not well pleaded for it is pleaded too generally and not in the several circumstances thereof as it ought to be The Court commanded the Record to be read and upon Dyer of it answered That 2 Churches united by the Statute are both of spiritual promotion And the Statute of 12 Eliz doth not repeal the Statute of 38 H. 8. But let the party shew cause why the Iudgement should not be reversed Repeal and let us see a book Burton against Low Pasc 1649. Banc. sup Mich. 1649. rot 27. AN Action of Debt was brought upon a Bond taken by a Sheriff Dâ—muâ—â—er to a plea in debt upon a Sheriffs Bond. for the Defendant to appear in Chancery upon an Attachment issued out thence against him The Defendant pleads the Statute of 23 H. 6. That the Sheriff ought not to take Bonds of any but in speciall cases and that this Bond is void because it is taken against the Statute To this plea the Plaintiff demurred The question was whether an Atatchment out of the Chancery be within the Statute of 23 H. 6. The Court ordered cause to be shewn why Iudgement should not be given for the Plaintif upon this Demurrer Postea Edwards against Fallowes Pasch 1649. Banc. sup EDwards brought an Action upon the Case against Fallowes for speaking of these words of him viz. Arrest of Iudgement in an Action for words Edwards hath stollen my Axe from my Wood Pen and for causing him to be bound over to the Quarter-Session It was moved in Arrest of Iudgement that the words were not Actionable But the Court held they were actionable and gave Iudgement for the Plaintif Nisi causa c. Viccarye against Barns Pasch 1649. Banc. sup rot 1724. VIccarye being a Mercer by his Trade Arrest of Iudgement for words brought an Action upon the Case against Barns for speaking these words of him viz. Thou art a Cuckold and a Cuckoldly Rascall and dost owe more than thou art worth and are not able to pay thy debts Vpon non culp pleaded and an issue joyned and a verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable for for the first part of the words they are clearly not actionable and for the latter words they do not imply any shifting fraud or falshood and so cannot imply him to be a Bankrupt for though he doe owe more than he is worth and is not able to pay his debts yet he may be an honest man and he may have credit and friends to support him in his trade Apes and More Pasch 15 Car. and Iones and Iacob â—4 Car. The Court answered here is no fraud or deceipt implyed which do make a Bankrupt within all the Statutes touching Bankrupts and if there be a special loss alleged the words will be actionable otherwise not Bankrupt But let Iudgement stay till the other side move and bring us a book for the words are worthy consideration Postea Barnestone against Gale Pasch 1649. Banc. sup AN Action of Trespass was brought for chasing of the Plaintifs Hogs Arrest of Iudgement in Trespass the Defendant by way of justification pleads a special plea viz. That he did hunt them with a Dog by the command of his Master because the Plaintif did put them into his Masters ground to eat the Acorns there The Plaintif replyed that he had Common there Vpon this an Issue was joyned and a Verdict found for the Plaintif Replication The Defendant moved in Arrest of Iudgement upon this exception that the Plaintif in his replication hath not answered the bar for he prescribes only for Common of Pasture and pannage is no pasture and so he hath no right to the Acorns But Roll chief Iustice said If they have cause to eat the Grass they may also eat the Acorns there for they may be on the grounds and therefore it is a good justification And therefore let the Plaintif have Iudgement except cause be shewn to the contrary Bolton against VVills Pasch 1649. Banc. sup AN Action upon the Case was brought upon an indebitatus Assumpsit for a hundred and ninety Weathers sold by the Plaintif unto the Defendant at 18 s. Arrest of Iudgement in an Action upon the Case upon an Assumpsit a shéep which in all amounts to 190 l. Vpon an Issue joyned and a Verdict for the Plaintif It was moved in Arrest of Iudgement that the Declaration is not good but mistakes the promise for the Weathers promised to be paid for do not amount to the sum for which the Declaration is laid And also the issue is taken upon the immaterial part of the plea and the matter well pleaded is waived The Court answered That mistaking of a Iudgement is a mistake of the Clark and is not material Amendment but here the Declaration it self is mistaken and that is material for the Action is grounded upon the promise in Law upon the sale of the Shéep Declaration and not upon any new Contract and by the sale there wants 2 s. in every Sheep to make up the sum demanded therefore the Declaration is repugnant Nil capiat per billam nisi c. More against the Earl Rivers Pasch 1649 Banc. sup Mich. 1649. rot 588. VVIlson of Councel with More the Plaintif argued against the Plea of Péerage pleaded by the Earl Rivers as it is pleaded and took these Exceptions Argument against the plea of Peerage 1. It appears not here by the Retorn by what Warrant the Earl was committed and brought hither and so he hath no day in Court and so the Plea is not good 2ly It is not shewed by virtue of what Warrant he was taken 3ly The Plea is 1. In abatement of the writ 2ly In avoidance of the Act of the Iudge and the latter ought not to be questioned by Plea 3ly There is no Plea but bare words for he pleads the Common Law 4ly He pleads his Patent as Earl only by way of Argument 5ly He ought to shew the writ under the Seal testifying the matter 8 H. 6. f. 9. 6ly The investiture of the Earldom is the livery and seisin of the Earldom and he hath omitted the pleading the Ceremonies of the investing and so he doth not shew that he is an Earl By the Statute Law Capias viz. of E. 3. a Capias was given in debt and before that a Summons was the process The Councel on the other side said they had demurred to the Plea Summons and shewed the cause of their Demurrer but the Court reproved them because they had ruled the matter in Law should be argued at the Bar to enform their own Iudgements Adjournatur Postea Syms against VVilson Pasch 1649. Banc. sup Pasch 23 Car. rot 120. SYms brought an action upon the Case upon the Statute of Monopolies against Wilson Demurrer to a Plea in Bar in an Action upon the case The Defendant pleaded
