The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

DE Term. Sancti Hill. Anno 28 & 29 Car. II. in Communi Banco.

James versus Johnson.

IN Trespass, the Defendant justified by a Prescription to have Toll, and Issue being joyned thereupon, the Iury found a special Verdict, in which the Case upon the Plead∣ings was, viz. Before the dissolution of Priories, the Man∣nor now in the possession of the Defendant, was parcel of the Priory of B. which came to the Crown by the said dissolution; and the King made a Grant thereof to Sir Jervas Clifton, in Fee, together with the said Toll adeo plene as the Prior had it; and the Defendant having brought down a Title by seve∣ral mesne Assignments, claims by vertue of a Lease from Sir Jervas, for seven years then in being, alledging that the said Sir Jervas and all those whose Estate he had might take Toll; and whether this Pleading by a Que Estate to have Right of Toll was good in Law, the Iury doubted.

Baldwin Serjeant for the Plaintiff, argued that the Iustifica∣tion was not good, because there are two sorts of Toll, viz. Toll through and Toll traverse, and is in the Kings High Way, and the other in a Mans own Soil, and it doth not appear for which the Defendant hath justified. If it be for the first, then he ought to shew that he did make a Causeway, or some other thing that might be an advantage to the Passen∣gers, to entitle himself to a Prescription; but if it be for the other, then he must also shew it was for passing upon his Soil, which implies a Consideration, 22 Assize, Kelw. 148. Pl. Com. 236. Lord Berkley's Case. 1 Cro. 710. Smith versus Sheppard; by which Cases it appears that the justification ought to be certain.

Then as to the point in Question, he said, that Toll cannot be appurtenant to a Mannor, and so the Pleading by a Que estate is not good; but if that should be admitted, yet the Man∣nor being vested in the Crown by the dissolution, the Toll then became in gross, and could never after be united to the Mannor, or appurtenant thereunto.

But it was argued for the Defendant by Maynard Serjeant, and the whole Court were clear of Opinion, that the Issue was upon a particular point, and the Title was admitted, and that nothing remained in question but the Point in pleading. And as to what had been objected, That Toll cannot belong to a Mannor, 'tis quite otherwise; for an Advowson, a Rent, a Toll, or any Profit apprender may be appurtenant to it. Tis true a Man cannot prescribe by a Que Estate of a Rent, Advowson, Toll, &c. but he may of a Mannor, to which these are appendant; 'tis likewise true, that if the Defendant had said this was Toll for passing the Highway, he must shew some cause to entitle him∣self to the taking of it, as by doing something of publick ad∣vantage.

But this general way of pleading is the most usual, and so are the Presidents, and it ought to come on the other side, and to be alledged, that the Defendant prescribed for Toll in the High-way; and in this Case, though the Mannor came to the Crown, the Toll remained appurtenant still, and so it continu∣ed when it was granted out. The difference is between a thing which was originally a Flower of the Crown, and other things which are not, as Catalla Felonum, &c. if such come again to the King, they are merged in the Crown; but 'tis otherwise in cases of a Leet, Park, Warren, Toll, &c. which were first crea∣ted by the King, 9 Co. Abbot de Strata Marcella's Case. So that this Toll is not become in gross by the dissolution, where∣upon Iudgment was given for the Defendant.

Sir William Turner's Case.

DEbt qui tam &c. for 100 l. against Sir William Turner, being a Iustice of Peace in London, for denying his Warrant to suppress a seditious Conventicle of one Mr. Tur∣ner in New-street. This Cause was to be tried by Nisi prius this Term, before the Chief Iustice. And now the Plaintiff mo∣ved to amend one Word in the Declaration, wherein he was mistaken, for he had laid the Meeting to be at Turner's Man∣sion

House, and upon Enquiry he understood the place of Meeting was not at his Mansion House, but at a little di∣stance from it, and so prayed the word Mansion might be struck out.

But the Chief Iustice said, that after Issue joyned, and the Cause set down to be tried, and this being a penal Statute, no President could be shewn of an Amendment in such case, and therefore would not make this the first, and so Leave was given to the Plaintiff to discontinue upon payment of Costs.

Brown versus Johnson.

IN Accompt: The Plaintiff declares against the Defendant, for that upon the first of March 22 Car. 2. & abinde to the first of May 27 Car. 2. he was his Bayliff, and Receiver of 80 Piggs of Lead.

The Defendant pleads, that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead, & hoc paratus est verificare. To this the Plaintiff demurred, and assigned specially for cause, that the times from the first of March to the first of May, are made parcel of the Issue, which ought not to be, because the Plaintiff in his Declaration must alledge a time for Form sake, but the Defendant ought not to tye him up to such time alledged, for he might have said he was not Bay∣liff modo & forma.

And for this the Case of Lane and Alexander was cited, where the Defendant by Ejectment makes a Title by Copy of Court Roll, granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant, 1 Junii 43 Eliz. The Defendant maintains his Barr, and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy; and upon Demurrer it was adjudged, that the traversing of the day is matter of sub∣stance, which being made part of the Issue, is naught.

But on the other side it was objected, that time is material, and that in Actions of Accompt 'tis proper to make it parcel of the Issue; for a Man may be Bayliff for two, but not for three years, and a Release may be pleaded from such a time to such a time, Fitz. Accompt 30. Rast. Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2.

1. Then Exceptions were taken to the Plea, first, for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead; the Defendant pleads, and that he was not Re∣ceiver thereof, but doth not say of any part thereof; for which reason the Court held the Plea ill, because he might retain 79, and yet not 80 Piggs, but to plead generally ne unques Recep∣tor is well enough; though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead, he should have accompted, 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast. Entry 18, 19, 20.

2. The Defendant concludes & hoc paratus est verificare, where∣as it should be & de hoc ponit se super patriam; but the Court doubted of this, because it was not specially assigned.

3. The Plaintiff charged the Defendant as his Bayliff upon the first of March, and the Defendant pleads that he was not his Bayliff from the first of March, so he excludes that day; and this the Court held to be incurable, and likewise that the time ought not to be made parcel of the Issue, and so Iudgment was given quod computer.

Abraham versus Cunningham.

IN a special Verdict in Ejectment, the Case upon the Plead∣ings was, Viz. Sir David Cunningham being possessed of a Term for years, made his Will, and therein appointed his Son Sir David Cunningham to be his Executor, and dyed. Sir Da∣vid the Executor, in the year 1663. made his Will also, and therein appointed David Cunningham his Son, and two others to be his Executors, and dyed; those two Executors dye, and B. a Stranger takes out Administration, cum Testamento annexo, and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff, for which he had received a thousand Pounds: And in the year 1671. the surviving Executor of Sir David the Executor, made Oath in the Archbishops Court, that he never heard of his Testators Will 'till then, nor ever saw it before, and that he had not medled with the Estate, nor renoun∣ced the Executorship: Then a Citation goes to shew cause why the Administration should not be repealed, and Sentence was given that it should be revoked; upon which the Executor en∣ters, and the Lessor of the Plaintiff entred upon him.

This Case was argued by Saunders for the Plaintiff, and Levints for the Defendant. And first it was said in behalf of the Plaintiff, that the Authorities in the Books were strong on his side, that the first Administration was well granted; 'Tis true, if a Man make a Will, and Administration is granted, and that Will is afterwards proved, such Administration is void, as in Greysbrook and Foxes Case, Pl. Com.

But in this Case, after the death of Sir David Cunningham the Executor, his Testator is dead Intestate; for to make an Executor there must be first the naming of him; then there must be some concurring act of his own to declare his assent, that he will take onus executionis upon him, for no man can make another Executor against his will; so that if after the death of the first Executor, those other Executors appointed by him, had made such a Declaration, as this surviving Executor hath since done, their Testator had dyed Intestate, 7 E. 4. 12, 13.

The Executor is made by the Testator, and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate; so that 'tis plain there cannot be an Exe∣cutor and Administrator both together: If he who is made so taketh upon him long after the Will to be Executor, it shall make him such by relation from the time of the death of the Testator; but here is no Executor nor ever was: 'Tis true, that one was named, but as soon as he heard of the Will he renoun∣ced; and therefore there being no Executor in this Case, no∣thing now can hinder the Administration to be granted cum Testamento annexo.

If the Testator should dye indebted, or have Debts owing to him, and the Executor refuses Probate, and renounces his Ex∣ecutorship, Administration must be granted, for Lex fingit ubi subsistit Aequitas, and the Executor having a possibility to be such, and by his refusal becoming no Executor, why should the bare naming of him to be an Executor, have relation to make such Administration void? since 'tis not the Name, but the doing of the Office which makes him Executor, Dyer 372.

If all these Executors had dyed after Administration thus com∣mitted, it cannot be said that they ever were Executors.

There can be no inconvenience that this Administration should be good; for 'tis just that Creditors should have their Debts, and Purchasors should be secure in the things purchased.

If the Testator was indebted, an Action will lie against an Executor de son tort, for such Debt, which Executor is altogether as wrongfull as the Administrator, to whom Administraton is com∣mitted,

and the Will afterwards proved by the rightful Execu∣tor; and if such Executor of his own wrong be possessed of a term for years, and a Creditor recovers against him, that Cre∣cutor shall have the Term in satisfaction of his Debt; and by the same reason shall the Administrator here have a good title to this Term which he sold for the payment of a just Debt, and there is no authority for making such Administration void, unless it be where the Executor proves the Will, but never when he re∣nounceth.

But on the other side it was said, that an Executor of an Executor hath all the Interest which the first Executor had; so that being an Executor, the Administration ganted by the Ordi∣nary is void, and the renunciation afterwards shall never make it good; and this will appear by the different Interests which the Ordinary and the Executor have by Law.

1. The Ordinary originally had nothing to do with the Estate of the Intestate, for bona intestati capi solent in manus Regis. Afterwards two Statutes were made, which establish his pow∣er; the first was Westm. 1. cap. 19. and the other was 31 E. 3. c. 11. Yet no power was thereby given him to dispose of the Goods to his own use, or to the use of any other; he had only a proper∣ty secundum quid, and not an absolute and uncontroulable Right in the Estate.

2. But the Executor hath a Right and Interest given to him by Law, when a Will is made, and may release before probate; if he therefore hath an absolute Right, and the Ordinary hath only a qualified property, how can he grant the Administration of the Goods, which at the same time are lawfully vested in another? Suppose the Executor sells such Goods to one Man, and the Ad∣ministrator to another, the Sale of one of them must be void; and for the said Reasons, and by the constant course of the Law it must be the latter.

It hath been objected, that here was no Executor at all, on∣ly one named; or if it be admitted that there was an Execu∣tor, yet his refusal shall relate to the time of the Administra∣tion committed, and make that good which might not be so before.

But as to that, he said that here was an Executor appointed by the Will, who had an Interest, and Administration being granted to another, 'tis void ab initio, and what is once void cannot be made good by any subsequent act, 10 Co. 62. a.

Here was a want of power in him who did this Act; for the Or∣dinary could not grant Administration where there is an Execu∣tor, and therefore no relation shall be to make that good which was once void; but if it had béen only voidable it might have been otherwise.

A Relation may be to inable the Party to recover the Goods of the Intestate, and to punish Trespasses; as if a Man die posses∣sed of Goods, and a Stranger convert them, and afterwards Admi∣nistration is granted to S. this Administration shall relate to the time of the death of the Intestate, so that he may maintain Trover, before the Ordinary had committed it to him, but it will never aid the Acts of the Parties to avoid them by Relation; as if a Man makes a Feoffment to a Feme Covert, and afterwards devises the same Land, the Husband disagrées, this shall have relation between the Parties, so as the Husband shall not be charged in damages, but it shall not make the void Devise good, 3 Co. 28. b. Butler and Baker's Case.

So if a Man makes a Release, and afterwards get Letters of Administration, that shall not relate to make his Release good to barr him, neither shall his refusal of the Executorship do it, be∣cause at the time of the Release or the refusal there was not any right of Action in him; for that commences in the one Case after Administration, and in the other after the Probate of the Will.

Notwithstanding such refusal this Executor may afterwards administer at his pleasure, and intermeddle with the Goods of the Testator, and if the Administration should be good also, then they would have a power over the same Estate by two Titles at the same time, which cannot be.

The greatest Argument which can be brought against this is ab inconvenienti, because it cannot be safe to purchase under an Ad∣ministrator, since a Will may be concealed for a time, and af∣terwards the lawful Executor therein appointed may appear; but this is more proper for the Wisdom of a Parliament to redress than that the Law should be altered by a judicial determination of the Court, and therefore he prayed Iudgment for the Defendant.

The Court was of Opinion that the Ordinary cannot grant Administration where there is an Executor named in the Will, and therefore gave Iudgment for the Defendant against the Ven∣dée of this Term.

The Lord Townsend versus Dr. Hughes. In C. B.

THE Plaintiff brought an Action of Scandalum Magnatum for these Words spoken of him by the Defendant, viz. He is an unworthy Man and acts against Law and Reason: Vpon Not Guilty pleaded, the Case was tried, and the Iury gave the Plaintiff 4000 l. damages.

The Defendant before the Trial made all possible submission to my Lord; he denied the speaking the Words, and made Oath that he never spoke the same; after the Trial he likewise ad∣dressed to my Lord as before, making several Protestations of his Innocency: But having once in a Passion said, that he scorned to submit; My Lord for that Reason would not remit the Da∣mages; it was therefore moved for a new Tryal upon these Reasons.

1. Because the Witnesses, who proved the Words, were not Persons of Credit, and that at the time, when they were al∣ledged to be spoken, many Clergy-men were in Company with the Defendant and heard no such Words spoken.

2. It was sworn, that one of the Iury confessed, that they gave such great damages to the Plaintiff (not that he was dam∣nified so much) but that he might have the greater opportunity to shew himself noble in the remitting of them.

3. And which was the principal Reason, because the Damages were excessive.

The Court delivered their Opinions seriatim; and first,

The Chief Iustice North said, In Cases of Fines for criminal Matters a Man is to be fined by Magna Charta with a salvo con∣tenemento suo; and no Fine is to be imposed greater than he is able to pay; but in Civil Actions the Plaintiff is to recover by way of compensation for the damages he hath sustained, and the Iury are the proper Iudges thereof.

This is a Civil Action brought by the Plaintiff for Words spoken of him, which if they are in their own nature actionable, the Iury ought to consider the damage which the Party may sustain; but if a particular Averment of special damages makes them actionable, then the Iury are only to consider such damages as are already sustained, and not such as may happen in futuro, because for such the Plaintiff may have a new Action: He said that as a Iudge he could not tell what value to set upon the Ho∣nour

of the Plaintiff, the Iury have given 4000 l. and therefore he could neither lessen the Sum or grant a new Trial, especi∣ally since by the Law the Iury are Iudges of the damages; and it would be very inconvenient to examine upon what account they gave their Verdict; they having found the Defendant guilty did believe the Witnesses, and he could not now make a doubt of their Credibility.

Wyndham Iustice accorded in omnibus.

Atkins Iustice contra. That a new Trial should be granted, for 'tis every days practice, and he remembred the Case of Gould∣ston and Wood in the Kings Bench, where the Plaintiff in an Action on the Case for Words for calling of him Bankrupt recovered 1500 l. and that Court granted a new Tryal, because the damages were excessive.

The Iury in this Case ought to have respect only to the da∣mage which the Plaintiff sustained, and not to do an unaccount∣able thing that he might have an opportunity to shew himself generous; and as the Court ought with one Eye to look upon the Verdict, so with the other they ought to take notice what is con∣tained in the Declaration, and then to consider whether the Words and Damages bear any proportion, if not, then the Court ought to lay their hands upon the Verdict: 'Tis true they cannot lessen the damages, but if they are too great the Court may grant a new Tryal.

Scroggs Iustice accorded with North and Wyndham, that no new Tryal can be granted in this Cause: He said that he was of Council with the Plaintiff before he was called to the Bench, and might therefore be supposed to give Iudgment in favour of his former Client, being prepossess'd in the Cause, or else (to shew himself more signally just) might without considering the matter give Iudgment against him; but that now he had forgot all former relation thereunto, and therefore delivered his Opinion, that if he had been of the Iury he should not have given such a Verdict, and if he had been Plaintiff he would not take advantage of it, but would overcome with Forgiveness such Follies and Indis∣cretions of which the Defendant had been guilty; but that he did not sit there to give Advice, but to do Iustice to the People. He did agrèe that where an unequal Tryal was, (as such must be where there is any Practice with the Iury) in such Case 'tis good reason to grant a new Tryal, but no such thing appearing to him in this Case a new Tryal could not be granted.

