tower, as they said they might do.

The King versus Plume.

ANte Hill. 29 & 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment, for using of the Trade of a Fruiterer, contra 5 Eliz. not having been bound an Apprentice.

Scroggs Chief Justice and Dolben inclined to the Opinion, that it was a Mystery within the Statute, there being great Art in chu∣sing the times to gather, and preserve their Fruit. And that the Cause deserved the more Consideration; for that the Fruiterers were an ancient Corporation in London, (viz.) From the time of E. 4. also a Barber, Upholster, and lately a Coachmaker, Ruled to be within the Act.

Jones and Pemberton, seemed to be of another Opinion, for it would be very inconvenient to make every one that sells Fruit by the penny within the Act, and majus & minus would make no odds; surely since the 5 of Eliz. there would have been some Prose∣cution by the Company of Fruiterers in this case, if it would have lain. Brewers and Bakers require Skill, and yet not within the Act. But the Court took time, to deliver their positive Opinions. Et Adjornatur.

Reve versus Cropley.

AN Indebitat' Assumpsit was brought for 20 l as Executor to William Burroughs, for so much of the said Williams Money had and received by the Defendant in his Life time; whereup∣on the Plaintiff had Iudgment by Nihil Dicit, and upon a Writ of Inquiry, (the Plaintiff not being provided to prove the Debt sup∣posing it to be confessed by the Judgment,) the Jury found but two pence Damages.

Ventris moved to set aside this Writ of Enquiry, for that the Plaintiff was not obliged in this Action to prove the Debt, at the executing of the Writ of Enquiry, no more than if he had brought an Action of Debt, 2 Cro. 220. In Trespass for taking of Goods, the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit; for said the Court, if he should fail thereof, it would be in destruction of the first Judgment. Vid. Yelv. 152,

Curia. This being in an Action upon the Case which lies in Dam∣ages, the Debt ought to have been proved, and so let it stand.

Note, If a Verdict be for 30 l and the Iudgment is quod recupe∣ret damna praedicta ad 32 l This surplus will do no hurt, because 'tis damna praedicta. Jones 171.

Cooke versus Fountain.

IN an Ejectment upon a Trial at the Bar, the Title of the Lessor of the Plaintiff was upon the Grant of a Rent, with power to enter for Non payment.

The Executor of the Grantor was produced as a Witness for the Defendant. And it was objected against him, that in the Grant of the Rent, the Grantor covenanted for himself and his Heirs to pay it, and that the Executor being obliged, was no competent Witness.

Against which it was much insisted upon on the other side, that this Covenant annexed to a real Estate would not bind the Executor, but only the Heir.

But the whole Court were against it. The Counsel for the Defen∣dant mentioned a Bill of Exceptions; and the Court doubted, whe∣ther it would lie in the Kings Bench, so they waved it, and shewed that the Executor had fully Administred the Inventory: But they gave a further charge on the Plaintiffs side, and so that Witness was set aside.

Notes

• * 1.1

  2 Co. 60.61.
• * 1.2

  Vid. 1 Inst. 184. a.