Parish shall not be intended larger than a Vill if the contrary do not appear but here the contrary doth appear by the words of the Demand which are de rectoria de Imber Tymesbury infra parochia de Imber 3 4 Phillip Mary Dyer 142. and the different penning and expression of the Demand is to be observed Grant Abatement Variance for by that it appears there is a difference betwéen Imber and the Parish of Imber Grants Fitzh 87. by granting a Mannour with the appurtenances an Advowson will pass 19 E. 2. Tit. brief the Writ abated for variance betwéen the Writ and the Count. A 4th Error is to avoid the execution because of the Error in fait for the Hundred of Warmister doth extend to Sutton parva which is not named in the Writ and so the dammages are given for more than is demanded Dammages Intendment and it shall not be interpreted by Intendment and the Hundred is not demanded for the Vill relates to the Land and not to the Hundred 6 E. 3. 12. 8 Rep. 119. Bonhams Case and prays Iudgement for the Plaintiff in the Writ of Error Maynard of Councel with the Defendant desired time to argue and it was granted Postea Chambers against VVollaston Hill 23 Car. Banc. Reg. Mich. 22 Car. rot 21. CHambers brought an Action of Assault and Battery Demurrer upon the Custom of London pleaded and false imprisonment against Wollaston Wollaston pleads a special Plea of Iustification by vertue of a Custom in the City of London whereby he had authority to take and imprison him for disturbing an Election of Wardens of a Company and untill he would promise not to disturb such Elections afterwards To this Plea the Plaintiff demurs and takes these Exceptions 1. Custome The Custom pleaded is against Law for it appears not that there was any sute depending either by Bill or Endictment or otherwise and so the Custome is against Law Stat. 25 E. 3. C. 4. 25 E. 3. C. 3. and so was the Petition of Right 3 Car. And though the Customs of the City of London are confirmed by Statute-law yet illegal Customs are not confirmed 2ly Iudgement The Iudgement is against Law for by the Iudgement no remedy is given for the offence committed to the party against whom it is commited but only that the offendor shall be imprisoned untill he promise not to disturb Elections again 3ly The party committed is not within the Custom by the Defendants own shewing 4ly The Custome set forth is not prosecuted for the commitment is not for the Disturbance but because the party will not promise not to disturb again 5ly The detension of the party in prison is against Law Hales of Councel with the Defendant desired time to argue and the Court desired to have Books Holdigh against Chace Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 326. HOldigh brought an Action of Debt against Chace A special Verdict upon Non est sactum pleaded to a boad as an Executor upon an Obligation made to the Testator The Defendant pleaded non est factum and upon this Plea an Issue was joyned and a special Verdict found upon which Verdict the Case appeared to be this The Defendant Chace was bound in an obligation for the payment of a certain sum of mony unto A. B. and to I. S. joyntly I. S. dyes A. B. survives and makes Holdigh his Executor and dyes Holdigh brings an Action of Debt in his own name against Chace the Defendant and declares upon this obligation made to the Testator and to I. S. and doth not aver that the Testator did survive I. S. The Defendant pleads non est factum and the question was whether this be a good plea or no and to prove that it is no good plea Plea but that it was the deed of the Defendant the Councel for the Plaintiff cited these books 3. H. 6. 4. 35 H. 6. fol. 39. 46 E. 3. 7. 14 E. 4. fol. 4. 18 E. 2. 2. and put this case Two enfants joyntenants alien and one dies The surviver brings a dum fuit infra aetatem and counts of the Feofment of one of them and there the right was adjudged not to be severed by the Feoffement and so the writ good and in our case the matter of variance alleged goes to the writ and not the Action and it is now too late for the Defendant to take advantage of it and prayes Iudgement for the Plaintiff Roll Iustice said the issue is whether it be the Defendants deed or not and without doubt it is his deed and therefore let him shew cause why the Plaintiff should not have Iudgement Boone against Sheers Hill 23. Ba. Reg. Trin. 23 Car. rot 288. BOone brought an Action of Debt upon an obligation of 400 l. Demurrer to a Plea against Sheers and declares that the condition of the obligation was that the Defendant should make such a voyage with a Ship and pay certain monyes at his return and other conditions mentioned and for not performing the conditions he brings his Action The Defendant pleads in bar that the Ship was taken in the voyage per homines bellicosos Plea and demands Iudgement of the Action To this plea the Plaintiff demurred and shewed for cause that the Plea did not give answer to all the Declaration Demurrer Yard of Councell with the Defendant said the plea was good for the plea answers the whole condition of the Bond which was first to make the voyage with the Ship and then at his retorn to perform the other conditions and being hindred in the one he was not bound to perform the other Bacon Iustice Let us see a book to consider of Royston against Mees Hill 23 Car. Banc. Reg. ROyston makes a lease for years of certain lands to I. S. rendring rent Arrest of Iudgement in Debt the lessee makes his will and makes Mees the Defendant his Executor and dyes the Executor possesseth himself of the remainder of the term of the lands let and after the rent is behind Royston brings an Action of Debt against the Defendant and declares against him for the rent so behind in the debet and detinet and upon this an issue is joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement Declaration and shews for cause that the Declaration is not good because the Action being an Action of Debt brought against the Defendant as an Executor it ought to have been in the detinet and not in the debet and detinet But Wild of Councell with the Plaintif argued that the Declaration was good and the Action well brought in the debet and detinet and cited Brook title extinguishment 34. and the comment 526. and said it is an Action founded upon a lease by deed which was made by the Testator and cited 20 H. 6.10 H. 7. fol. 50. And that it is the constant form of charging