Suppose the Iury had given a scandalous Verdict for the Plaintiff, as a Penny Damages, he could not have obtained a new Trial in hopes to increase them, neither shall the Defendant in hopes to lessen them; and therefore by the Opinion of these three Iustices a new Tryal was not granted.

Afterwards in this Term Serjeant Maynard moved in Arrest of Iudgment, and said, that this Action was grounded upon the Statute of R. 2. Which consists of a Preamble, reciting the Mischief, and of the Enacting part in giving of a Remedy, and that the Defendants Case was neither within the Mischief or the Remedy.

This Statute doth not create any Action by way of particu∣lar design, and if the matter was now Res integra much might be said that an Action for Damages will not lye upon this Sta∣tute; for the Statute of Westm. 2. appoints that the Offender shall suffer imprisonment, until he produces the Author of a false Report; and the Statute of 2 R. 2. which recites that of Westm. 2. gives the same punishment, and the Action is brought qui tam, &c. and yet the Plaintiff only recovers for himself: It was usual to punish Offenders in this kind in the Star Cham∣ber; as in the * Earl of Northampton's Case, where one Good∣rick said of him, That he wrote a Book against Garnet, and a Letter to Bellarmine; intimating, that what he wrote in the Book was not his Opinion, but only ad captandum populum, which was a great disgrace to him in those days, being as much as to say, he was a Papist, Cro. Eliz.

But the Serjeant would not insist upon that now, since it hath been ruled that where a Statute prohibits the doing of a thing which if done might be prejudicial to another; in such case he may have an Action upon that very Statute for his Damages.

But the ground on which he argued was, that these words as spoken are not within the meaning of the Act, for they are not actionable.

1. Because they are no scandal, and words which are actio∣nable must import a great Scandal, which no circumstance or occasion of speaking can excuse; and if they are scandalous and capable of any mitigation by the precedent discourse, the pleading of that matter will make them not actionable; and for this the Lord Cromwel's Case is a plain Authority, the Words spoken of him were, You like those that maintain Sedition against the King's Person; the occasion of speaking of which was to give an account of his favouring the Puritan Preachers, which was all that was intended by the former dis∣course; for that Lord had approved a Sermon which was preach∣ed

by a Parson against the Common Prayer Book, and the De∣fendant having forbid such Preaching, the Lord told him that he did not like him, upon which he spoke those Words; so that the subject matter explained the sense, for which reason it was adjudg∣ed that the Action would not lie.

2. The scandal for which an Action may be brought within this Statute must be false, for that word goes quite through the whole Act, viz. false News, false Lyes, &c. and the words here are so general, that it cannot appear whether they are true or false, for there can be no Iustification here; as in case where a Man is charged with a particular Crime, my Lord Townsend is not charged with any particular Act of Injustice as a Subject, nor with any Misdemeanour as a Peer, nor with any Offence in an Office.

If therefore in all Actions brought upon this Statute the De∣fendant may justifie and put the matter in Issue to try whether it be true or false; and in this Case the Defendant can neither ju∣stifie nor traverse, for this reason the Action will not lie.

That the Words are general and of a doubtful signification, it cannot be denied; for to say He is an unworthy Man imports no particular Crime; Unworthy is a term of Relation, as he is unworthy of my Friendship, Acquaintance or Kindred, and so may be applicable to any thing; and a Lord may in many things be unworthy of a particular Mans Friendship, as if he promises to pay a Sum of Mony at a day certain, and faileth in the payment, (as 'tis often seén,) such is an unworthy Man, but that will not bear an Action: He is an unworthy Man who invites another to Dinner to affront him; but it will not bear an Action to say, That a Lord invited me to a Dinner to abuse me; neither will it be actionable to say, He is an unworthy Man, because such instances may be given of his Vnworthiness which will not bear an Action. If my Lord had beén compared to any base and unworthy thing, these Words might have béen actionable; and that was the Case of the Lord Marquess of Dorchester, it being said of him, That there was no more value in him than in a Dog.

Then to say, A Man acts against Law, this is no Scandal, because every Man who breaks a Penal Law, and suffers the Pe∣nalty, is not guilty of any Crime. The Statute commands the burying in Woollen, the Party buries one of his Family in Linnen; in this he acts against the Law, but if the Penalty is satisfied, the Law is so likewise.

A Man who acts against Law acts against Reason, because Lex est summa ratio; but no instance is here given wherein he did thus act: 'Tis not said, that he did act against Law wilfully, or that

he used to do any thing against Law; and so cannot be like the Case of the Duke of Buckingham, who brought an Action for these Words, viz. You are used to do things against Law, and put Cat∣tle into a Castle where they cannot be replevied; for there was not only an Vsage charged upon him, but a particular instance of Oppression.

This Action lies for Words spoken of a Iudge of either Bench, and of a Bishop, as well as of a Peer. Now if a Man should say, A Judge acted against Law, will an Action lie? Because a Iudge may do a thing against Law, and yet very justly and ho∣nestly, unless all the Iudges were infallible, and could not be subject to any mistakes, which none will deny.

So if a Bishop return the Cause of his Refusal to admit a Clerk quia criminosus, this is a Return against Law, because 'tis too general; but if J. S. should say, A Bishop acted against Law, and shew that for Cause, an Action would not lye. If the the Lord Townsend had commanded his Bayliff to make a Di∣stress without Cause, that had been acting against Law and Reason.

He agreed the Words to be uncivil, but not actionable; for if such Construction should be made, a Man must talk in Print, or otherwise not speak any thing of a Peer for fear of an Action.

There are many Authorities where a Péer shall not have an Action for every trivial and slight Expression spoken of him.

As to say of a Péer, He keeps none but Rogues and Rascals about him like himself; by the Opinion of two Iustices, Yelverton and Flemming, the Action would not lie, because they are Words of Scolding; and this was the Case of the Earl of Lincoln, Cro. Jac. 196. But the Court was divided; the Defendant died, and so the Writ abated.

Actions for Words have béen of late too much extended; for∣merly there were not above two or three brought in many years; and if this Statute should be much inlarged the Lords them∣selves will be prejudiced thereby by maintaining Actions one against another.

Vpon this Statute of 2 R. 2 c. 5 there was no Action brought till 13 H. 7. which was above an hundred years after the making of that Law; and the occasion of making the Law was, because the Duke of Lancaster, who was then the first Prince of the Blood, took notice that divers were so hardy as to speak of him several lying Words, 1 R. 2. num. 56. and therefore this Sta∣tute was made to punish those, who devised false News, and hor∣rible and false Lies of any Peer, &c. whereby Discords might arise between the Lords and Commons, and great Peril and Mis∣chief

to the Realm and quick Subversion thereof: Now from the natural intent and construction of these Words in the Act, can it be supposed that if one should say, Such a Peer is an unworthy Man, that the Kingdom would be presently in a flame and turned into a state of confusion and Civil War; and to say, That he acts against Law, that the Government would thereby be in danger to be lost, and quick Subversion would follow? This cannot be the common and ordinary understanding of these Words.

If therefore the Plaintiff by speaking these Words was in no hazard nor any wise damnified; if he was not touched in his Loyalty as a Péer, nor in danger of his Life as a Subject; if he was not thereby subjected to any Corporal or Pecuniary Pu∣nishment; nor charged with any Breach of Oath, nor with a particular Miscarriage in any Office; if the Words are so ge∣neral that they import no Scandal, and are neither capable of any Iustification; and lastly, if they are not such horrible Lies as are intended to be punished by the Statute; for these Reasons he con∣cluded the Action would not lie, and therefore prayed, that the Iudgment might be arrested.

Serjeant Baldwin and Serjeant Barrel argued on the same side for the Defendant, but nothing was mentioned by them which is not fully insisted on in the Argument of Serjeant May∣nard, for which Reason I have not reported their Arguments.

But Pemberton Serjeant, who argued for the Plaintiff, said, that it would conduce much to the understanding of the Statute of 2 R. 2. cap. 5. upon which this Action of Scandalum Magnatum was grounded, to consider the occasion of the making of it.

In those days the English were quite of another Nature and Genius from what they are at this time; the Constitution of this Kingdom was then Martial and given to Arms, the very Tenures were Military, and so were the Services as Knights Service, Castleguard and Escuage. There were many Castles of defence in those days in the hands of private Men; their Sports and Pastimes were such as Tilts and Turnaments, and all their Imployments were tending to bréed them up in Chi∣valry.

Those who had any dependency upon Noble Men were en∣ured to Bows and Arrows, and to signalize themselves in Valour it was the only way to Riches and Honour; Arts and Sciences had not got such ground in the Kingdom as now; but the Commons had almost their dependance upon the Lords, whose Power then was exceéding great, and their Practices were con∣formable

to their Power; and this is the true Reason why so few Actions were formerly brought for Scandals, because when a Man was injured by Words he carved out his own Remedy by his Sword.

There are many Statutes made against riding privately armed, which Men used in those days, to repair themselves of any Injury done unto them, for they had immediately recourse to their Arms for that purpose, and seldom or never used to bring any Actions for damages.

This was their Revenge; and having thus made themselves Iudges in their own Cases, it was reasonable that they should do themselves Iustice with their own Weapons; but this Revenge did not usually end in private Quarrels, they took Parties, in∣gaged their Friends, their Tenants and Servants on their sides, and by such means made great Factions in the Commonwealth, by reason whereof the whole Kingdom was often in a flame, and the Government as often in danger of being subverted; so that Laws were then made against wearing Liverys or Badges, and against riding armed.

This was the mischief of those times; to prevent which this Statute of R. 2. was made, and therefore all provoking and vilifying Words, which were used before to exasperate the Peers and to make them betake themselves to Arms, by the intent of this Act are clearly forbidden, which was made chiefly to prevent such consequences; for it was to no purpose to make a Law and thereby to give a Péer an Action for such Words as a common person might have before the making of the Statute; and for which the Peer himself had a Remedy also at the Common Law, and therefore needed not the help of this Act.

If then the design of this Statute was to hinder such practices as aforesaid, the next thing to be considered is what was usual in those days to raise the Passions of Peers to that degreé, and that will appear to be not only such things as imported a great Scandal in themselves, or such for which an Action lay at the Com∣mon Law, but even such things as savoured of any Contempt of their persons; and such as brought them into disgrace with the Commons, for hereby they took occasion of Provocation and Revenge.

'Tis true that very few Actions were brought upon this Statute in some considerable time after it was made, for though such practices were thereby prohibited, the Lords did not presently apply them∣selves to the Remedy therein given, but continued the Military way of Revenge to which they had béen accustomed.

As to the first Objection that hath been made, he gave no answer to it, because it was not much insisted upon on the other side, whether an Action would lye upon this Statute, for the very words of it are sufficient ground for an Action; and 'tis very well known that whereever an Act prohibits an evil thing, the person against whom such thing is done, may maintain an Action.

This Statute consists of two parts, the first is prohibitory, Viz. That no Man shall do so, &c. Then comes the additio∣nal Clause, and saith That if he do he shall incur such Penalty. 'Tis on the first part that this Action is grounded; and so it was in the Earl of Northampton's Case, in that Report which goes under the name of the Lord Coke's 12th. Report, where by the Resolution of all the Iudges in England, except Flem∣ming who was absent; it was adjudged that it was not ne∣cessary that any particular Crime should be fixed on the Plain∣tiff, or any Offence for which he might be indicted.

So are the Authorities in all the Cases relating to this Acti∣on. In the Lord Cromwel's Case for these Words, You like those who maintain Sedition. In the Lord of Lincoln's Case, My Lord is a base Earl, and a paultry Lord, and keepeth none but Rogues and Rascals like himself. In the Duke of Buck∣ingham's Case, He has no more Conscience than a Dog. In the Lord Marquess of Dorchester's Case, He is no more to be valued than the Black Dog which lies there. All which Words were held actionable, and yet they touch not the persons in any thing concerning the Government, or charge them with any Crime, but in point of Dignity or Honour; And they were all vil∣lifying Words, and might give occasion of Revenge.

And so are the Words for which this Action is brought, they are rude, uncivil, and ill natured; Unworthy is as much as to say base and ignoble, a contemptible Person, and a Man of neither Honour or Merit. And thus to speak of a Nobleman, is a Reflection upon the King, who is the Fountain of Honour, that gives it to such persons who are (in his Iudgment) deser∣ving, by which they are made capable of advising him in Par∣liament, and it would be very dishonourable to call unworthy Men thither.

'Tis likewise a dishonour to the Nobility to have such a per∣son to fit among them as a Companion, and to the Commons to have their proceedings in Parliament transmitted to such Peérs: so that it tends to the dishonour of all Dignities, both of King, Lords and Commons, and thereby discords may arise between the two Houses, which is the Mischief intended to be remedied by this Act.

Then the following Words are as scandalous; for to say A Man acts against Law and Reason, imports several such acts done; a Man is not denominated to be unworthy by doing of one sin∣gle Act; for in these Words more is implied, than to say he hath done an unworthy thing; for the Words seem to relate to the Office which the Plaintiff had in the Country, as Lord Lieutenant, which is an Office of great Honour, and can any thing tend to cause more discord and disturbance in the Kingdom, than to say of a great Officer, That he acts according to the dictates of his Will and Pleasure? the consequence of which is, that he will be rather scorned than obeyed.

It hath been objected, that the Words are general, and charge him not with any act.

Answ. The Scandal is the greater; for 'tis not so bad to say A Man did such a particular thing against Law and Reason; as to say, He acts against Law; which is as much as to say, his constant course and practice is such: And to say that the Words might be meant of breaking a Penal Law, that is a foreign Construction; for the plain sense is, he acts against the known Laws of the Kingdom, and his practice and designs are so to do, for he will be guided neither by Law or Reason.

Object. It has been objected that the Scandal must be false: But whether true or not, there can be no justification here, be∣cause they are so general, that they cannot be put in Issue.

Answ. He agreed that no Action would lye upon this Statute if the words were true; but in some Cases the divulging of a Scan∣dal was an Offence at the Common Law; now to argue (as on the other side) that the Defendant cannot justifie, and therefore an Action will not lye, is a false Consequence; because words may be scandalous and derogatory to the dignity of a Peer, and yet the subject matter may not be put in Issue.

He agreed also that occasional Circumstances may extenuate and excuse the Words, though ill in themselves; but this can∣not be applied to the Case in question, because the Words were not mitigated: The Defendant pleaded Not Guilty, and insisted on his Innocence; the Iury have found him Guilty, which is an aggravation of his Crime; if he would have extenuated them by any occasion upon which they were spoken, he should have pleaded it specially, or offered it in Evidence, neither of which was done.

This Act is to be taken favourably for him against whom the Words are spoken; because 'tis to prevent great Mischiefs which may fall out in the Kingdom, by rude and uncivil dis∣courses; and in such Cases 'tis usual for Courts rather to en∣large

the remedy than to admit of any extenuation; for which reasons he prayed that the Plantiff might have his Iudgment.

It was argued by Serjeant Calthrop on the same side, and to the same effect.

Afterwards this Term, all the Iudges argued this Case, se∣riatim at the Bench. And first Iustice Scroggs said, That the greatness of the Damages given should not prevail with him, either on the one side or the other; at the Common Law no Action would lye for such Words, though spoken of a Peer, for such Actions were not formerly much countenanced; but now since a Remedy is given by the Statute, Words should not be construed either in a rigid or mild sense, but according to the genuine and natural meaning, and agreeable to the common understanding of all Men.

At the Barr the strained sense for the Plaintiff is, that these Words import He is no Man of Honour; and for the Defendant, that they import no Scandal; and that no more was meant by them, but what may be said of every Man.

'Tis true, in respect of God Almighty, we are all Vnworthy, but the subsequent Clause explains what unworthiness the De∣fendant intended, for he infers him to be Unworthy, because he acts against Law and Reason.

Now whether the Words thus explained fix any Crime on the Plaintiff, is next to be considered; and he was of Opinion that they did fix a Crime upon him; for to say He is an unwor∣thy Man, is as much as to say, He is a vitious person, and is the same as to call him a corrupt Man, which in the Case of a Peer is actionable; for general words are sufficient to support such an Action, though not for a common person.