both the Plaintif and Defendant know the person of the man well enough Therefore let the Plaintif have his Iudgement Frank against Dixon Mich. 24 Car. Banc. Reg. FRank brought an Action of Trespass against Dixon for entring into his House and breaking open his Chest and taking away his Goods Arrest of Iudgement in an action of Trespass The Defendant pleaded a special Plea viz. that he did it by way of a distress for rent due unto him The Plaintif replyed de injuria sua propria absque tali causa upon this an Issue was joyned and a verdict found for the Plaintif It was moved at amicus Curiae that no Iudgement could be here given for Costs for the Plaintif because the Plaintif had made no title to the Goods Costs and these Cases were cited 44 Eliz. Trin. 7 Iac. Frith and Blackmans Case and 5 Car. Davis and Evans But Roll chief Iustice answered that he wondered why any body should so move for it is against the known practice of the Court and said that he must pay Costs otherwise there shall be vexation without amends Therefore let the Plaintif take his judgement Tyson Mich. 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an Action of Trespass and exception was taken to the Writ of Error Error to reverse a judgement in Trespass in that it was not brought by the same person against whom the judgement was given for the judgement was given against Evison with the addition of Gentleman and the Writ of Error is brought by Ivison Yeoman Addition Roll chief Iustice answered that Evison and Ivison sounded but as one and the same name and for the additions of Yeoman and Gentleman it is not material though they differ here but if it were the addition of Knight or Baronet there the difference would be something for that is made part of the name but the additions of Yeoman or Gentleman are additions ad placitum Cutsworth Mich. 24 Car. Banc. Reg. THe Plaintif declares against two Defendants against one of them Error to reverse a judgement in assault and battery for an Assault and Battery and against the other for taking away his Goods and upon not guilty pleaded the Plaintif had a verdict and a judgement against them both joyntly for dammages and this was assigned for error to reverse the Iudgement Roll chief Iustice said the Writ cannot be helped for the two Defendants cannot be joyned in one Action Ioyn in action because the Trespasses are of several natures and against several persons and the parties cannot plead to this Declaration Therefore the Plaintif nil capiat per billam Mich. 24 Car. Banc. Reg. THe Court was moved to quash an order of Sessions made To quash an order of Sessions that one should keep his reputed Child because he had kept him heretofore and it doth not shew either that he is his Bastard or his lawfully begotten Child The order was quashed because not made according to the Statute Mich. 24 Car. Banc. Reg. A Writ of Error was brought to reverse a judgement given in the Court at Exeter in an Action of Debt for rent Error to reverse a judgment in Debt The errors assigned were 1. That the names of the Iurors were not retorned upon the panel To this Roll chief Iustice answered it is not necessary to retorn their names though it was the old way to do so Retorn A second exception was that the Writ of Error is not well retorned for it is directed to the Maior and Bailifs of the City of Exeter and it is retorned by the Maior and two of the Baylifs whereas it should be by all of them Adjourned to the next Term. Mich. 24 Car. Banc. Reg. A Retorn of an order of Iustices of peace To quash an order of Iustices of the peace for keeping a Bastard-Child removed hither by a Certiorari was read and upon the reading the Court was moved to quash the order upon these exceptions 1. It doth not appear the order was made by two Iustices of the peace wherof one was of the quorum 2ly It doth not appear that the Iustices did inhabit near the place 3ly The order doth not direct how long the party shall keep the Child as the Statute doth direct it should The order was quashed upon the last exception The King against Humphryes Mich. 24 Car. Banc. Reg. THe Court was moved to quash an order of Sessions made at Derby for Parents to relieve their poor Children To quash an order of Sessions Deputation The exception taken was that the Statute appoints that the Iustices in the Sessions shall set the rate that is to be paid for their maintenance and that the Iustices here have not done but have transferred their authority over to other Iustices to do it which they cannot do and so the order made by the other Iustices is not good The Court said this is all one as if an Arbitrator should arbitrate another to make the arbitrement which is not good Therefore let the order be quashed The King against Golding Mich. 24 Car. Banc. Reg. THe Defendant shewed for cause why restitution should not be awarded against him upon an Endictment of forcible entry Cause why no restitution upon an Endictment of forcible entry That he will appear and plead to the Endictment Rull chief Iustice answered Then you must go to tryal the next Term and at your own charges Mich. 24. Car. Banc. Reg. VPon view of the Parliament Roll of the Statute of 2. Ed. 6. for payment of tithes Parliament Roll brought in court to examine a Declaration by Recital Parliament Roll. Iournal Book and comparing it with the Declarations in the causes betwéen Bowes and Broadhead and Burraston and Herbert it was found that the Statute was rightly recited notwithstanding what had béen objected and the Iournal Book of Parliament produced to the contrary and thereupon Iudgement was given in both cases and the Court said that they were to be ruled by the Parliament Roll and not the Iournal book And the same day in the Case between Bowyer and Tantulyar for the same reason the Court ordered the Parliament Roll to be brought in Court the next term to make it appear whether an adjournment of Parliament was well recited and would not credit the Iournal book Mich. 24 Car. Banc. Reg. PHillips moved the Court to quash an Endictment To quash an Endictment for Assault and Battery for an Assault and Battery made upon Baron and Feme and for pulling down of the house of the Baron and he took these exceptions 1. That the Endictment did conclude ad damnum ipsorum whereas it should be ad damnum of the Baron only But the Court answered that the Endictment is good though the words ad damnum ipsorum be left out A second Exception was that the Endictment doth not shew the time and place when the Assault