To say, a Man acts against Law and Reason, is no Crime, if he do it ignorantly; and therefore if he had said My Lord was a weak Man, for he acts against Law and Reason; such words had not been actionable; but these Words as spoken do not relate to his Vnderstanding, but to his Morals; they relate to him also as a Peer (though the contrary has been objected) that they relate to him only as a Man, which is too nice a distincti∣on; for to distinguish between a Man and his Peerage, is like the distinction between the person of the King, and his Autho∣rity, which hath been often exploded; the words affect him in all qualities, and all relations.

It has been also objected, that the Words are too general; and like the Case of the Bishops Return, that a Man is crimi∣nosus,

which is not good: But though they are general in the Case of a Peer, they are actionable; for to say of a Bishop That he is a wicked Man, these are as general words, and yet an Acti∣on will lye.

It has been also objected, That general Words cannot be justified; but he was of another Opinion, as if the Plaintiff, who was Lord Lieutenant of the County, had laid an unequal charge upon a Man, who upon complaint made to him, ordered such charge to stand, and that his will in such case should be a Law: If the person should thereupon say That the Lord had done Unwor∣thily, and both against Law and Reason; those words might have been justified, by shewing the special matter, either in Pleading or Evidence.

'Tis too late now to examine whether an Action will lye up∣on this Statute, that must be taken for granted, and therefore was not much insisted on by those who argued for the Defen∣dant, for the Authorities are very plain, that such Actions have been allowed upon this Statute.

The Words, as here laid to be spoken, are not so bad as the Defendant might speak, but they are so bad that an Action will lye for them; and though they are general, yet many Cases might be put of general words which import a Crime, and were adjudged actionable.

The Earl of Leicester's Case, He is an Oppressor: The Lord of Winchester's Case, He kept me in Prison 'till I gave him a Release; these words were held actionable, because the plain in∣ference from them is, That they were Oppressors: The Lord Abergavenny's Case, He sent for me and put me into Little Ease: It might be presumed, that that Lord was a Iustice of Peace, as most Peers are in their Counties, and that what he did was by colour of his Authority; so are all the Cases cited by those who argued for the Plaintiff, in some of which the words were strain∣ed to import a Crime, and yet adjudged actionable; especially in the Case of the Lord Marquess of Dorchester, He is to be valued no more than a Dog, which are less slanderous Words than those at the Bar, because the slander is more direct and positive.

It appears by all these Cases, that the Iudges have always construed in favour of these Actions, and this has been done in all probability to prevent those dangers that otherwise might ensue if the Lords should take revenge themselves; for which reasons he held the Action will lye.

Atkyns Iustice contra. This is not a common Action upon the Case, but an Action founded upon the Statute of the 2 of R. 2. upon the Construction whereof the Resolution of this Case will depend, whether the Action will lie or not. And as to that he considered,

• 1. The Occasion.
• 2. The Scope.
• 3. The parts of the Statute.

1. The occasion of it is mentioned in Cotton's Abridgment of the Records of the Tower f. 173. nu. 9 and 10. At the sum∣moning of this Parliament, the Bishop of St. Davids declared the Causes of their meeting, and told both the Houses of the Mis∣chiefs that had hapned by divers slanderous Persons, and sowers of Discord, which he said were Dogs that eat raw Flesh; the mean∣ing of which was, that they devoured and eat one another; to prevent which the Bishop desired a Remedy, and his Request seemed to be the Occasion of making this Law; for ex malis moribus bonae nascuntur Leges.

2. The Scope of the Act was to restrain unruly Tongues from raising false Reports, and telling Stories and Lyes of the Peers and Great Officers of the Kingdom; so that the design of the Act was to prevent those imminent dangers which might arise and be occasioned by such false Slanders.

3. Then the parts of the Act are three, viz. reciting the Offence and the Mischief, then mentioning the ill Effects, and appoint∣ing of a Penalty.

From whence he Observed.

1. That here was no new Offence made or declared; for no∣thing was prohibited by this Statute, but what was so at the Com∣mon Law before.

The Offences to be punished by this Act, are mala in se, and those are Offences against the Moral Law; they must be such in their nature, as bearing of false Witness; and these are Offences against a common Person, which he admitted to be aggravated by the eminency of the person against whom they were spoke; but every uncivil Word, or rude Expression spo∣ken, even of a Great Man, will not bear an Action; and there∣fore an Action will not lie upon this Statute for every false Lye, but it must be horrible as well as false, and such as were pu∣nishable in the High Commission Court, which were enormous Crimes, 12 Co. 43.

By this description of the Offences, and the consequences and effects thereof, he said he could better judge whether the

Words were actionable or not; and he was of Opinion, that the Statute did not extend to Words of a small and trivial nature, nor to all Words which were actionable, but only to such which were of a greater magnitude, such by which Discord might arise be∣tween the Lords and Commons, to the great peril of the Realm, and such which were great Slanders, and horrible Lies, which are words purposely put into this Statute, for the aggravation and distinction of the Crime; and therefore such Words which are actio∣nable at the Common Law, may not be so within this Statute, because not horrible great Scandals.

He did not deny, but that these were undecent and uncivil words, and very ill applied to that honourable person of whom they were spoken, but no body could think that they were horrible great slanders, or that any debate might arise between the Lords and Commons, by reason such words were spoken of this Peer, or that it should tend to the great peril of the Kingdom, and the quick destruction thereof, such as these were not likely to be the effects and consequences of these Words, and therefore could not be within the meaning of the Act, because they do not agree with the discription given in it.

2. Here is no new punishment inflicted on the Offender, for at the Common Law, any person for such Offences as herein are described might have been Fined and Imprisoned, either upon Indictment or Information brought against him, and no other punishment is given here but Imprisonment.

Even at the Common Law scandal of a Peer might be punish∣ed by Pillory and loss of Ears, 5 Co. 125. De Libellis Famosis, 12 Co. 37. 9 Co. 59. Lamb's Case. So that it appears this was an Offence at the Common Law, but aggravated now, because against an Act of Parliament, which is a positive Law; much like a Proclamation which is set forth to enforce the execution of a Law, by which the Offence is afterwards greater.

He did agree, that an Action would lie upon this Statute, though there were no express Words to give it to a Peer, be∣cause where there is a Prohibition, and a Wrong and Damage arises to the Party, by doing the thing prohibited; in such Case the Common Law doth intitle the Party to an Action, 10 Co. 75. 12 Co. 100, 103. And such was the Resolution in the Earl of Northampton's Case, upon construction of the Law as inci∣dent to the Statute; and as the Offence is greater because of the Act, and as the Action will lie upon the Statute, so the Party injured may sue in a qui tam, which he could not have done before the making this Law.

3. But that such words as these were not actionable at the Com∣mon Law, much less by the Statute; for the Defendant spoke only his Iudgment and Opinion, and doth not directly charge the Plaintiff with any thing, and might well be resembled to such Cases as are in Rolls Abridgm. 1 part 57. pl 30. which is a little more solemn, because adjudged upon a special Verdict; the Words were spoken of a Iustice of Peace, Thou art a Blood-Sucker, and not fit to live in a Commonwealth. These were not held actionable, because they neither relate to his Office, or fix any Crime upon him. Fol. 43. in the same Book, Thou de∣servest to be hanged, not actionable, because it was only his Opinion.

So, where the Words are general without any particular Circumstances, they make no impression and gain no credit; and therefore in Cro. Car. 111. 1 Roll. Abridgm. 107. pl. 43. You are no true Subject to the King; the Action would not lie.

In this Case 'tis said, the Plaintiff acts against Law, which doth not imply a Habit in him so to do; and when Words may as well be taken in a mild, as in a severe Sense, the Rule is quod in mitiori sensu accipienda sunt. Now these Words are capable of such a favourable construction; for no more was said of the Plaintiff, than what in some sense may be said of every person whatsoever; for who can boast of his Innocency? who keeps close in all his actions to Law and Reason? and to say A Man acts against both, may imply that he departed from those Rules in some particular Cases, where it was the Error of his Iudgment only.

In the Duke of Buckingham's Case, Sheppard's Abridgment 1 part, f. 28. Viz. You are used to do things against Law; and mentions a particular fact there indeed, because of Usage; of the ill practice it was held that an Action lies; but if he had been charged for doing a thing against Law but once, an Action would not lie.

He then observed how the Cases which have been adjudged upon this Statute, agree with the Rules he had insisted on in his Argument, which Cases have not been many, and those too of late times; in respect of the Antiquity of the Act, which was made almost 300 hundred years since, Anno 1379. and for 120 years after no Action was brought, the first that is Report∣ed was 13 H. 7. Keilway 26. So that we have no contempora∣nea expositio of the Statute to guide an Opinion, which would be a great help in this Case; because they who make an Act best understand the meaning; but now the meaning must be

collected from the Statute it self, which is the best Exposition, as the Rule is given in Bonham's Case, 8 Co. Vide the Case in 13 H. 7.

The next Case in time is the Duke of Buckingham's Case, 4 H 8. Cromp Jur. of Courts, f. 13. You have no more Conscience than a Dog. Lord Abergavenny against Cartwright, in the same Book, You care not how you come by Goods; in both which Cases the Words charge the Plaintiff with particular matter, and give a Narrative of something of a false Story, and do not barely rest upon an Opinion. In the Bishop of Norwich his Case, Cro. Eliz. 1. Viz. You have writ to me that which is against the Word of God, and to the maintainance of Superstition. These were held actionable, because they refer to his Function and great∣ly defame him, and yet he had but 500 Marks Damages. 29 & 30 Eliz. 1 Cro. 67. The Lord Mordant against Bridges, My Lord Mordant did know that Prude robbed Shotbolt, and bid me com∣pound with Shotbolt for the same, and said, he would see me sa∣tisfied for the same, though it cost him an hundred pounds; which I did for him being my Master, otherwise the Evidence I could have given would have hanged Prude: These Words were held actionable and 1000 l. Damages given; and in all the other Ca∣ses which have been mentioned upon this Statute, and where Iudgment was given for the Plaintiff, the Words always charge him with some particular Fact, and are positive and certain, but where they are doubtful and general, and signifie only the Opinion of the Defendant, they are not actionable.

The Words in the Case at Bar, neither relate to the Plain∣tiff as a Peer, or a Lord Lieutenant, and charge him with no particular Crime; so that from the authority of all these Cases he grounded his Opinion, that the Action would not lie; and he said, If Laws should be expounded to wrack People for Words, instead of remedying one Mischief, many would be introduced, for in such Case they would be made Snares for Men.

The Law doth bear with the Infirmities of Men, as Reli∣ligion, Honour and Vertue doth in other Cases; and amongst all the excellent Qualities which Adorn the Nobility of this Na∣tion, none doth so much as forgiving of Injuries; Solomon saith, That 'tis the Honour of a Man to pass by an Infirmity. Which if the Plaintiff should refuse, yet the Defendant (if he thinks the Damages excessive) is not without his remedy by Attaint, for he said he could shew where an Attaint was brought against a Iury for giving 60 l. Damages.

He farther said, that he could not find that any Iudgment had been either reversed or arrested upon this Statute, and therefore it was fit that the Law should be setled by some Rule, because 'tis a wretched condition for People to live under such Circumstances, as not to know how to demean themselves to∣wards a Péer; and since no Limits have been hitherto prescribed 'tis fit there should be some now, and that the Court should go by the same Rules in the Case of a Peer, as in that of com∣mon person, that is, not to construe the Words actionable with∣out some particular Crime charged upon the Plaintiff, or unless he alledge special damages; for which Reasons he held that this Action would not lye.

Wyndham Iustice accorded with Scroggs; and the Chief Iustice North agreed with them in the same Opinion; his Argument was, viz.

First, he said that he did not wonder that the Defendant made his Case so solemn, being loaded with so great damages; but that his Opinion should not be guided with that or with any Rules, but those of Law, because this did not concern the Plain∣tiff alone, but was the Case of all the Nobility of England; but let it be never so general, and the Conveniences or Incoveni∣ences never so great, he would not upon any such considerations alter the Law.

He said that no Action would lie upon this Statute, which would not lie at the Common Law; for where a Statute pro∣hibits a thing generally, and no particular Man is concerned, an Offence against such a Law is punishable by Indictment; but where there is a particular damage to any person by doing the thing prohibited, there an Action will lie upon the Statute, and so it will at the Common Law.

The Words therefore which are actionable upon this Statute are so at the Common Law.

This Statute extends only to Peers or other great Officers; now every Peer as such is a great Officer, he has an Office of great Dignity, he is to support the King by his advice, of which he is made capable by the great Eminency of his Reputation, and therefore all Words which reflect upon him as he is the Kings Councellor, or as he is a Man of Honour and Dignity, are action∣able at the Common Law.

In the ordinary Cases of Officers 'tis not necessary to say that the Words were spoken relating to his Office, as to say of a Lawyer that He is a Sot or an Ignoramus; or of a Tradesman, He is a

Bankrupt, the Action lies though the Words were not spoken of either as a Lawyer or Tradesman.

He did not think that Iudges were to teach Men by what Rules to walk other than what did relate to the particular mat∣ter before them, all other things are gratis dicta; neither would he allow that distinction, that an Action would not lie where a Man spoke only his Opinion; for if that should be admitted, it would be very easie to scandalize any Man, as I think such a Judge is corrupt, or I am of Opinion that such a Privy Councel∣lor is a Traytor; and can any Man doubt whether these or such like Words are actionable or not, because spoken only in the sense of the person? 'Tis true, in some Cases where a Man speaks his own particular disesteem an Action will not lie, as if I say, I care not for such a Lord, but that differs much where a Man speaks his Opinion with reference to a Crime; for Opinions will be spread, and will have an implicit Faith, and because one Man believes it another will; and 'tis upon this ground that all the Cases which have been since the Statute are justified; and so was the late Case of the Marquess of Dorchester, He is no more to be valued than the Black Dog which lies there which were Words of disesteem, and only the Opinion of the Defen∣dant, in which Case Iudgment was affirmed in a Writ of Error.

Object. If it be objected to what purpose this Statute was made if no Action lies upon it, but what lay at the Common Law.

Answ. The Plaintiff now upon the Statute must prosecute tam pro Domino Rege quam pro seipso, which he could not do at the Common Law. And it has beén held in the Starr-Chamber that if a Scandalum Magnatum be brought upon this Statute the Defendant cannot justifie, because 'tis brought qui tam, &c. and the King is concerned; but the Defendant may explain the Words and tell the occasion of speaking of them, if they are true, they must not be published because the Statute was to prevent Discords.

Object. These Words carry in them no disesteem.

Answ. According to a Common Vnderstanding they are Words of disrespect and of great disesteem; for 'tis as much as to say, that the Plaintiff is a Man of no Honour; he is one who lives after his own Will, and so is not fit to be employed under the King; if any precedent discourse had qualified the speaking these Words it ought to have been shewn by the Defendant, which is not done, and therefore he concluded that the Words notwith∣standing

what was objected were actionable; and so by the Opi∣nion of him, Wyndham and Scroggs Iustices, Iudgment was given for the Plaintiff.

Atkins Iustice of a contrary Opinion.

Anonymus.

AN Action of Assault, Battery, Wounding and false Im∣prisonment for an hour was brought against the Defen∣dant, who pleads quoad venire vi & armis Not-Guilty; and as to the Imprisonment he justified as Servant to the Sheriff attending upon him at the time of the Assize, from whom he received a Command to bring the Plaintiff (being another of the She∣riffs Servants) from the Conventicle, where finding of him, he (to wit the Defendant) did molliter manus imponere upon the Plaintiff, and brought him before his Master, quae est eadem transgressio; To this the Plaintiff demurred and shewed for Cause,

1. That the Substance of the Iustification is not good, be∣cause the Servant could not thus justifie though his Master might; for the Lord may beat his Villain without a Cause, but if he command another to do it, an Action of Battery lies against him, 2 H. 4. 4. But though this might have been good, if well pleaded, yet 'tis not good as pleaded here; for

2. The Defendant saith quoad venire vi & armis Not-Guilty, but saith nothing of the wounding which cannot be justified, and therefore this Plea is not good; for which reason it was clearly resolved that the Plea was ill, but the Court inclined that the Sub∣stance of the Plea was well enough.

The Chief Iustice and Iustice Scroggs were of Opinion that a Man may as well send for his Servant from a Conventicle as from an Alehouse, and may keep him from going to either of those places: And the Chief Iustice said that he once knew it to be part of a Marriage Agreement that the Wife should have leave to go to a Conventicle.

But in this Case Leave was given to amend the Plea, and put in quoad vulnerationem Not-Guilty; and it was held that though the Parties had joined in Demurrer, yet the Defendant might have Liberty to amend before Iudgment given.

Singleton versus Bawtree Executor.

ASsumpsit against the Defendant as Executor, who pleads the Testator made one J. S. Executor, who proved the Will and took upon him the Execution thereof, and administred the Goods and Chattels of the Testator, and so concludes in Abate∣ment Et petit Judicium de Brevi, with an Averment that J. S. Superstes & in plena vita existit.

To this Plea the Plaintiff demurred, because the Defendant ought to have traversed abs{que} hoc that he was Executor, or ad∣ministred as Executor, and so are all the Pleadings, 9 H. 6. 7. 4 H. 7. 13. 7 H. 6. 13.

But Serjeant Pemberton for the Defendant said, that there is a difference when Letters of Administration are granted in case the Party die intestate, and when a Man makes a Will and therein appoints an Executor, for in that Case the Execu∣tor comes in immediately from the death of the Testator; but when a Man dies intestate the Ordinary hath an Interest in the Goods, and therefore he who takes them is Executor de son tort, and may be charged as such; but 'tis otherwise generally, where there is a Will and a rightful Executor, who proveth the same, for he may bring a Trover against the Party for taking of the Testators Goods though he never had the actual possession of them; and therefore the taking in such case will not make a Man Executor de son tort, because there is another lawful Exe∣cutor; but 'tis true, that if there be a special Administration 'tis otherwise; as if a Stranger doth take upon him to pay Debts or Legacies; or to use the Intestates Goods; such an express Administration will make him Executor de son tort, and liable, as in Read's Case, 5 Co.

So in this Case the Defendant pleads that J. S. was Execu∣tor, which prima facie discharges him; for to make him chargea∣ble the Plaintiff ought in his Replication to set forth the special Administration, that though there was an Executor, yet before he assumed the Execution or proved the Will, the Defendant first took the Goods, by which he became Executor of his own Wrong, and so to have brought himself within this distinction, (which was the truth of this Case) and that would have put the mat∣ter out of dispute, which not being done, he held the Plea to be good; and so prayed Iudgment for the Defendant.

The Court were of Opinion that prima facie this was a good Plea; for where a Man confesses and avoids, he need not traverse, and here the Defendant had avoided his being chargeable as Executor de son tort, by saying that there was a rightful Executor who had administred the Testators whole E∣state; but the Surmise of the Plaintiff and the Plea of the De∣fendant being both in the affirmative no Issue can be joined thereon; and therefore the Defendant ought to have traversed that he was Executor, or ever administred as Executor, the ra∣ther because his Plea gives no full Answer to the Charge in the Declaration, being charged as Executor, who pleads that another was Executor, and both these matters might be true, and yet the Defendant liable as Executor de son tort, which (notwith∣standing Iniquum non est praesumendum) may be well intended here; and so Iudgment was given against the Defendant that this was no good Plea.

Adams versus Adams.

DEBT upon Bond to perform an Award, so that it be made before or upon the 22d day of December, or to choose an Vmpire.

The Defendant pleads no Award made: The Plaintiff replies and sets forth an Award, and assigns a Breach: The Defen∣dant demurrs.

1. That here is no good Award, because the Arbitrators were to make it before or upon the 22d day of December, and if they could not agrée, to choose an Vmpire: Now the Award set forth in the Replication was made by an Vmpire chosen after the 22d day of December, which the Arbitrators had not power by the Sub∣mission to choose, Sed non allocatur, because they might have made their Award upon the 22d. of December, and there∣fore could not choose an Vmpire till afterwards; for their Power was only determined as to the making an Award.

2. Because the Vmpire recites that the Parties submitting had bound themselves to stand to his Award which is not true, Sed non allocatur, because 'tis but Recital.

3. The Award is that the Defendant should pay the Plain∣tiff two Sums at several times, and that several Releases shall be given presently, and so the Bond and the Mony would be discharged; and for that reason the Awarding the Release was void against the Plaintiff, and by consequence there is nothing on

his side to be done; and the Court were all of Opinion that for this last reason the Award was not good.

Serjeant Baldwyn who was of Council for the Plaintiff, said that it was an Exception which he could not answer if true, but said that the Award was not that Releases should be given presently, but that the Mony should be paid and Releases given, by which it appears by the very Method and Order of the Award, that the general Releases were not to be given till after the Mony paid; and that being the Case the Court were clear of Opinion, that it was well enough; and so Iudgment was given for the Plain∣tiff.

Brook versus Sir William Turner.

IN a Prohibition to the Spiritual Court to prove the Will of Philippa Brooks by Sir William Turner her Executor.

A Tryal at the Barr was had, in which the Case was, viz. That James Phillips, by Will in Writing dated 24 Aprilis, 1671. inter alia gave to Philippa for Life, in lieu and full of her Dower, all his Houses in Three Crown Court in Southwark, purchased by him of one Mr. Keeling; another House in Southwark purchased of one Mr. Bowes, and all his Houses in New Fishstreet, Pud∣ding-Lane, Buttolph Lane, Beer Lane, Duxfield Lane and Dow∣gate London; and died.

That afterwards there being a Treaty of Marriage between the Plaintiff Mr. Brooks and Philippa Phillips, it was agréed that all the said Houses and Rents, and Profits thereof, and all Debts, Ready Mony, Iewels and other real and personal E∣state whatsoever, or wherein Philippa, or any in Trust for her, were interessed or possessed, should at any time as well before as after the Marriage be disposed in such manner as should be agreed on between them.

And thereupon by Indenture tripartite between Mr. Brook of the first part, the said Philippa Phillips of the second part, and William Williams and Francis Gillow of the third part, reciting the said Will of James Phillips and the said Agréement, the said Philippa in consideration of a Shilling paid to her by Williams and Gillow did with the full and free Consent of the said Edward Brook the now Plaintiff, grant, bargain and sell to the said Wil∣liams and Gillow all the said Houses devised by the last Will of the said James Phillips, in Trust that the said Trustees should per∣mit her to receive and enjoy the whole Rents and Profits of all

the Houses purchased of Mr. Keeling, and of all the Houses in Beer Lane, and of two of the Houses in Broadstreet in the possession of James and Worsley, and the Quarters Rent only due at Christ∣mas then last past, and no more, saving to Philippa all former Rents and Arrears thereof to be received by her, and not by Mr. Brook, and to be imploied as therein after was mentioned.

And upon this farther Trust, that after Mr. Brooks death in case the said Philippa survived, that then the Trustées should permit Philippa and her Assigns from time to time to grant, sell and dispose of the rest of the Premisses, and all others where∣of she was seised or possessed, as she should think fit; and also to receive, dispose of and enjoy all the Rents and Profits of the Premisses (not thereby appointed to be received by the Plain∣tiff) for her only particular and separate use, and not for the use of the Plaintiff, without any account to be given for the same, and not to be accounted any part of Mr. Brook's Estate; and that the Acquittances of the said Philippa be good discharges against the Plaintiff; and the said Trustees to joyn with Philippa in the Sale and disposition of the Premisses.

And Philippa in farther consideration of the said Marriage agreed to pay to Mr. Brook on the day of Marriage 150 l. and to deliver him several Bonds and Securities for Mony in the said Indenture particularly named.

And the said Philippa in farther pursuance of the said Agree∣ment, and in consideration of a Shilling paid to her by the said Trustees, did with the like assent assign to them all her Iewels, Rings, Mony, &c. and other her real and personal Estate, upon Trust that they should permit her to enjoy the same to her own separate and distinct use, and to dispose thereof from time to time as well before the said Marriage as afterwards, as she should think fit without any Accompt, and for want of such Limitation or Appointment, in Trust for her, her Executors, Administrators or Assigns; and the Plaintiff not to hinder or impeach the same, and not to be taken as any part of his Estate, or be subject to his Debts, Legacies or Engagements.

And the Plaintiff covenanted, that if the Marriage took effect, the Trustees should quietly enjoy the Premisses, and Philippa to dispose thereof without trouble or molestation by him, his Exe∣cutors, &c. and that Philippa (notwithstanding the Marriage) should at any time either before or after, have liberty by Deed or Will in Writing by her published in the presence of two or more credible Witnesses, or otherwise howsoever, at her pleasure to give and dispose all her real and personal Estate, Goods, Chattels, &c. whereof she was possessed before the said intended Marriage,

or at any time after, or any other person in Trust for her (except such part thereof as was thereby agreed to be paid to, and received by the Plaintiff) to such person or persons, and to such use and uses, intents and purposes as she should think fit, and that the Plaintiff should assent thereunto, and not impeach the same in Law or Equity.

The Marriage shortly afterwards took effect, and Philippa by Will in Writing gave all her Estate away in Legacies and Cha∣ritable Vses, and she devised to the Plaintiff 20 l. to buy him Mourning, and gave to Sir William Turner the Defendant 100 l. and made him Executor; and she devised to Mr. Hays and to Mr. Grace 20 l. apiece, whom she made Overseers of her Will, and died. There was neither Date or Witnesses to this Will, save only the Month and Year of our Lord therein mentioned; and that this Will not being proved in the Spiritual Court, the Plaintiff moved for a Prohibition, and the Defendant took Issue upon the Suggestion.

In which Case these Points were resolved by the Court.

1. If there be an Agreement before Marriage that the Wife may make a Will, if she do so, 'tis a good Will, unless the Husband disagreés; and his Consent shall be implyed till the con∣trary appear. And the Law is the same though he knew not when she made the Will, which when made 'tis in this Case, as in others, ambulatory till the death of the Wife, and his dissent thereunto; but if after her death he doth consent he can never afterwards dissent, for then he might do it backwards and for∣wards in infinitum.

2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to shew his dis∣sent.

3. If the Husband consent that his Wife shall make a Will, and accordingly she doth make such a Will and dieth, and if after her death he comes to the Executor named in the Will, and seems to approve her choice, by saying, He is glad that she had appointed so worthy a Person, and seemed to be satisfied in the main with the Will, and recommended a Coffin-maker to the Executor, and a Goldsmith for making the Rings, and a Herald Painter for making the Escutcheons, this is a good assent and makes it a good Will, though the Husband when he sees and reads the Will (being thereat displeased) opposes the Probate in the Spiritual Court by entring Caveats and the like; and such disagreément after the former assent will not hurt the Will, because such assent is good in Law, though he know not the particular Bequests in the Will.

4. When there is an express Agreement or Consent that a Woman may make a Will, a little proof will be sufficient to make out the continuance of that Consent after her death; and it will be needful on the other side to prove a Disagreement made in a solemn manner; and those things which prove a dissatisfacti∣on on the Husbands part may not prove a disagreement, because the one is to be more formal than the other; for if the Husband should say that he hoped to set aside the Will, or by a Suit or otherwise to bring the Executor to terms, this is not a dissent.

Sir Robert Howard versus the Queens Trustees and the Attorney General. In the Dutchy.

UPON a Bill exhibited in the Dutchy Court; The Que∣stion was, whether the Stewardship of a Mannor was grantable in Reversion or not?

The Attorny General and the Queens Council, Butler and Hanmore, held that it was not: But Serjeant Pemberton and Mr. Thursby would have argued to the contrary; for they said it might be granted in Fée, or for any less Estate, and so in re∣version, for it may be executed by Deputy.

But this Question arising upon a Plea and Demurrer the De∣bate thereof was respited till the hearing of the Cause, which was the usual Practice in Chancery, as North Chief Iustice, who assisted the Chancellor of the Dutchy, informed the Court.

And he said that in all Courts of Equity the usual course was; when a Bill is exhibited to have Mony decreed due on a Bond up∣on a Suggestion that the Bond is lost; there must be Oath made of it, for otherwise the Cause is properly triable at the Common Law; and such course is to be observed in all the like Cases, where the Plaintiff by surmise of the loss of a Déed draws the Defendant into Equity; but if the Case be proper in its own na∣ture for a Court of Conscience, and in case where the Déed is not lost, the Remedy desired in Chancery could not be obtained upon a Trial at Law, there though it be alledged that the Déed is lost, Oath need not be made of it; as if there be a Déed in which there is a Covenant for farther Assurance, and the Party comes in E∣quity, and prays the thing to be done in specie, there is no need of an Oath of the loss of such Deed, because if it 'tis not lost the Party could not at Law have the thing for which he prayed Re∣lief, for he could only recover Damages.

Note also, That he said in the Case of one Oldfeild that it was the constant practise where a Bill is exhibited in Equity to foreclose the right of Redemption, if the Mortgagor be fore∣closed he pays no Costs; and though it was urged for him that he should pay no Costs in this Case, because the Mortgagee was dead, and the Heir within Age, and the Mony could not safely be paid without a Decree, yet it being necessary for him to come into Equity, he must pay for that necessity.

Note also, the difference between a Mortgage in Fee, and for Years; for if 'tis in Fee, the Mortgagor cannot have a Re∣conveyance upon payment of the Mony, till the Heir comes of Age.

It was agreed in this Case by the Court, that if there be Tenant for Life, Remainder in Fee, and they joyn in a Deed purporting an absolute Sale, if it be proved to be but a Mort∣gage he shall have his Estate for Life again, paying pro rata, and according to his Estate; and so it shall be in the Case between Tenant in Dower and the Heir.

Loyd versus Langford.

IN a special Verdict the Case was: Viz. A. being Tenant in Fee of Lands, demised the same to B. for seven years, B. re-demises the same Lands to A. for the said Term of seven years, reserving 20 l. Rent per Annum. A. dyes, his Wife en∣ters as Guardian to the Heir of A. her Son, and receives the Profits. B. brings Debt against her as Executrix de son tort, in the debet and detinet, and whether this Action would lie or not was the Question.

Serjeant Baldwyn, who argued for the Plaintiff, held that it did lie, for though the Rent in this Case reserved did not attend the Reversion, because the Lessee had assigned over all his Term, yet an Action of Debt will lie for that Rent upon the Contract, Cro. Jac. 487. Witton versus Bye 45 Ed. 3. 8. 20 E. 4 13. Cove∣venant will lie upon the Words Yeilding and Paying.

If then here is a good Rent reserved, the Wife who receives the Profits, becomes Executrix de son tort, and so is lyable to the payment.

It hath been held there cannot be an Executor de son tort of a Term, but the Modern Opinions are otherwise; as it was held in the Case of Porter and Sweetman, Trin. 1653. in B. R. And

that an Action of Debt will lie against him. Indeed such an Executor cannot be of a Term in futuro, and that is the Re∣solution in Kenrick and Burgesses Case, Moor Rep. Where in Ejectment upon Not Guilty pleaded, it appeared that one Oke∣ham had a Lease for years of the Lands in question, who dyed Intestate, which Lease his Wife assigned by parol to Burgess; and then she takes out Letters of Administration, and assigns it again to Kenrick, who by the Opinion of the Court had the best Title.

But if one enter as Executor de son tort, and sell Goods, the Sale is good; which was not so in this Case, because there was a Term in Reversion, whereof no Entry could be made, for which reason there could be no Executor de son tort to that, and therefore the Sale to Burgess before the Administration, was held void.

And that there may be an Executor de son tort of a Term, there was a late Case adjudged in Trin. 22 Car. 2. between Ste∣vens and Carr, which was, Lessee for years rendring Rent dies Intestate, his Wife takes out Letters of Administration, and af∣terwards Marries a second Husband, the Wife dies, and the Husband continues in Possession and receives the Profits: It was agreed, that for the Profits received he was answerable as Executor de son tort, and the Book of 10 H. 11. was cited as an authority to prove it.

Pemberton Serjeant for the Defendant, would not undertake to answer these Points which were argued on the other side, but admitted them to be plain against him, for he did not doubt but that Debt would lie upon the Contract, where the whole Term was assigned, and that there may be an Executor de son tort of a Term; but he said, that which was the principal point in the Case was not stirred: The question was, whether an Action of Debt will lie against the Defendant as Executor de son tort where there is no Term at all; for 'tis plain there was none in being in this Case, because when the Lessee Re-demised his whole Term to the Lessor, that was a Surrender in Law, and as fully as if it had been actually surrendred; and therefore this was quite different from the Case, where Lessee for years makes an Assignment of his whole Term to a Stranger, Debt will lie upon the Contract there, because an Interest passes to him in Reversion, and as to this purpose a Term is in esse by the Contract of the Parties, and so it would here against the first Lessor, who was Lessee upon the Re-demise; but now because of the Surrender, the Heir is intituled to enter, and the Mo∣ther,

who is the Defendant, enters in his Right as Guardian, which she may lawfully do.