and damages are assessed and said It is true that the judgement is right entred but there is no Verdict to warrant the Iudgement and therefore it cannot be good and therefore let it be reversed if cause be not shewn to the contrary But we will not pronounce it now except the party desire it for his own expedition Ayre against Pyncomb Mich. 1649. Banc. sup AYre brought an Action upon the Case against Pymcomb for surcharging of a Common and for treading the Grass Arrest of Iudgement in an Action upon the case for surcharging a Common Assize Trespass upon the case The Plaintif had a Verdict The Defendant moved in Arrest of Iudgement That an Action of the Case doth not lie in this case but an Assize 2ly That an Action of Trespass doth not lie for a Commoner for treading of the Grass 3ly The Trespass is alleged to be done in quibusdam peciis pasturae and the quantity of them is not shewed To the first Exception Roll chief Iustice answered That the Plaintif may have an Assize or an Action upon the Case at his election although here be a disturbance of the Plaintifs freehold although that the antient books say the contrary And thereupon the Court gave Iudgement for the Plaintif except cause shewn to the contrary Brook against Hogg Mich. 1649. Banc. sup Hill 24 Car. rot 660. A Iudgement given in an Action of Debt upon an account in the Court of Knaresborough was reversed here Iudgement in an accompt reversed for Error in it because the Venire facias was Venire facias c. which in an Inferiour Court is not good Venire but it ought to say Venire facias duodecem probos et legales homines de c. so express all at large in words and not with an c. Note Many Iudgements given in Inferiour Courts have been here reversed upon the same exception But I only mention this for an authority to be cited upon occasion Ibson against Beale Mich. 1649. Banc. sup Hill 24 Car. rot 625. IBson brought a Writ of Error to reverse a Iudgement given against him for Beale in the Court at York in an Action of Debt upon an Obligation Error to reverse a Iudgement in debt and assigned for Errors 1. That the party hath not entituled himself to the Action 2ly The issue is not well joyned for the Plaintif saith ideo ponit se super patriam where he ought to say Issue petit quod inquiratur per patriam 3ly He concludes to his damage of l. 1. i. fifty pounds expressed in numerical Letters viz. l. for fifty and L. for pounds Damage instead of quinquaginti librarum The Iudgement was reversed upon the last Exception Stubs and Manklyn Mich. 1649. Banc. sup A Writ of Error was brought to reverse a Iudgement given in the Court at Owse-bridge in York Error to reverse a Iudgement in debt in an Action of Debt upon an Obligation and the Common Error only assigned But Roll chief Iustice upon Oyer of the Record took this exception That the Record was ideo praeceptum est Vicecomiti and it is not said in Curia and so it doth not appear to be the Process of the Court And for this Error the Iudgement was reversed Venire Topladye against Stalye Mich. 2649 Banc. sup Mich. 24 Car. rot 596. TOpladye brought an Action of Trespass quare clausum fregit pedibus ambulando c. against Stalye Demtirrer and argument upon a plea in Trespass The Defendant makes a special justification That he did enter into the Plaintifs Close to search for Shéep that were stollen from him To this Plea the Plaintif demurr'd and for cause shews that the justification is not good for it is not said by the Defendant that the Plaintif had stollen the Shéep or that he had any suspition that he had stollen them or that any other had stollen them driven them upon the Plaintifs land and so had no colour to come there to search for them and the Books of 17 E. 4. f. 1. and 27 H. 8.23 6 E. 4.7 21 H. 7. f. 10. 22 H. 6. f. 36. 38 E. 3. f. 10. were cited Iustification Another exception was also taken That the Defendant doth not say that the Gate of the Close where he entred was open and though he may justifie to search for his Shéep in the Close yet he cannot justifie the breaking of his Close to doe it But Roll chief Iustice over-ruled this exception And for the matter in Law whether the Defendant had made a good justification or no. He held that he had not for all that he hath alleged by way of Iustification is but matter of private profit to himself Distress Damage feasant and not for the publique good for he went not thither to find or apprehend the Felon but to look for his Shéep And if Cattel be stollen and put into my ground I may take them damage feasant or bring an Action of Trespass against the owner and the owner cannot take them away without the license of the possessor of the ground Licence for if he might by that means the possessor of the ground would be without remedy for the damage the Cattel had done him And he said That when one hath suspition of another for felony he ought to shew the cause of his suspition Arrest otherwise the party suspected ought not to be arrested upon it and concluded that the Plaintif ought to have Iudgement Ierman Justice held that the Defendant ought to have Iudgement because a private injury as this Trespass is ought to give way to the publique good viz. the discovery of Felony and here is a publique good intended and it ought to take place of the Plaintifs inconsiderable injury And he said that one may be arrested for Felony only upon Common fame if there be a felony committed Otherwise it is if there be no Felony done Ask Justice said the Case was hard on both sides But the Court gave Iudgement for the Plaintif except cause should be shewn to the contrary Mich. 1649. Banc. sup VVIld moved the Court that the retorn of a Habeas Corpus granted for certain rioters called the Diggers that were committed by Iustices of Peace upon finding the Riot upon their view might be filed To quash a Retorn of a Rescous which was granted upon which he moved that the prisoners might be discharged but the Court commanded the retorn to be read upon the reading of it Wild took this exception viz. That the prisoners were committed contrary to the Statute of H. 4. c. 7. for by that Statute the Sherif ought to be present at the finding of the Riot which was not so here Walker held that the Iustices had power by the Statute without the Sherif to enquire of the Riot and to commit the Rioters But Roll chief Iustice said that there is no enquiry made in this
the Statute of limitations of Actions in Bar of the Action to this Plea the Plaintif demurred Hales held that this action grounded upon the Statute is not within the Statute of limitations of Actions of 21 Iac. because it is not a meer Action on the Case at the Common Law but an Action upon the Case grounded upon the Statute of Monopolies But Twisden on the other side said that a Monopoly is an offence at the Common Law Monopoly for which an Action of the Case did lie before the Statute and that the Statute was made but to inflict a greater punishment for the offence and so it is within the Statute of limitations of Actions And 2ly the very words of the Statute say that all Actions shall be brought within six years and he that says all without limitation Statuâ—e of limitations excludes none and by consequence this Action is not excluded 3ly The end of the Statute of limitations was to quiet sales and therefore the Statute shall be largely interpreted because made for so publique a good Adjourned to the next term to be argued again Pasch 1649. Banc. sup VPon a verdict given against a Hundred that was sued in an Action upon the Statute of Winchester of Hue and Cries Arrest of Iudgement in an Action upon the Statute of Winchester Bill Original It was moved for the Hundred in Arrest of Iudgement that the Hundred was sued by Bill whereas it ought to have been sued by Original But the Court over-ruled the Exception and said that there are many Presidents to prove that such Actions may be commenced as well by Bill as by Original Pasch 1649. Banc. sup LEtchmore moved to quash an Inquisition taken against one upon the Statute of West 2. for the throwing down of Enclosures To quash an Inquisition denied But the Court answered that it was not proper to move to quash the Inquisition because the Defendant came in upon process and therefore he must either traverse or plead to the Inquisition Letchmore replyed that the Inquisition was so uncertain that the Defendant could not tell how to plead to it Plea Traverse But the Court answered he might plead to the Distringas And that the monies already levied for the offence should rest in the Sherifs hand until the tryal Hamond against Ireland Pasch 1649. Banc. sup Hill 1649. rot 818. VPon a Verdict given in an Ejectione firmae Arrest of Iudgement in an Ejectine firmae It was moved in Arrest of Iudgement that the Plaintif declares that the Defendant ejected him ex uno Cottagio whereas an Ejectione firmae lies not of a Cottage no more than a praecipe quod reddat lies of a Cottage But the Court answered that an ejectment doth lie of a Cottage because the description of the thing by that name is sufficient and certain enough to shew the Sherif of what to deliver the possession of Ejectment Recovery yet it was said that a recovery lies not of a Cottage Rethorick and Chapels case 10 Iac. was cited that an Ejectione lies of a Cottage and also a praecipe quod reddat VVood against Topham Pasch 1649. Banc. sup VVOod brought an Action upon the Case against Topham quare filium suum haeredem rapuit et maritavit Arrest of Iudgement in an action upon the case and obteined a Verdict against the Defendant In Arrest of judgement moved for the Defendant these exceptions were taken against the Declaration 1. That it doth not say haeredem apparentem but only filium haeredem 2ly It doth not say rapuit contra voluntatem but only rapuit 3ly It doth not set forth that the heir was within age 4ly It doth not say Cujus maritagium ad ipsum pertiner But the last Exception only was insisted upon Wilmot of Councel with the Plaintif to proove that that Exception was not material cited one Grayes case Pasch 29 Eliz. Banc. reg and the Books of 12 H. 4. f. 16. and 23 E. 3. Brook Tit. Trespass 43. But Hales urged that the last Exception was not answered Case Roll chief Iustice said That an Action quare filium haeredem suum rapuit will lie although the heir be of full age for the Father hath the mariage of his Son although he have no estate to leave unto him Adjourned to the next Term. Postea 227. Dawkes versus Payton Pasch 1469. Banc. sup Pasch 1650. rot 306. AN Infant brought an Action in this Court Error brought in the Upper Bench upon a Iudgement given there and had a Verdict and a Iudgement the Defendant brought a writ of Error in the same Court to reverse this judgement and it was assigned for Error that the Infant brought his Action in propria persona whereas he ought to have sued per guardianum and this is Error at the Common Law and is not helped by the Statute of Ieofails and it was argued that the writ of Error may be well brought in this Court to reverse a judgement given here if the Error assigned be matter in fact as it is in this case for by such a writ of Error the judgement of the Court is not called in question as it would be if the Error assigned were matter in Law and these Books were cited Error viz. 7 H. 6. 28. Dyer 196. Mich. 25 26. Eliz. Banc. reg Hales on the other side argued that the writ of Error did not lie And he made 2 questions 1. Whether the writ of Error did lie at all 2ly If it did lie in an other Term and he said that admitting the writ of Error doth lie yet it ought to have been brought the same Term wherein the judgement was given but so it is not here and therefore it is not well brought And 2ly If the Error assigned be Error yet it is helped by the Statute of 21 Iac. of Ieofails But if it be not yet the Error assigned here is not assignable for it doth not appear whether the party appeared per guardianum or not for the party is a privileged person The Court answered we cannot know whether the party be within age or of full age and therefore know not whether he ought to appear by Attorny or by Guardian but for Error in matter of fact in a judgement given in this Court a writ of Error will lie here well enough and it is all one whether the writ be brought the same Term or in another Term. But bring us Books and we will advise Postea Viccarye against Barnes Pasch 1650. Banc. sup AN Action upon the case was brought by a Mercer against the Defendant for speaking these words of him Thou art a Cuckold Arrest of Iudgement in an Action upon the Case for words and a Cuckoldly Rascal and art not able to pay thy debts and art not worth a Groat The Plaintif had a Verdict and upon a motion in Arrest of judgement because the words were supposed not