If therefore Debt only lies upon the Contract of the Testa∣tor, as in truth it doth where the whole Term is gone, the Plain∣tiff cannot charge any one as Executor de son tort in the debet and detinet.

And the whole Term is gon here by the Re-demise, which is an absolute Surrender, and not upon Condition, for in such Case the Surrenderor might have entred for non-performance, and so it might have been revived: And of this Opinion was the whole Court in both points, and would not hear any far∣ther Argument in the Case; the Plaintiff having no remedy at Law, the Court told him that he might seek for relief in Chancery, if he thought fit.

Harman's Case.

IN Covenant the breach assigned was, that the Defendant did not repair; He pleads generally quod reparavit & de hoc ponit se super patriam, this was held good after a Ver∣dict.

Quadring versus Downs, & al'.

IN a Writ of right of Ward, the Case was, Viz Sir Wil∣liam Quadring being seised of Lands in Fee, by Deed and Fine settles them upon his Son William and his Wife for their Lives, the Remainder to the second Son in Tail, with divers Remainders over. The Grandfather dyes, the Father and Mo∣ther dyes, the eldest Son dyes without Issue, and so the Land came to the second Son.

The Plaintiff intitles himself as Guardian in Socage to the Wardship both of the Person and Lands of the Infant, whom the Defendant detained, and Serjeant Newdigate for him demurred, because where there is no descent there can be no Wardship, for the second Son is in by purchase and not by de∣scent, for here is no mention of the Reversion in Fee, and there∣fore it may be intended that it was conveyed away; and besides, if it should be intended to continue to Sir William Quadring the Grandfather after this Settlement, yet it cannot be thought to

descend to the Ward, because 'tis not said who was Heir; for though it be said that the Father of the Ward was Son to Sir William, yet 'tis not said Son and Heir, and of that Opinion was the whole Court in both points; for there must be a de∣scent or else there can be no Wardship; and it doth not appear that any descent was here, because 'tis not said that the Rever∣sion did descend, nor who was Heir to Sir William, which the Plaintiff perceiving, prayed leave to amend, and it was granted.

In this Case it was said at the Bar, that one might be a Ward in Socage, though he be in by Purchase, for the Guar∣dian is to have no profit, but is only a Curator, to do all for the benefit of the Ward; and so there need be no descent, as is necessary in the Case of a Ward in Chivalry; for that be∣ing in respect of the Tenure, the Guardian is to have profit.

The Lord Chief Iustice North said, he knew where there was some doubt of the sufficiency of the Guardian in Socage, that the Court of Chancery made him give good Security.

Harding versus Ferne.

IN an Action of Assault, Battery and Imprisonment, 'till the Plaintiff had paid 11 l. 10 s. The Defendant pleads and justifies by reason of an Execution, and a Warrant thereupon for 11 l. and doth not mention the 10 s. And upon demurrer for this Cause, Iudgment was given for the Plaintiff upon the first opening, because it appeared the Defendant took more than was warranted by the Execution.

Ellis versus Yarborough Sheriff of Yorkshire.

IN an Action of Escape the Plaintiff sets forth that the De∣fendant Arrested a Man upon a Latitat directed to him at the Suit of the Plaintiff, and afterwards suffered him to go at large.

The Defendant pleads the Statute of 23 H. 6. cap. 10. that the took good and sufficient Bail within the County according to the Statute.

The Plaintiff replies, that he let him go at large, abs{que} hoc that he took good and sufficient Bail within the County. To this the Defendant demurred.

This Case was argued this Term by Serjeant Skipwith and Baldwyn for the Defendant, and by Serjeant Barrel and George Strode for the Plaintiff; and in their Arguments for the Defendant it was said, That the Plaintiff in this case can∣not maintain an Action of Escape, for where the Sheriff takes Bail, no Escape will lie against him.

1. Because he is compellable by the Statute to let the Defen∣dant to Bail.

2. If he have not the Defendant ready at the return of the Writ, he may be amerced, which is the proper remedy.

3. This precept of letting the Defendant to Bail, being by Act of Parliament, is intended by the direction of the Plaintiff himself, because all people are Parties to the making of an Act of Parliament.

Many Actions have been brought against Sheriffs, upon Sug∣gestions that no Bail have been taken, and for which an Acti∣on on the Case will lie; but where there is Bail taken, the Sheriff hath done his duty which he is commanded to do by the Statute; and if the Defendant doth not appear, the She∣riff is to be amerced, and he is the proper Iudge of the Bail; the Plaintiff is no ways concerned therein whether good or bad.

At the Common Law the Defendant was to continue in Pri∣son till he had satisfied the Plaintiff, to whom no benefit was intended by this Statute, but rather an ease to the Defendant, that he should be from thence discharged, giving good Bail; and the reason why the Statute mentions such Bail is in fa∣vour of the Sheriff also, to secure him from Amerciaments; the Bail being then for his Indempnity, he is the sole Iudge both of their persons, number, and ability, for the Statute requires two Sureties, and that they shall be Men within the County; yet if there is but one, and he not of the County, and if the Bond taken by the Sheriff for the appearance of the Defendant be but 40 l. and the Debt due to the Plaintiff be 400 l. 'tis well enough, because the Statute doth not restrain him to any Sum or Sureties, for he may take what Sum he please to force the De∣fendant to appear.

And when this Security is taken, the Sheriff is neither com∣pellable to assign it to the Plaintiff, or he to take it. Tis true, he doth usually assign it, but that is to discharge himself of the Amerciaments, which is the way that the Plaintiff should pursue where he doth imagine the Bail to be insufficient.

If therefore this Statute was made for the benefit and ease of the Defendant, the Security therein directed is for the in∣dempnity of the Sheriff; and therefore if no Action will lie against him for taking of insufficient Bail, 'tis as reasonable that no Acti∣on should lie against him when he hath taken Bail, which he is compelled to do, and so the Traverse in this Case is immate∣rial, and Iudgment ought to be given for the Defendant.

On the other side it was argued, That an Action of Escape would lye against the Sheriff, if he did not take good Bail, which matter may be traversed; and though here if the Defendant had rejoyned, the Issue had been, whether sufficient Bail within the County or not, yet that part of the Issue had not been material, for the only matter had rested upon the sufficiency or insuffi∣ciency of the Bail in general. Like a Case adjudged in Mich. 14 Car. 2. in B. R. where a Woman had power given her by her Husband to make a Will in the presence of two credible Witnes∣ses: It was pleaded that she made a Will in the presence of A. and B. credible Witnesses, and Issue was thereupon joyned, and it was found to be made in the presence of C. and D. who were credible Witnesses, and this was held to be good, because the substance was found, Viz. That it was made in the presence of two credible Witnesses.

The Defendant therefore here ought to have taken good and sufficient Bail to bring himself within the Statute, and that is traversable, and the Pleadings are well enough, for if there be good Bail, 'tis not material in what County they live.

Vpon the first Argument of this Case, the Lord Chief Iu∣stice inclined that an Action of Escape did lie at the Common Law against the Sheriff; for it was clear that he was to keep the Party arrested in Prison 'till the Debt was satisfied, and that if he had gone at large, it had been an Escape; the Sheriff then hath no excuse but by this Statute, and to entitle himself to any benefit thereby, he must pursue the very directions there∣in prescribed, and therefore ought to take good and sufficient Bail, for otherwise the Statute would be eluded, if it be left in his power to take what Bail he pleases; and he was of Opini∣on, that the Plaintiff had an Interest in the Security, and therefore the Sheriff was lyable, if it was not good when first taken, but not if by any accident afterwards the Bail miscar∣ry or become insolvent.

And Iustice Wyndham was of the same Opinion, that the Sheriff was lyable; he differed only as to the manner of the

Action, which he held should be a special Action on the Case, set∣ting forth the whole matter, and alledging that the Defendant did not take sufficient Bail.

Iustice Atkyns said, the Case depends upon the construction of that Statute, which is very obscure, and the Opinions vari∣ous which have been upon it; 'tis plain the Sheriff is compel∣lable to take Bail, and that an Action lies against him if he refuses such as are sufficient when tendred; but the question was now whether it will lie against him fortaking those who are insufficient; and as to that he said that many Authorities were in our Books, that the taking of Bail is left to the Sheriffs dis∣cretion, and he is thereby to provide for his own indempnity; for he must return a Cepi Corpus upon the Writ, he cannot return that he let him to Bail according to the Statute, and there∣fore inclined that the Action did not lie.

Scroggs Iustice contra. He said that this Statute designed the benefit of the Creditor, that he might either get the Sheriff amer∣ced or have an Action, in both which Cases he might indempni∣fie himself by the Security he had taken. Tis true, he may let the Party to Bail, but 'tis sub modo, it must be upon good Bail; and if the Sheriff be Iudge of the Security, 'tis an Ar∣gument that he is lyable, for if he was not in danger, he need not take Security.

But afterwards upon the second Argument, the Chief Iustice and the whole Court were of Opinion, that Iudgment should be given for the Defendant.

North Chief Iustice. The Common Law was very rigorous as to the execution of Process; the Capias was ita quod habeas the Body at the day of the Return, and if the Sheriff had arrested one, it had been an Escape to let him go. Before the making of this Statute the Sheriff usually took Sureties for the appear∣ance of the Prisoner, and by this means used great Extortion and took great Sums of Mony; to prevent which Mischiefs this Statute was made and so designed.

1. For the ease of the Prisoner, the Sheriff being now com∣pellable to take Security, which he was not obliged to do before.

2. To prevent Extortion, and therefore directs that a Bond shall be taken in such manner and with such conditions as is there∣in mentioned.

But the Plaintiff since the Statute is much in the same conditi∣on

as before, for he is to make the same Return of Cepi Corpus: 'Tis true, he may now let him go upon Bail, but as to the Credi∣tor he is to have him in Court to answer his Suit as before, and shall be amerced if he doth not appear at the Return of the Writ, so that tho' this Statute be an ease to the Defendant, yet 'tis a bur∣then to the Sheriff, who runs a greater hazard since the making of this Act than before; because then he might keep him in prison till the Debt was satisfied, but now he is obliged to let him at large upon Bail, from whom he is directed to take a Bond, which he may keep in his own hands to indempnifie himself: The Court can only amerce him, if the Defendant do not appear at the Return of the Process, and 'tis not material to the party whether the Sheriff take one or more Security, that being in his discretion; some he must take, for otherwise 'tis directly in opposition to the Statute; neither is it material to the party whether they are such as are sufficient, for if they are not, and the Defendant is thereupon discharged, this will not amount to an Escape; because nothing is done but what is pursuant to the Statute, and therefore he is no otherwise chargeable than by Amerciaments.

The Statute was made and intended for the benefit of the Deb∣tor, not of the Creditor, and there might be some colour for the Action if the Sheriff might Return that he let him to Bail, for then it might have been necessary to have alledged the sufficiency of them, which might have been traversed; but now he must pursue the sub∣stance of the Statute so far as to take Bail; he is the proper Iudge of the sufficiency, and when the Bail is taken he must return a Cepi Corpus, so that he is only to be amerced till he bring in the Body, but an Escape will not lie against him.

Long's Case.

ONE Long was arrested in the Pallace-Yard, not far distant from the Hall Gate, the Court being then sitting, and being an Attorny of this Court, he, together with the Officer, was brought into Court, and the Officer was committed to the Fleet, that he might learn to know his distance; and because the Plaintiff was an Attorny of the Court of Kings-Bench, who informed this Court, that his cause of Action was for 200 l. therefore the Court ordered that another of the Sheriffs Bayliffs should take charge of the Pri∣soner, and that Mr. Robinson the Chief Prothonotary should go along with him to the Court of Kings-Bench, which was done, and that Court being informed how the Case was, discharged the De∣fendant upon filing of common Bail.

The Writ upon which this Long was arrested was an At∣tachment of Priviledge, which the Court supposed to be made on purpose to oust him of his Priviledge; for there was ano∣ther Writ against him at the Sheriffs Office at the Suit of ano∣ther person.

The Countess of Northumberland's Case.

ADjudged that where a Péer is Party either Plaintiff or De∣fendant, two or more Knights must be returned of the Iury; and it was said that in Cumberland there was but one Free-holder who was a Knight, besides Sir Richard Stote, a Serjeant at Law; and the Court were of Opinion that rather than there should be a failure of Iustice a Serjeant of Law ought to be returned a Iury∣man, for his Priviledge would not extend to a Case of necessity.

Bell versus Knight, In Banco Regis.

IN an Action of Trover; Vpon Not Guilty pleaded the Iury found a special Verdict, in which the Point was upon the Construction of the Statute of 14 Car. 2. c. 10. for the establishing of an additional Revenue upon the King, his Heirs and Succes∣sors for the better support of his and their Crown and Dignity, by which it is Enacted, That for every Fire-Hearth and Stove in every House the yearly Sum of 2 s. shall be paid to the King, other than such as in the said Act are exempted: Then comes a Proviso which saith, That this Act shall not extend to charge any Blowing House, Stamp, Furnace or Kilne, &c. And the Question now was, whether a Smiths Forge shall be charged with this Duty.

Winnington Sollicitor General conceived that all Fire-Hearths are liable within the Body of the Act, and there is nothing to exempt them but what is in the Exception; and that a Smiths Forge cannot be called a Blowing House within the intent of the Act, notwithstanding the Iury have found that Smiths use Bellows to blow their Forges: For by Blowing Houses such Houses are meant as are in Staffordshire and Suffolk for the making of Iron, these were the Blowing-Houses intended by the Parliament to be excepted, and no other; for if Smiths Forges had béen meant thereby, those would have been inserted in the Proviso as well as the other things therein mentioned.

Words are to be taken in a common Vnderstanding; for if a Traveller should enquire for a Blowing House, no Body would send him to a Smiths Forge.

By the Opinion of the whole Court, it was adjudged upon the first Argument that Smiths Forges are liable to this Duty; and so the Sollicitor said it had been lately adjudged in this Court by the Opinion of Twisden, Wyld and Rainsford; and that my Lord Chief Iustice Hale was of the same Opinion; but Twisden said that neither the Chief Iustice or himself gave any Iudgment upon the Merits, but upon a Point in Pleading.

Stroud versus the Bishop of Bath and Wells, and Sir George Horner. In Communi Banco.

IN a Quare Impedit the Plaintiff alledges that Sir George Horner was seised in Feé of the Mannor of Dowling, to which the Advowson was appendant, and that being so seised he presented one Harding, and then granted the next Avoidance to the Plaintiff.

That the Church became void by the death of the said Harding, and that now it belonged to him to present.

The Bishop pleads that he claimed nothing, but as Ordinary; and the Incumbent pleads that at the time of the bringing of this Writ the Church was full by the Collation of the Bishop upon a Lapse.

The Plaintiff replies that Sir George Horner being seised in Fee of the said Mannor of Dowling, to which the Advowson of the Church was appendant, did tali die & anno apud, &c. pre∣sent him as Clerk absque hoc that the Church was full by Col∣lation.

The Defendant rejoyns protestando that the Church was full tali die; and for Plea saith that it was full upon the Collation of the Bishop, absque hoc that Sir George Horner did tali die & anno, &c. present the Plaintiff as his Clerk, and so traverseth the In∣ducement which the Plaintiff had made to his Traverse; and to this the Plaintiff demurred.

And Serjeant George Strode took three Exceptions to this Rejoinder.

1. That when the Defendant pleads a Matter in Barr, and the Plaintiff hath taken a Traverse upon that, the Defendant should then take Issue upon that Travers, and so have main∣tained

his Barr, from which he had departed here by traversing another Matter.

In a Quare Impedit the Plaintiff declares that Sir Thomas Chichely granted an Advowson to one East and another in Feé, to the Vse of the Wife of the Plaintiff for her Iointure, and that she ought to present.

The Defendant pleads that he is Parson imparsonee ex prae∣sentatione Regis, for that Sir Thomas Chicheley died seised as aforesaid of the Mannor and Advowson held in Capite by Knights Service, which descended to his Son an Infant, and by Office found of the Tenure and descent the King was seised, and pre∣sented him, absque hoc that Sir Thomas granted to East.

The Plaintiff replies, Non habetur tale Recordum de inqui∣sitione; and upon Demurrer it was held that this Traverse of the Inquisition was not good; for there shall not be a Traverse upon a Traverse but where the Traverse in the Barr is mate∣rial to the Title of the Plaintiff, and in such Case he is bound up to it, Cro Car. 104, 105.

2. In his Traverse he hath made the Time parcel of the Issue, viz. absque hoc that tali die & anno praesentavit, whereas it should have been modo & forma only, and so is the Case of Lane and Alexander, where the Defendant intituled himself by Copy of Court of Roll, 44 Eliz. The Plaintiff replies that a Copy was granted to him 1 Junii 43 Eliz. The Defendant maintained his Bar and traverseth the Grant 1 Junii modo & forma; and upon a Demurrer it was said that the Rejoynder was not good, because the day and year of granting of the Copy was not material, if it was granted before the Defendant had his Copy; and so the Traverse ought to have been absque hoc that the Queen granted modo & forma.

But it was adjudged that the day ought not to be made par∣cel of the Issue, and the traversing of it when it ought not so to be, makes it Substance and not Form, so as to be aided by the Statute of 27 Eliz.

3. As the Defendant hath joyned they can never come to an Issue, for he concludes his Traverse Et hoc paratus est verificare, unde petit Judicium, whereas he should have concluded to the Country.

Barton Serjeant; admitting the Pleadings are not good, yet if the Plaintiffs Count is so likewise, he cannot have Iudgment; and that it was so, he said appears in that the Plaintiff had not set forth a sufficient Title; for he hath alledged that Sir George Horner was seised in Fee, and presented the Plaintiff, who was instituted

and inducted, but doth not say that the Presentation was tem∣pore pacis, and therefore it shall be presumed most strongly against himself to be tempore belli, and a Presentation must be laid tempore pacis, and so is the Writ of Assise of Darrein Present∣ment, F. N. B. 31.

The Court held that the Pleadings were not good, and that the Count was good; for 'tis true, if a Man count that he and his Ancestors were seised in Fee of an Advowson, but declares of no Presentation made by him or them; or if he declare of a Pre∣sentation without an Estate, in both Cases it is naught, and good Cause of Demurrer; but here the Count is both of an Estate and a Presentation. And this difference was taken, if a Man gets a Fée by Presentation, which is his Title, he must al∣ledge it to be tempore pacis; but if it be in pursuance of a Right, as if an Advowson be appendant to a Mannor, and he who hath Right to the Mannor, presents, such Presentation is good in time of War; and so Iudgment was given for the Plaintiff.

Stevens versus Austin.

ADjudged, that if a Man hath Common for a certain number of Cattle belonging to a Yard Land, he need not say Le∣vant upon the Yard Land; sed aliter, if it were for a Common sans number.

The Master, Warden and Company of Ironmongers versus Naylor, and others, Defendants. In B. R.

IN Trespass. The Iury found a special Verdict; they find seve∣ral Acts of Parliament, viz. 14 Car. 2. cap. 10.15 Car. 2. cap. 13. and another Act for the better direction of the collecting of the Duty arising by Hearth-Mony by Officers to be appointed by the King; and this was the Act of 16 Car. 2. cap. 3. which provides, That if the Party refuses to pay the Duty by the space of an hour, that then the Officers with the Constable may distrain.

They find that the Company was seised in Fée of five Messuages in which were 35 Fire Hearths in the Month of April, 1673. And that the Company did never finish these Messuages, and that from the time of the building they stood all void, and unoccu∣pied by any Tenant or Tenants whatsoever.

Then they find that the Collectors were lawfully authorised, and that such a day they demanded the Duty for the Fire-Hearths in each of the said Messuages, which they also demanded of the Com∣pany, and which they refused to pay, and thereupon they took the distress and kept it till the Company paid the said Duty, and so make a general Conclusion, &c.

The Question was, whether the Owner of a new House unin∣habited from the time of the building thereof ought to pay this Duty during all that time?

Mr. Pollexfen and Mr. Sympson argued that they shall not be chargeable with this Duty; their general Reason was, because no Duty should arise to the King without some benefit to the Subject.

And as to that it was said, that in this Case both the Re∣venue of the Crown and the Property of the Subject are con∣cerned, from which, as from a Root, all these Impositions arise to sustain the publique Charge. And therefore

It hath been the way of Iudges in the Interpretations of Statutes, not only to consider the benefit of the Crown, but to regard what is convenient for the Subject.

There are two Reasons for Impositions.

1. Such as are Customs, viz. Tunnage and Poundage and private Tolls, which come in lieu of other things, and so are quid pro quo.

2. Subsidies or Grants from the People, which naturally arise in some proportion from a benefit to the Subject.

And under the last of these Reasons falls the present Duty given by the Act of 14 Car. only to proportion the Revenue to the publique Charge of the Crown; and therefore 'tis not to be thought that the Parliament ever intended a Duty to the King where the Subject had no benefit, for ex nihilo nihil fit; and how can it be thought that a Duty should be paid before the Subject hath any Rent, which is the Mother of the Duty; for if a Man expends 1000 l. in building, which is all he is worth, and the Houses should happen not to be let, how can he then raise such a Sum as must be paid to the King? And 'tis an Objection of no weight to say, if this Duty must not be paid till the Houses are let, then the Revenue of the King depends upon a Contingency; because all Duties which come to the Crown do depend upon such.

The next thing to be considered is the Act it self, and as to that,

1. It must be taken as an Act which gives a new Duty to the Crown, and thereupon such Construction ought to be made that the Subjects Estate be not charged further than the Words will bear; and for that reason it is to be taken in an ordinary sense, and not to be strained, though it had been in the Case of an old Duty; and for that the Lord Anderson's Case is a good Autho∣rity, viz. The Statute of 33 H. 8. cap. 30. makes all Mannors (which descend to any Heir whose Ancestor was indebted to the King by Judgment, Recognisance, Obligation or other Specialty) chargeable for payment of the Debt. Tenant in Tail is bound in a Recognizance to S. who is attainted; then Tenant in Tail dies and his Issue aliens bona fide, the King cannot extend the Lands so sold, because the Act shall not be construed to mean all Recog∣nizances for the Kings Debts though the Words are general enough; and though 'tis not said which way the Debts shall come to the King, either by Forfeiture, Attainder, &c. yet they shall be taken in an ordinary sense, viz. such debts as were due to the King originally; for which reason it has been always held where an Act gives any thing to the King and lays a Charge upon the Subject, in such Case it ought to have a moderate construction.

And that this Duty is a Gift cannot be denied, for 'tis called so in the very Act, therefore such ought the Construction to be, and the rather because it is more for the Kings Honour it should be so; and both in this Case as well as in Constructions of his Grants the Law hath more regard for his Honour than for his Profit.

2. This being so called, a Duty or Tax by the very Words of the Act, doth in the natural sense import a proportion out of that in which the Subject hath a benefit; and it will be scarce found that there hath been a general Tax given to the King where the Subject has rather received a loss than any profit out of the thing taxed, because it would be very hard to pay where a Man cannot receive.

In the Case of Tunnage and Poundage provision is made that the Party shall have Allowance if the Goods be lost by Pyracy, which was mentioned to shew how unlikely it was that the Parliament should intend a Duty where the Subject had a loss.

Ever since the making the Statute of 43 Eliz. cap. 2. Houses that lay void and untenanted have neither paid to Church or Poor, which also shews how the Vsage hath beén in Cases almost of the like nature.

The next thing considered were the Clauses in this Act of 14 Car. 2. cap. 10.

1. The first Clause gives a Duty, viz. That every Chimny and Stove shall pay 2 s.

2. The next Clause is to bring this Duty into a way of Charge, viz. That every Owner or Occupier shall give unto the Constable an accompt of the number of Hearths in Writing, and the Consta∣bles to transmit such Accompts to the Sessions, there to be enrolled by the Clerk of the Peace, and a Duplicate to be sent into the Exchequer.

From which it is to be observed that where mention is made of bringing this Duty into a Charge, both Owners and Occu∣piers are named, but the Owner is not named in any place where the payment of the Duty is mentioned, but the Occupier only; so that from the very intent and reason of the Act he cannot be chargeable.

The Accompt thus transmitted is to charge the Inheritance, and therefore it concerns the Owner to look after the Charge; but for empty Houses he cannot be charged, because the Act takes no notice of them in the Clause of Payment, but are purpose∣ly omitted that being laid on the Occupier, and this appears by the Proviso which is strongly penned for the Subject.

Viz. Provided that the Payments and Duties hereby charged shall be charged only upon the Occupier for the time being, &c. and not on the Land-Lord who lett and demised the same; so that by the Body of the Act every House is charged, which being general might have given some colour to charge the Owner, but by the Proviso the Payment is restrained to the Occupier, and if there be no such, there shall be no Payment.

It was said that it cannot be insisted upon that an Owner is an Occupier, because the legal acceptance of the Word Occupation doth only intend an actual Possession and not a Possession in Law, and such is the meaning of the Statute by charging the Occu∣pier for the time being.

If therefore the Proviso extends to Cases where Tenants run away and pay no Rent, (as it certainly doth) because there is no Occupier then in being; what difference can there be between that and this Case where the Land-Lord in both hath no Rent? for if he shall not pay where he cannot receive Rent, why should he pay where he hath none to receive?

And that this was the meaning of the Parliament may fur∣ther appear by a Clause in the Act of 16 Car. 2. cap. 3. made for collecting this Duty by Officers appointed by the King, which doth not inlarge the former Statutes, and by which 'tis En∣acted, That if any Occupier shall leave his House before any of the half yearly Feasts, whereon this Duty is appointed to be paid,

that the next Occupier shall be chargeable with the same for the said half year.

Which Clause had been altogether vain and of no use, if empty Houses had been chargeable with this Duty; for to what purpose was it to charge a succeeding Occupier when the House it self, though untenanted, was chargeable before?

In this Act also, which supplies the defects of the former, this Duty is made payable unto the Officer upon demand at the House where the same shall arise and grow due, and that in case of re∣fusal by the space of an hour the Officer may distrein, which shews a Demand must be where there may be a Refusal, and no Re∣fusal can be where there is no Occupier.

There is also another Clause which mentions both Owner and Occupier in this Act, and which saith, That no Proprietor, Owner or Occupier, shall be molested or charged, unless within two years after the Duty accrewed; so that where-ever a charge is laid, or an ease is given to the Subject, the Word Occupier and sometimes both Occupier and Owner promiscuoslly are used; but where a payment is to be made, the Owner is never men∣tioned, and if so, nothing shall be intended within either of the Statutes, to enlarge this Duty upon the Subject, beyond the Words and plain meaning thereof.

2. There is another Point in this Case which concerns the King and all the People of England, that is, whether the Defen∣dant here can be charged with a Distress (supposing this Duty is to be paid to the King) before any account of these Hearths is transmitted into the Exchequer, which first ought to be done; or otherwise the consequence will be, that the Officer may demand and take as much as he will at his pleasure, and the King may be likewise prejudiced in his Revenue; for as the Collector may have from the Subject more than he ought, and more than he is empowered to take by the Law, so he may pay the King less.

The Act directs, That an Account shall be taken by the Of∣ficers, and examined by the Constables; then to be transmitted to the Sessions, there to be enrolled, and from thence sent into the Exchequer; now what occasion was there of all this So∣lempnity, if that the King was entituled to a Distress upon a bare refusal?

This being a Rent Charge upon a Mans Inheritance, the King shall not be entituled to it but by matter of Record; for he cannot take or part with any thing, neither can he have any Estate or Profit rendered him out of another Mans Estate, but by matter of Record; so that it seems by the Act that this ac∣compt is necessary to be transmitted into the Exchequer; and

that the King is not entituled to a Distress for this Duty un∣til that be actually done, which is not only matter of Informa∣tion to the Crown, but in some measure intitles him to it, because there is a Penalty of five pounds laid upon the Officer, who shall neglect to bring in such accompt, which shews that the Subject ought not to be charged before; for which reasons Iudg∣ment was prayed for the Plaintiff.

But on the other side it was argued by Mr. Holt and the At∣torny General, that empty Houses should pay this Duty: For the Attorny General said, that the Words in the Act were so express, that he was of Opinion that the very reading of them would clear the Point in question.

In their Arguments two things were considered upon the Statute of 14 Car. 2.

1. First the general Clause which gives the Duty in the Body of the Act.

2. The discharge in the Proviso.

And if this be in the Body of the Act, and not excepted in the Proviso, then the Duty is to be paid; and as to that it was said, that this Duty was given in general Words, by which it appears, that there was a design and intent to charge empty Houses, for every dwelling House, Edifice, or House whatsoever is to pay this Duty; and that if every House, why not an empty House?

'Tis true, a Dwelling House is not a House wherein there hath not been an Inhabitant, but wherein some body doth actually live; and if a Man furnishes a House very well, if 'tis not inhabited, it is notwithstanding an empty House, and such a House as to some purposes in the Law is not a dwelling House; for 'tis not a Mansion House, so as to make it Burglary for the break∣ing of it open.

By the second Clause, Every Owner or Occupier is to sub∣scribe the Account to be sent into the Exchequer, by which it appears that those Words Owner and Occupier are not there used in a different sense, for if the Occupier were only lyable, the Owner need not look after the signing the accompt of every Hearth.

The third Clause takes notice, That if it should happen there be no Occupier, then the Officer may go into the empty House to examine if the account given him be true; now if an account is to be taken of such Houses as are charged by this Act, and an account is directed to be taken of empty Houses, then such empty Houses must be charged; and this seemed to them to be

the intent and meaning of the Parliament, for there being a Return to be made of empty Houses, if such had not been intend∣ed to be charged, they would have directed a Return also to have been made of the non-inhabitancy.

And therefore they thought that something more than an Oc∣cupier was here meant, for otherwise the Word Owner had not been put in; the meaning of which must be that dwelling Hou∣ses come within the charge of Occupiers, and empty Houses within the charge of the Owners.

Then as to the Proviso, That the Duty hereby arising shall be charged only upon the Occupiers and Dwellers of such Houses, their Executors and Administrators, that can in no sort extend to discharge an empty House, because 'tis not the subject matter of the Proviso; for the design and purpose of it was not to discharge the Duty, but to transfer the charge upon the Tenant where the House was inhabited; for if a contrary con∣struction should be made, then no Duty should be paid at all by the Owner himself if he should live in his own House.

In the Case of a Modus decimandi 'tis payable by the Occu∣pier and Possessor of the House, and the Landlord is never charged but where there is no Occupier.

As to the Objection, That 'tis hard to pay a Duty where a Man has no Profit; it was answered, That the Act took care that Men should not stop up their Chimnies when once made, and that this Duty was paid for many Chimnies which were never used, and what Profit can a Man have of a Chimny he never useth? If there had been an Act that so much should be paid for every Window, 'tis all one whether it had been for pro∣fit or pleasure, or whether the Window had been used or not; and there is as much reason that a Man should pay for Houses never Inhabited, as for such as have been Inhabited and are afterwards without Tenants.

This Act ought therefore to receive a favourable Constructi∣on; the Preamble whereof mentions that it was for the encreasing of the Kings Revenue, which is pro bono publico, and which is for the Peace and Prosperity of the Nation, and the protection of every single person therein; and though a particular Inconve∣nience may follow, the Party ought to submit. When a Man builds a House, he proposes a Profit, and 'tis not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant.

Object. As to the other Objection that was much relied on, viz. where the Act speaks of an Accompt to be given, it mentions both Owner and Occupier; but where it directs the Payment of

the Duty the Occupier only is named, by which it was inferred that he alone was chargeable.

Answ. In 16 Car. 2. cap. 3. Owner, Proprietor and Occupier are used promiscuously, wherein it is provided that they shall not be charged unless within two years after the Duty accrued; now if the Owner was not chargeable, why is he mentioned there?