It is considerable in regard it is an office of trust whether it may be leased out although he may make a Deputy Therefore argue it again the next Term. Baker and Andrews Mich. 1652. Banc. sup Trin. 1650. rot 1469. BAker brought an Action of Trespass quare vi armis clausum fregit Demurrer to a replication in Trespasse vi et armis and for taking his Cattel the Defendant as to the force and arms pleads non cul and as to the rest he justifies that the Cattel went in through the defect of the Plaintiffs inclosures the Plaintiff replyes that the Cattel came in through another mans fence into his ground to this replication the Defendant demurs 〈◊〉 shews for cause that the Plaintif doth not assign where the place of the other Close lyes through which the Cattel came through Yard said it is not necessary to shew where it lyes for they went not in where the Defendant hath alleged so the traverse is well taken Wadham VVindham on the other side answered here is a new assignment and he answers not the Trespass for which the Action is brought and because it is a new assignment we must give a new answer and therefore you must shew the place where your new assignment lyes Roll chief Iustice He pleads no more but that the Cattel came in at another place than is pleaded and he needs not shew the place But here the Defendants plea is not good Plea for he pleads a prescription where it ought to be a custom that the occupyers of the land ought to make the sences and he ought not so prescribe in the person Iudgement for the Plaintiff nisi Mich. 1652. Banc. sup BY Roll chief Iustice Who may take advantage of a fault in a Plea Advantage If there be a fault in a plea in matter of form and after there is a fault also in the replication and the Defendant demurs to it but shews no cause of demurrer he shall take no advantage of this fault in the replication but he who joyns in the demurrer shall take advantage of the ill plea and so was it adjudged Pasc 1. Car. in this Court in Prat and Thimblethorps â—ase and he said that all faults in pleading are incurable at the Common Law and therefore those that are not helped by Statutes are left as they were at the Common Law Mich. 1652. Banc. sup ONe was made Constable by order of a quarter Sessions but the party refused to serve Motion to quash aâ— order of Sessions and removed the order hither by Certiorari moved to quash the order but the Court would not do it although ther were material exceptions taken against it but ordered him to plead because they perceived the party was stubborn and they would not give encouragement to such persons Heath and Vdall Mich. 1652. Banc. sup HEath a Caryer brought an Action of the Case against Vdall Arrest of Iudgement in an Action upon the case and declares among other things for plundering of him of viginti fardellas Anglice packs and in arrest of Iudgement it was moved that the words vinginti fardellas Anglice packs is uncertain But Maynard argued that it might be good because the Caryer could not declare otherwayes for he could not know what was in the packs and he cited one Bedingfields case Trin. 10. Car. Declaration where an Action was brought for a library of books and for apparell and adjudged good But Roll chief Iustice said it could not be good for the apparel Wadham Windham on the other side held the words uncertain as they are and said he ought to have shewed that they were packs with goods or have shewen what was in them for a pack is but a measure of a thing Roll chief Iustice answered if it be but a measure of a thing then no damages are given for them and then the Action is good for the rest But we will advise Afterwards in the same Term Maynard moved for the opinion of the Court and thereupon the Court held that the words are incertain as they are for he ought to have expressed what was in the packs and ruled a nil capiat per billam to be entred Levingston and Crompton Mich. 1652. Banc. sup LEvingston brought an Action in this Court against Crompton Exceptions to a plea of privilege The Defendant pleads that he is a Clark of the Chancery and that all Clarks of the Chancery ought to be sued in the Chancery only and not elsewhere and demands judgement if he ought to make any other answer in this Court Two Exceptions were taken to the plea 1. He saith That all Clarks of the Chancery have used to be sued in the Chancery and not elsewhere and doth not say nor any of them have been used to be sued elsewhere and though all of them have not been used to be sued elsewhere yet that hinders not but that some of them have been sued elsewhere 2ly He pleads that he is a Clark of the Chancery and ought to be impleaded in the Chancery held at Westminster before the Keepers of the liberty of England c. time out of mind which is not true Hales answered That this Court ought to take notice of the privilege of Chancery Notice Privilege although it be not well pleaded But Roll chief Iustice denied that they ought to do it and said That it is the Custom for the Clarks of the Exchequer when they plead their privilege to bring the red book wherein their privileges are written into the Court and upon sight of their privilege there written it is used to be allowed but it is not so of the privileges of the other Courts but they must be pleaded and so here And because it is not well pleaded here therefore shew cause why you should not plead in chief Pitton and Rey. Mich. 1652. Banc. sup PItton appeared to an Action brought against him at the sute of Rey Motion for the Plaintif to declare speedily but no declaration was put in against him Vpon an Affidavit that the Defendant was a Merchant speedily to go to Sea It was moved for him that the Plaintif might forthwith declare against him that thereby he might direct his Attorney what to plead and might have his liberty to be gone Roll chief Iustice By the course of the Court he hath thrée terms liberty to declare but this is an extraordinary Case Therefore let him declare Thursday next otherwise he shall not declare till he come back Nota. Mich. 1652. BY Roll chief Iustice A private Sessions of the Peace is not said to be held for the County Staples Case Mich. 1652. Banc. sup A Rule was read on the Capital side for Staples a Iustice of Peace of Sussex Cause why no Attachment against a Iustice of Peace to shew cause why an Attachment should not be granted against him for procéeding upon an Endictment of forcible entry and