As to the second Point, they conceived that the Duty being payeable to the King, he had a remedy by distress before the Accompt was certified into the Exchequer; for the Return was to inform the King what advantage he maketh of his Revenue, and no Process issued upon it; besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain. The King hath no benefit by returning of the Account, that being only intended to prevent his being cheated, so that 'tis not to entitle but to inform him; 'tis only to return a just and true account; not but that it may be levied, and the King entitled before; and 'tis no inconvenience to the Subject, if there be no such Account returned, for if the Officer distrain for more Hearths than in truth there are, the Subject has a proper remedy against him.

The King suffers when Returns are not made of such Du∣ties as he ought to have for the support of his Dignity; and because he is lyable to be defrauded in the managing of his Duty, is it reasonable that he should lose all?

As to what was said of the Kings taking by matter of Re∣cord; 'tis true, if he divest an Inheritance, as in case of At∣tainder, it must be by Record; but here the very Duty is given to him by the Act it self, which makes it a different Case.

If the King should be seised in Fee of a great Wast, which happens to be improved by his Tenants, and thereby Tythes become due, it may be as well said, that he shall have no Tythes without Record, as to say he shall have no Hearth-Mony for Houses newly erected, whereby his Revenue is increased. For which Reasons Iudgment was prayed for the Defendant, and upon the second Argument Iudgment was given accordingly for him, That empty Houses are subject and lyable to this Duty.

Astry versus Ballard.

IN an Action of Trover and Conversion for the taking of Coals, upon Not-Guilty pleaded, the Iury found a special Verdict. The Case was thus.

Viz. That one J. R. was seised in Fee of the Manor of Wester∣ly, and being so seised did demise all the Mesuages, Lands, Tenements and Hereditaments that he had in the said Manor, for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor, Mesuages, Lands, Tene∣ments, Commons, and Mines, but in the Lease it self to R. the Word Mines was left out. Afterwards the Reversion was sold to the Plaintiff Astry, and his Heirs by Deed enrolled; and at the time of this demise there were certain Mines of Coals open, and others which were not then open; and the Coals for which this Action of Trover was brought, were digged by the Lessee in those Mines which were not open at the time of the Lease; and whether he had power so to do, was the Question.

It was said, That when a Man is seised of Lands where∣in there are Mines open, and others not open; and a Lease is made of these Lands in which the Mines are mentioned. 'Tis no new Doctrine to say, that the close Mines shall not pass; Mens Grants must be taken according to usual and common intend∣ment, and when Words may be satisfied, they shall not be strain∣ed farther than they are generally used, for no violent Constructi∣on shall be made to prejudice a Mans Inheritance, contrary to the plain meaning of the Words.

A Mine is not properly so called 'till it is opened, 'tis but a Vein of Coals before; and this was the Opinion of my Lord Coke in point, in his first Inst. 54. b. Where he tells us, that if a Man de∣mises Lands and Mines, some being opened and others not, the Lessee may use the Mines opened, but hath no power to dig the unopened Mines, and of this Opinion was the whole Court; and Iustice Twisden said, That he knew no reason why my Lord Coke's single Opinion should not be as good an Au∣thority as Fitzherbert in his Nat. Br. or the Doctor and Student.

Ipsley versus Turk.

IN a Writ of Error upon a Iudgment in an Inferiour Court, the Error assigned was, That the Mayor, who was Iudge of the Court, did not receive the Sacrament at any Parish

Church, nor file any Certificate, so that he was not Mayor; and Iudgment being given against the Defendant before him, it was therefore Coram non Judice, like the Case of Hatch and Nichols Roll. Abr. 1 part tit. Error 761. Where, upon a Writ of Error brought upon a Iudgment in an Inferiour Court, the Error assigned was, that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo, who was not Steward, and that was held to be an Error in fact.

But on the other side it was insisted that this was not Error, because the Acts of the Mayor should not be void as to Stran∣gers. The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants, disables the Party who is not qualified according to the Act to hold an Office, and if he execute the same, afterwards upon complaint made, and Conviction he shall forfeit 500 l. so that as to himself, whatever he doth in his Office is void; but it was never the intent of the Act to work a Mischief or Wrong to Strangers, for the Law favours what is done by one in reputed authority; as if a Bishop be created, who upon a Presentation made admits a Parson to a Benefice or collates by Lapse, the former Bishop not being deprived, or removed, such acts are good and not to be avoided, Cro. Eliz 699.

But admitting it to be an Error, it cannot now be assigned for such, because the Parties in Pleading have allowed the proceed∣ings to be good upon Record, and there is Iudgment against the Defendant, but if he had been taken upon that Iudgment, he might have brought an Action of false Imprisonment, 2 Cro. 359. Cro. Eliz. 320.

Wild Iustice, You shall not assign that for Error which you might have pleaded, especially having admitted it by pleading; and one Musgrave's Case was cited, which was, that there is an Act of Parliament which lays a Tax upon all Law proceedings, and makes them void, if the Kings Duty be not paid, and it was adjudged, That if the Duty was not paid, but admitted in pleading, you shall not afterwards alledge what before was admitted, viz. That the Duty was not paid.

Vpon a Writ of Error in Parliament it cannot be assigned for Error, that the Chief Iustice of the Kings-Bench, had not taken this Oath; the same might be also of a Writ of Error in the Exchequer Chamber, for an Error in Fact cannot be there assigned; but at the last the Iudgment was Reversed: See the Reasons thereof by the Chief Iustice Jones in his Reports, folio 81.

Higginson versus Martin, in C. B.

IN an Action of Trespass and false Imprisonment, the De∣fendant justifies by Process issuing out of the Court of Warwick, upon a Iudgment obtained there, and sets forth, that there was a Plaint there entered in placito transgressionis, to which the Defendant appeared, super quo taliter processum fuit, that Iudgment was given against him, upon which he was ta∣ken and Imprisoned.

The Plaintiff replies, That the Cause of Action did not arise within the Iurisdiction of that Court.

The Defendant rejoyns, that the Plaintiff is now estopped to say so, for that the Declaration in the Inferiour Court against the now Plaintiff, did alledge the cause of Action to be infra jurisdictionem of the Court, to which he pleaded, and Iudg∣ment was given against him: The Plaintiff demurrs.

And Newdigate Serjeant took Exceptions to the Plea.

1. 'Tis said a Plaint was entered in placito transgressionis but 'tis not said what kind of Trespass it was, whether a clau∣sum fregit or other Trespass.

2. 'Tis said that the Defendant appeared, super quo taliter pro∣cessum fuit, that Iudgment was given for the Plaintiff, and no mention was made of any Declaration; and the pleading tali∣ter processum est in an Inferiour Court, is not good.

3. The Iustification is ill, because the Inferiour Court had no Iurisdiction, and so the Proceedings are coram non Judice, for the Plaintiff in his Replication saith, That the Trespass for which the Recovery was had in the Court of Warwick, was done at a place out of the Iurisdiction of the Court, which the Defen∣dant hath admitted, by relying on his Plea by way of Estoppel.

4. It did not appear by what Authority the Court at War∣wick was held whether by Grant or Prescription.

These Exceptions were answered by Serjeant Hopkins, and first he said, That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis, which was well enough.

Secondly, taliter processium fuit is the shorter and better way of Pleading, and therefore in a Scire Facias nothing is recited but the Iudgment; 'tis true, in a Writ of Error the whole Re∣cord must be set out, but that is not necessary here.

Thirdly, 'tis too late now to question the Iurisdiction of the Inferiour Court, after the Party hath admitted it below; he ought first to have pleaded to the Iurisdiction, but now is Estop∣ped by his own admittance there; and since Iudgment is given upon it, 'tis not now to be questioned; but however, this be∣ing in the Case of an Officer, if it was out of the Iurisdiction he is bound to execute the Process of the Court, and so this is a good excuse for him, Dyer 61. 10 Co. 77.

But let the Pleadings be good or bad, if the Declaration here be ill, the Plaintiff cannot have Iudgment; and that it was so, he said that the Writ alledged an Imprisonment ge∣nerally, but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant, and the Prothonotaries said, that the Writ used always to mention donec, &c.

But the Court were all of Opinion, that the Count was well enough, for there was no matter therein contained which was not in the Writ; the Imprisonment was the Gist of the Action, and the donec, &c. might have been given in Evidence, because 'tis only an aggravation and a consequence of the Imprisonment, so that the Count is not larger, but more particular than the Writ: And as to the two first Exceptions, the Court was al∣so of Opinion, that there was no difficulty in them, or in the last Exception, but thought the Plea was well enough as to those: And they also agreed that the Officer in this Case was to be discharged, for though the Process be erronious, yet he is to obey and not to examine, 2 Cro. 3. Weaver versus Clifford: The great doubt in this Case was upon the third Exception as to the point of Iurisdiction, and whether the other Defendant, who was the Plaintiff below, should be likewise discharged, was the Question.

And as to that, the Chief Iustice, and Wyndham Iustice were of Opinion, That this was no good justification as to the Plain∣tiff below; for if the cause of Action did arise without the Iuris∣diction, of which he is bound to take notice, the proceedings quoad him, are all coram non Judice, and he cannot justifie the ser∣ving of any Process; so that if the Trespass was done out of the Iurisdiction of the Court, the Defendant below may bring an Action against the Plaintiff, and is not concluded here by the pro∣ceedings there, but may alledge the cause of Action to arise out of the Iurisdiction; and as to his being Estopped by admitting of the Iurisdiction below, that cannot be, because an admittance cannot give the Court a Iurisdiction where it had none originally, and so he said it was resolved in one Squib's Case, in a special Verdict.

He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that Iurisdiction; and if the Party after a Verdict below prays a Prohibition, and al∣ledges that the Court had no Iurisdiction, a Prohibition shall be granted; and 'tis no Estoppel that he did not take advantage of it before, 1 Roll. Abr. 545.

But Iustice Atkins and Scroggs were of another Opinion, they agreed that if an Action be brought in an Inferior Court, if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so, but rather to be without, if not alledged to be within the Iurisdiction, and here in the Plea 'tis not shewn at all; so that as the Case stands upon the Plea the Proceédings are coram non Judice, and there is no legal Authority to war∣rant them, and by consequence the Officer is no more to be ex∣cused than the Party, because also 'tis in the Case of a parti∣cular Iurisdiction: And so it hath béen adjudged upon an Escape brought against an Officer of an Inferior Court, wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston, and that he had Iudgment and Execution, and the Defendant suffered him to escape; this De∣claration did not charge the Defendan, because the Bond was not alledged to be made infra Jurisdictionem Curiae; for though such an Action is transitory in its nature, yet the Proceedings in an inferior Court upon it are coram non Judice, if it doth not appear to be infra Jurisdictionem, 1 Roll. Abr. 809. though in the Case of a general Iurisdiction it might be otherwise.

But here the Rejoynder doth help the Plea; for the Plaintiff having replied that the Trespass was committed out of the Iu∣risdiction, and the Defendant having rejoyned that he had al∣ledged in his Declaration below that the Trespass was done within the Iurisdiction, 'tis now all one Plea, and the Plaintiff hath confessed it by his Demurrer; so that in regard it was al∣ledged below and admitted there, 'tis a good Plea both for Of∣ficer and Party, and the Plaintiff cannot now take advantage of it, but is concluded by his former admittance, and it shall not be enquired now whether true or false.

And as to the taliter processum fuit they all held it well enough, and that there was no necessity of setting out all the Proceedings here as in a Writ of Error.

And as to the last Exception 'tis said that the Burrough of Warwick is antiquus Burgus, and that the Court is held there secundum consuetudinem, which is well enough.

Jones's Case.

IT was moved for a Habeas Corpus for one Jones, who was com∣mitted to New Prison by Warrant from a Iustice of Peace for refusing to discover who intrusted him with the keeping of the Keys of a Conventicle, and for that he had been instrumental to the Escape of the Preacher; he was asked by the Iustice to give Security for his Good Behaviour, which he also refused, and thereupon was committed.

The Chief Iustice doubted that a Habeas Corpus could not be granted in this Case, because it was in a criminal Cause of which the Court of Common Pleas hath no Iurisdiction, and that seemed to be the Opinion of my Lord Coke, 2 Inst. 55. where he saith it lies for any Officer or priviledged Person of the Court.

There are three sorts of Habeas Corpus in this Court; one is ad respondendum, which is for the Plaintiff, who is a Suitor here against any Man in Prison, who is to be brought thereupon to the Barr and remanded if he cannot give Sureties.

There is another Habeas Corpus for the Defendant ad faciend' & recipiend'; as to this the same Iurisdiction is here as in the Court of Kings Bench; if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate; but if he be re∣mote, it must then be returnable in the Court at a certain day; these are the Habeas Corpus's which concern the Iurisdiction of this Court, and are incident thereunto.

There is another which concerns Priviledge, when the Party comes and subjects himself to the Court to be either bailed or discharged, as the Crime is for which he stands charged; and if he be priviledged, this Court may examine the Case and do him right; if a private man be committed for a criminal Cause we can examine the Matter and send him back again. Before King James's Reign there was no Habeas Corpus but recited a Priviledge, as in the Case of Priviledge for an Attorny; so that if this Court cannot remedy what the Party complains, 'tis in vain for the Subject to be put to the trouble when he must be sent back again; neither can there be any failure of Iustice, be∣cause he may apply himself to a proper Court; and of the same Opinion were Wyndham and Scroggs.

But Iustice Atkins was of another Opinion, for he could see no Reason why there should not be a Right to come to this Court as well as to the Kings Bench.

And that Vaughan, Wild and Archer Iustices, were of Opinion that this Court may grant a Habeas Corpus in other Cases be∣sides those of Priviledge.

Afterwards the Prisoner was brought to the Court upon this Habeas Corpus, but was remanded, because this Court would not take Sureties for his Good Behavior: The Chief Iustice said that when he was not on the Bench he would take Sureties as a Iustice of Peace: And Monday, late Secondary informed him that Iustice Wild when he sate in this Court did once take such Sureties as a Iustice of Peace.

Anonymus.

IT was the Opinion of the Chief Iustice North, that in a Replevin both Parties are Actors; for the one sues for Da∣mages, and the other to have the Cattle, and there the place is material; for if the Plaintiff alledges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo & forma, but then he can have no Return; for if he would have a Retorn' Habend' he must deny the taking where the Plaintiff hath laid it, and alledge another place in his Avowry.

Sir Osborn Rands versus Tripp.

THE Plaintiff was a Tobacconist and lived near Guild-Hall, London; he married the Daughter of the Defendant, who was an Alderman in Hull, and had 400 l. Portion with her; after the Marriage the Defendant spoke merrily before thrée Wit∣nesses, That if his Son-in-Law would procure himself to be Knight∣ed, so that his Daughter might be a Lady, he would then give him 2000 l. more, and would pay 1000 l. part thereof presently upon such Knighthood, and the other 1000 l. within a year after: (it being intended when the Plaintiff should by his Trade get an Estate sufficient to qualifie him for the Dignity of a Knight.)

The Son-in-Law without acquainting the Defendant did about nine Months afterwards procure himself to be Knighted, and brought an Assumpsit for the 2000 l. which was tried before the

Chief Iustice North at Guild-Hall, and the Iury gave 1500 l. Damages.

And now Serjeant Maynard moved for a new Tryal upon the Affidavit of the Defendant that he had found out material Wit∣nesses since the Trial, and that such Witnesses, as he had ready at the Trial, could not get into Court; because of the great Tumult and Disorder there with a Multitude of People, by reason whereof his Council could not be heard from the noise, and when they offered to speak were as often hissed.

The Chief Iustice thought it was a hard Verdict, for he was not clearly satisfied that the Agreement was good, it being only for Words which were spoken by the Old Man when he had but a weak Memory; and thereupon a new Tryal was granted, be∣cause the Chief Iustice thought it was fit so to be.

Basket versus Basket.

DEBT upon a Bond with a Condition to make an Assu∣rance of an Annuity of 20 l. per annum to the Plaintiff within six Months after the death of M. B. and if he refuse when requested by the Plaintiff, then to pay 300 l. and if he fail in payment thereof the Bond to be forfeited.

The Defendant pleads that all the six Months he was a Pri∣soner at Morocco in Barbary, and that after his Return he re∣quested the Defendant; and to this Replication the Defendant demurred.

And Serjeant George Strode maintained the Demurrer.

The Question was, whether the Plaintiff by neglecting to ten∣der a Grant of the Annuity to the Defendant hath not dispensed with the whole Condition; and he held that it was dispensed withal, and that no Request being made the Bond could not be sued at the Common Law, and therefore the Replication was ill.

'Tis not so much a disjunctive Condition to do one thing or another, but the last Clause is a Penalty to inforce the first; for seeing the Annuity is to be but 20 l. per annum for a Life, and yet that 300 l. is to be paid in case that be not granted, this proves it to be only a Penalty, because Annuities at the highest value are but at eight years purchase, whereas this is fiftéen years purchase, so that the 300 l. could never be intended as a

Recompence for the Annuity; neither could the Defendant pos∣sibly save the Condition, because the same time is limited both for the Paymenr of the 300 l. and granting of the Annuity, viz. within six Months; and the Plaintiff hath to the utmost time to request the executing the Grant, and therefore the other cannot pay the Mony before.

But taking the Case to be that this is a disjunctive Condi∣tions; yet since Conditions are always made in favour of the Obligor, the power of Election even in such Cases is left wholly in him; but according to such Constructions, as would be made for the Plaintiff, the Election is gone from the Defendant, and left in the Obligée; for if he do not request the Annuity, then the 300 l. is to be paid, and this is directly against the Rules of disjunctive Conditions; and the Case of Greeningham and Ewre is express in Point, where the Condition of a Bond was, that if the Obligor delivered to the Plaintiff thrée Bonds by such a day, or gave him such a Release of them, as the Plaintiffs Council should advise, before the said day, that then, &c.

The Defendant pleads nothing as to the delivery of the Bonds, but saith, that the Plaintiffs Council advised no Release; and upon a Demurrer this was adjudged for the Defendant, because in all Obligations with a Penalty the Election is always in the Obli∣gor; and this being a disjunctive Condition each part is likewise in his Election; for if the Obligee should not tender the Release, the other is not bound to deliver the Bonds; and if he should tender it, then the Obligor may either deliver the Bonds or exe∣cute the Release, which he pleaseth, 4 H. 7. 4.

If a Man enter into Bond with Condition to marry Jane by such a day, and the Obligee marry her before the day, the Condition is saved; but 'tis otherwise if a Stranger had married her before that day: The Act of God and the Act of the Obligée in many Cases dispense with Conditions, as 5 Co. 21. b. if a Parson be bound in a Bond conditioned to resign his Church to A. in con∣sideration of a certain Pension agreed on, and the Parson re∣fuses; the Court was of Opinion that he need not resign till he was sure of his Pension by Deed which they held ought to be first tendred unto him.

So a Man covenants to grant such an Estate to his Wife or to leave her worth so much Mony, if she survive him, if she dies before him the Condition is not broken, though he did not make such Grant: In the Case of Warren and White it was lately adjudged in the Kings Bench, that where Warren was in∣debted to Warner, and White became bound with him to pay the Mony before the 25th day of December then next following;

but if he did not pay it, that then Warren should appear the next Hillary Term following to Warner's Action; Warren dies after the 25th of December, but before the Term; and it was held that the Bond was not forfeited, because the Obligor had Election to do either the one or the other, and the performance of the one becoming impossible by the Act of God, the Obligation was saved.

If the Case of Moor and Moorcomb, Cro. Eliz. 864. should be objected, where the Condition of the Bond was, that the De∣fendant should deliver to the Plaintiff a Ship before such a Feast, or in default thereof pay at the same Feast such a Sum as a third person therein named should adjudge, which third person ap∣pointed no Sum to be paid, and yet there it was adjudged for the Plaintiff that it did not dispense with the whole Condition.

Which Case he agreed to be Law, because there the valuation and worth of the Ship and the Mony to be paid was by the ap∣pointment of a Stranger, and the Condition being for the be∣nefit of the Defendant he is to procure the Stranger to make an appointment what Sum should be paid, or to deliver the Goods, otherwise the Bond is forfeited, and he hath expresly agreed to do the one or the other.

But this is not like the Case at the Barr, where 'tis not a Stranger, but the Obligee himself that must procure the Con∣veyance; for 'tis to be advised by his Council, and to be done at his Costs; and therefore in Lamb's Case it was held that if a Man be bound to give such a Release before such a day as the Iudge of the Admiralty shall direct; there 'tis no Plea to say that he appointed none, for the Iudge being a Stranger to the Condi∣tion, the Defendant is to apply himself to him, having undertaken to perform it at his peril, which is the same Resolution with Moor's Case in Crook.

So that he took it for a Rule in all Cases, that where the Act of God or of the Obligée discharges the Obligor from one part of a disjunctive Obligation, that the Law discharges him of the other; and therefore prayed Iudgment for the Defendant, Dyer 361.

Serjeant Pemberton contra. It appears that one thing or the other was to be done in this Case; for if the Plaintiff demanded and tendred an Annuity, the Defendant was to seal it; and if he did not tender it, then likewise the Defendant was to do some∣thing, viz. to pay 300 l. So that the Plaintiff was either to have the Annuity or the Mony.

He agreed that where the Obligor hath the Election, if in such Case the Obligée shall wilfully determine it, that the Bond is thereby discharged.

But if a Stranger take away the Election, 'tis no discharge, for in such case the other part is to be performed.

In this case the Plaintiff hath done no wilful Act to deter∣mine the Defendants Election, but all which is pretended is that he hath not done something necessary to be performed, which is, that he hath not made a request.

But by his omission thereof, the Defendants Election is not taken away, for though no request was made within the six Months, yet the Defendant might have prepared a Grant of the Annuity himself, and have offered it to the Plaintiff, within the six Months, upon the last part of the day; and if he had thus set forth his case, and alledged that the Plaintiff made no request, nor tendered him a Grant of the Annuity to Seal, this had been a good performance of the Condition, for he had done that which was the substance, which, though it was to be done at the Plaintiffs charge, yet the Defendant might have brought an Action for so much Mony by him laid to the use of the other; and the Cases put in the principal Case in Moor 645. are expressly for the Plaintiff in this Case, where the Iudgment was, That if there be a Statute with a Defeazance, to make such Conveyance as the Council of the Conusee shall direct, the Cognisor must prepare the Conveyance, if the other doth not; and there is a Case put where a thing was to be done at the Costs of the Plaintiff, yet the Defendant did it at his own Charge, which he recovered of the other.

North Chief Iustice, and the whole Court were of Opinion that the Plea was good, because the Defendant had the bene∣fit of Election, and the Plantiff not making the request within the six Months, had dispensed with one part of the Condition, and the Law hath discharged the Defendant of the other part; and they relied upon the Case of Grenningham and Ewre, which they held to be good Law, and an Authority express in the very point.

In this Case the Obligee was to do the first act, Viz. To make the request. Where the Condition is single concilium non dedit advisamentum is a good Plea to discharge the Defendant; so here the Condition is but single, as to the Defendant; for though it be disjunctive, yet the Plaintiff hath taken away the benefit of Election from the Obligor of doing the one, and there∣fore he shall be excused from doing the other.

The Pleading as alledged by the Council of the Plaintiff, would not have been a good performance of the Condition, for if one be bound to Convey as the Council of the other shall

advise, and he makes the Conveyance himself, this is not such a Deed as was intended by the Parties, and so no performance of the Condition.

But however the Defendant need not plead it, for he is not bound so to do.

Here if the Plaintiff had requested the Sealing of such a Grant of an Annuity, even the Defendant had liberty either to execute it, or to pay the 300 l. and where the Election is on the Obligors part, neither the act or neglect of the Obligee shall take it away from him; for it would be unreasonable that the Obligee should have his choice, either to accept of the Annuity or the 300 l. when 'tis a known Rule, That all Conditions where there is a Penalty in the Bond, are made in favour and for the benefit of the Obligor, and the 300 l. in this case to be paid upon the refusal of the Defendant to make such Grant, is in the nature of a Penalty to enforce him to do it.

The principal Case in Moor 645. was agreed to be Law, but the Rule there put was denied, as not adequate to the present Case, which was, that if by the Act of God, or of the Party, or through default of a Stranger, it becomes impossible for the Obligor to do one thing in a disjunctive Condition, he is notwithstanding bound to do the other.

This is true only as to the last Case, but not to the two first; and for an Authority Laughter's Case was full in the Point, which is, that when a Condition consists of two parts in the disjunctive, and both are possible at the time of the Bond made, and afterwards one becomes impossible by the Act of God, or of the Party, the Ob∣ligor is not bound to perform the other part.

And Iudgment was given for the Defendant.

Smith versus Tracy. In Banco Regis.

IN a Prohibition; The Case was: A Man dies intestate having three Brothers of the whole Blood, and a Brother and Sister of the half Blood; and the Question was whether they shall be admitted to a distribution in an equal degreé.

Mr. Holt argued that they were all in aequali gradu, because before the Act of Distribution the Ordinary had power to compel the Administrator to give and allot filial Portions to the Children of the deceased out of his Estate. And by the Civil Law such provision is made for the Children of the Intestate that the Goods, which either the Father or Mother brought to each other

at the Marriage, shall not remain to the Survivor, but the use and occupation of them only during Life, for the Property did belong to the Children.

By the Statute of 21 H. 8. cap. 5. the Ordinary is to grant Administration to the Widow of the Intestate, or to the next of his Kin, or to both, as by his discretion he shall think good, and in Case where divers persons claim the Administration as next of Kin, which be in equal degree, the Ordinary may commit Ad∣ministration to which he pleaseth, and his power was not abridged, but rather revived by this late Act, by which 'tis Enacted, That just and equal distribution shall be made amongst Wife and Chil∣dren, or next of Kin in equal degree or legally representing their Stocks pro suo cuique jure; and the Children of the half Blood do in the Civil Law legally represent the Father, and to some purposes are esteemed before the Vncles of the whole Blood.

'Tis no Objection to say, that because the Law rejects the half Blood as to Inheritances, therefore it will do the same as to personal Estates, because such Estates are not to be determined by the Common but by the Canon or Civil Law, and if so, the half Blood shall come in for distribution, for this Act of Parlia∣ment confirms that Law.

Winnington Sollicitor General contra. He agreed that before this Act the half Blood was to have equal share of the Intestates Estate; but that now the Ordinary was compelled to make such distribution, and to such persons as by the Act is directed, for he had not an original power to grant Administration in any case that did belong to the Temporal Courts, but it was given to him by the Indulgence of Princes, not quatenus a Spiritual Person, Hen∣sloes Case, 9 Co. Bendl. 133.

And if he had not power in any Case, he could not grant to whom he pleased. But admitting he could, his power is now abridged by this Statute, and he cannot grant but to the Wife and Children or next of Kin in equal degrée or legally representing their Stocks.

Now such legal representation must be according to the Rules of the Common, and not of the Civil Law; for if there be two lawful Brothers and a Bastard eigne, and a Question should arise concerning the distribution of an Intestates Estate, the subsequent Marriage according to the Law in the Spiritual Court would make the latter legitimate, and if so a legal Re∣presentative amongst them; but this Court will never allow him so to be.

But the Court were all of Opinion that in respect of the Fa∣ther the half Blood is as near as those of the whole, and there∣fore they are all alike and shall have an equal distribution; and that such Construction should be made of the Statute as would be most agreeable to the Will of the dead person, if he had devised his Estate by Will; and it was not to be imagined if such Will had been made, but something would have been given to the Children of the half Blood: And thereupon a Consultaion was granted.

Anonymus. In C. B.

FAux Judgment: viz. Serjeant Turner took this Exception, that the Plaintiff in the Court below had declared ad dam∣num 20 l. whereas it not being a Court of Record, and being sine Brevi the Court could not hold Plea of any Sum above 40 s. and for this Cause the Iudgment was reversed.

Notes

• Que Estate, where 'tis pleadable. Mod Rep. 231.
• Ex parte Quer.
• Amend∣ment not after issue joyned.
• Curia.
• Time where 'tis made par∣cel of the issue not good.
• Postea.
• 2 Sand. 317, 318.
• Admini∣strator sells a Term, af∣terwards an Executor appears and renounces, yet the Sale was adjudg∣ed void. Jones 72. 1 Vent. 303.
• 6 Co. Pack∣mans Case.
• Ex parte Quer.
• Ex parte Def.
• Godolph. 59.
• 5 Co. Mid∣dleton's Case.
• 2 Anders. 150. Case. 83.
• Mod. Rep. 214.
• 2 Roll Abr. 399.
• Godolph. 141.
• Judgment.
• No new Trial in an Action of Scandalum Magnatum. Mod. Rep. 232.
• Curia.
• Ca. 33.
• 12 Co. 132.
• 4 Co.
• Ex parte Quer.
• Maxim.
• Vide Ante.
• 4 Co. 13. b. 2 Cro. 196.
• Hill. 16 Car. 2 Rot. 1269. Affirmed in a Writ of Er∣ror in B R.
• Argument at the Bench.
• Sid. 233.
• Amend∣ment after a Demurrer joyned and before Judg∣ment given, good.
• 2 Cro. 360.
• Harding and Ferne, Postea.
• Sid. 107.
• Traverse must be where the Charge in the Decla∣ration is not fully an∣swered.
• 2 Sand. 28.
• 2 Cro. 579. pl. 9. Sid. 341. 1 Sand. 338.
• Award, Ex∣ceptions thereunto overruled.
• Mod. Rep. 274.
• 2 Sand. 133.
• Antea.
• Feme Co∣vert made a Will and disposed of her Estate, and good.
• Mod. Rep. 211.
• Jones 126.
• Lessee for Years makes an Assignment of his Term where Debt lies upon the Con∣tract, and where not.
• Ex parte Def.
• Wardship cannot be where there is no de∣scent.
• Nota.
• Antea Ano∣nymus.
• Case lies not against the Sheriff though he take insuffi∣cient Bail, but must be amerced if the Defen∣dants do not appear. Mod. Rep. 227. Antea.
• Ex parte Def. Sid. 23. 2 Sand. 60. Cro. Eliz. 624.
• Antea, Page and Tulse.
• Cro Eliz. 672.
• 2 Cro. 286.
• Ex parte Quer.
• Antea.
• 23 H. 6. cap. 10.
• Priviledge of an At∣torny.
• Knights must be of the Jury where a Peer is con∣cerned.
• Smiths For∣ges are chargeable with the Duty of Fire-hearth
• Curia.
• Traverse shall not be upon a Tra∣verse, &c. Mod. Rep. 230.
• Ex parte Quer.
• Vaugh. 62. 1 Sand. 21, 22.
• Hob. 104. 1 Inst. 282. b. Vaugh. 62.
• Antea. Yelv. 122.
• 2 Cro. 202.
• 1 Sand. 14. 2 Sand. 295. Cro Car. 501.
• Ex parte Def.
• Old Nat. Br. 25. 1 Inst. 249.
• Vaugh. 57. Hob. 101.
• Jones 85. 1 Ventris 311.
• 7 Co. 21.
• Ex parte Def.
• Curia.
• Grants must be taken according to common intend∣ment. Jones 71.
• Antea.
• 5 Co. 12. San∣ders Case Roll. Abr. 2 part 816.
• What is ad∣mitted in pleading shall not be assigned for Error. Jones 81.
• Cro Car. 97. 2 Cro. 260.
• Sid. 253.
• If Cause of Action doth not arise with∣in the Juris∣diction, tho' Judgment is given be∣low, an Action will lie here.
• Ex parte Quer.
• Antea.
• Moor 422. Latch 180. Cro. Jac. 184.
• Ex parte Def.
• Curia.
• Sid. 151. Latch 181.
• Common Pleas can∣not grant Habeas Cor∣pus in Cri∣minal Ca∣ses.
• Vaugh. 157. 2 Inst. 53.
• Mod. Rep. 235.
• In Replevin both are Actors.
• New Trial granted.
• Disjunctive Condition, one part is discharged by the Ob∣ligee, the other part shall not be performed by the Ob∣ligor. Mod. Rep. 264.
• 1 Sand. 287.
• Wright and Bull, Postea.
• Cor. Eliz. 396 539. 1 Roll. Abr. 447. Poph. 98. Goldsb. 142.
• 1 Roll. Abr. 455.
• 1 Rol. Abr. 451.
• Moor 645.
• 5 Co. 23.
• 1 Roll. Abr. 452. lit. L. placito 6.
• Ex parte Quer.
• Judgment.
• 5 Co
• Distributi∣on shall be equally made a∣mongst the Children of the whole and half Blood. Mod. Rep. 209. Jones 93. 1 Ventris 307
• 22 & 23 Car. 2.
• Sid. 370, 371.