fining the party after a Certiorari was delivered unto him to remove the Endictment into this Court and thereupon it was prayed that it might be granted and Sir Tho. Styles and Sir Iohn Sidleys case 8 Caroli was urged where an Attachment was granted in the like case Wild on the other side prayed it might not be granted because the parties endicted did not tender sureties to proceed to a Tryal upon the Endictment as the Statute directs and because the fine was set upon the parties before the Certiorari was delivered and it is in the election of the Iustice to set a fine upon the party Fine Traverse Plea and refuse to admit the party to his traverse as some do hold Roll chief Iustice Vpon view of the force the Iustice may set a fine upon the party and refuse to admit the party to his traverse or plea at his pleasure but the case is not so here and in 15 Car it was resolved that if a Certiorari be brought to the Sessions to remove an Endictment of forcible Entry preferred against divers persons if some of them come in and find sureties for the damages it is good for them all to remove the Endictment for the rest else it would be mischievous for them that find the sureties And he said that if any thing be done at a private Sessions of Peace it ought to be returned to a Quarter Sessions or into this Court Vpon view of the force the Iustices of Peace are Iudges Error and may set a fine and if there be Error a writ of Error may be brought The rule was that Staples be examined upon interrogatories and make a return of the Certiorari Monday next and that he restore the fine to the party Wood and Mountney Mich. 1652. Banc. sup IN the Case of VVood and Mountney Bail not discharged by the death of the Principal Bail Roll chief Iustice said That if the Plaintif in a writ of Error die before the matter be determined yet his Bail are not thereby discharged Webb and Washborn Hill 1652. Banc. sup THe Action was an Action of Trover and Conversion for divers goods Arrest of judgement in a Trover and Conversion The Defendant pleaded not guilty and upon issue joyned a Verdict was found for the Plaintif It was moved in Arrest of Iudgement that the Plaintif amongst other things had declared for a Trunk with writings which is uncertain Wadham Windham for the Defendant said the Declaration is certain enough and cited a Case where an Action was brought for two Trunks of Cloathes and doth not say what Cloaths and yet adjudged good Another Exception was taken That the Plaintif declares for a great Beam Scales and Weights which is also incertain To this Windham answered It was certain enough because they all make but one thing by reason of the relation they have one to the other And in the old Book of Entries we find that an Action of Trespass was brought pro Caruca cum apparatu and adjudged good Latch on the other side as to the last Exception said It is not answered for the words are very incertain and it is not like the case of the Trespass cited de Caruca cum apparatu for the Weights go not to the perfecting of the Beam as the apparatus doth of the Plow and it is as uncertain as to bring an Action for five Locks and Keys which is not good Hales answered it is certain enough for it is all one as if he had said A Beam Scales and Weights which is as certain as to say a Ship with Anchors and Cables Roll chief Iustice How can we reduce the Weights to any certainty as the Declaration is laid and if the word and had been added it would not have helped for they may be a hundred Weights or a thousand Another Exception was taken that the Plaintiff in another Action had declared for four pair of Hangings which is uncertain But Roll chief Iustice said That that might be well enough understood Green at another day insisted that four pair of hangings is very uncertain but if it had been said four sutes it had been well Besides the very word hangings is a doubtfull word for it shews not whether the hangings were Silk or Stuff or what else they were made of as it ought to be He also took an Exception that the Plaintiff had only shewed that here was a denyal and refusal to restore the goods but no conversion of them is shewed To this Hales answered That the Action being an Action upon the Case It is not necessary to shew the Conversion and for the four pair of hangings it is well enough for a pair is a couple when the word is used of dead things and not like a pair of tongues which make but one thing nor is it material to expresse of what the hangings are made as it is not in an Action brought for divers pair of stockings material to say whether they were of thread silk wosted or wollen as hath been adjudged and the word hangings is certain for any one will conceive them to be meant of hangings of a room Roll chief Iustice The Action is an Action upon the case and it is not necessary to shew a conversion for the Action is not brought for the conversion and if it were so if a demand and a denyal be proved doth not this prove a conversion Case Trover and Conveision As an Action of the case lyes for keeping one out of possession although the party doth enter afterwards and the four pair of hangings is certain enough and it is not like as where Latin words are mingled with English in a Declaration and the words being taken in the English construction shall be understood to be eight hangings Nor is it material to expresse of what the hangings are made But the great doubt is whether the words be meant of hangings for a room or not and I suppose they cannot be meant of other hangings the words being in English and not in Latin with an Anglice and I believe you cannot shew me any thing else that the words can by common intendment signifie Iudicium nisi The case was again moved at another day by Latch who urged that four pair of hangings are words incertain but if it had been four suits it had béen well so that here is a misaplication of words to expresse the thing meant and he might as properly have said a suit of Shoes or a suit of Conies If one say he hath lost a hanging this is incertain of it self for it is the predicament of situs and not of substance for a hanging is a posture and the word pair makes it more incertain than it was without it Hales answered that it is certain enough for the word hanging is used here substantively and not as a participle and the common use of the word is only applicable to the hangings of a room and the four pair shall
Attorney of the Common Pleas that was sued in this Court to allow his writ of privilege Motion to allow an Attorneys privilege of the common pleas But Roll chief Iustice bid him plead his privilege for we cannot allow it upon a motion and his shewing of his writ of privilege Whitehead and Buckland Trin. 1653. Banc. sup Hill 1652. rot 121. VVHitehead brought his Action of Trespass against Buckland for taking of his Cattel Demurrer to a replication in Trespass for taking Cattel The Defendant pleads the Stat. of limitations of Actions in Bar the Plaintif replyed that he sued forth an Original within the time limited in the Statute To this replication the Defendant demurs and shews for cause 1. That he saith he hath sued out his Original but doth not say prout pater per Recordum as he ought to do 2ly He doth not plead the continuances upon the Roll Maynard answered that the pleading is good and we cannot take a traverse upon their plea which is surplusage nor is it necessary for us to shew in our plea all the continuances but to plead so much of the Record only as goes in Bar. Plea Roll chief Iustice The plea is plain and it is not necessary to allege the continuances for here is an apparance Postea Sale and Wray Trin. 1653. Banc. sup VVIld moved the Court that the Defendant in an Action of Covenant might be ruled to swear his plea Motion that the Defendant might swea◠his plea. because it is a forein and dilatory plea pleaded to out this Court of its Iurisdiction and to hinder a Tryal for he pleads that he was at Lisbon in Portugal at the day of the payment of the money which he had covenanted to pay Roll chief Iustice you may reply that he was in England Replication and you need not traverse absque hoc that he was in Portugal But the question is whether the plea be forein Traverse and I am of opinion that it is forein and ought to be sworn Howell answered it is not forein for it may be tryed in the County where the Action is brought Plea Roll chief Iustice Let him swear his plea except better matter be shewn Kitchinman Trin. 1653. Banc. sup VPon a Verdict given for the Plaintif in an action of the Case brought for preferring a Bill of Endictment of felony against him Arrest of judgement in an Action upon the case It was moved in Arrest of Iudgement that it was not laid in the Declaration to be done falsly but that the Attorney of the Plaintif hath interlined the word falsly in the Postea 2ly It is not said that the Endictment preferred was delivered to the grand Iury but to the Court. Roll chief Iustice It is said to be preferred malitiose Endictment and it cannot be malitiose except it be also falsly and here is falsly expressed in the beginning of the Record and it is not necessary to say so through the whole Record for the words subsequent are coupled to the precedent And a Bill of Endictment is to be delivered to the Court and the grand Iury receives it from thence Iohnson Launcelot took another Exception viz. That there is a variance between the Venire and the Distringas for in the Venire one of the Iury is called Cargenter Variance and in the Distringas Carpenter Roll chief Iustice Let it be stayed for this fault And let Williams the Sollicitor be committed for enterlining the Postea Commitment But upon a voluntary confession of the fact and submission the Sollicitor was released and only ordered to pay the charge for the motions in the Cause Amendment and the Postea was ordered to be amended by the Paper book Custodes and Troos. Trin. 1653. Banc. sup THe Court was moved to stay Iudgement in an Endictment of perjury found against one for perjury in an evidence given by him in an Action of Trover and Conversion Motion to stay judgement in perjury The Exception taken was that the Oath is not averred to be made concerning the matter in issue in the action so it cannot be such perjury for which an Endictment lies Roll chief Iustice Is the Endictment grounded upon the Statute or is it an Endictment at the Common Law The Councel answered It is an Endictment framed upon the Statute Roll chief Iustice Then it is a material exception but if it had been an Endictment at the Common Law it would have been otherwise for at the Common Law one may be endicted for a false Oath in an Affidavit Endictment Perjury False Oath Therefore let Iudgement stay till the Plaintif move Custodes and Martin and Long Trin. 1653. Banc. sup THe Court was moved to quash two Endictments against Martin and Long Motion to quash two Endictment as Lords of the Manor of Clarkenwell for not repairing the Stocks and Whipping Post and not making of a Pound The Exception was Endictments Stocks Whipping Post that the making the Pound was not a publique thing and therefore an Endictment lies not for not doing it Roll chief Iustice That is true And he took another Exception That the Endictment doth not shew that Martin and Long are Lords of the Leet And if they be but Lords of the Manor and not Lords of the Léet they are not bound of common right to repair the Stocks and Whipping Post and therefore the Endictment must shew how they are bound to do it viz. either as Lords of the Leet or otherwise or else the Parish is bound to do it Custodes and Rickabye Mich. c. 1652. Banc. sup VPon an old rule of this Court made in the beginning of King Charls Arguments and Iudgement whether a pardon for murther was well pleaded The Court was moved to deliver their opinion in the Case of Rickaby that had been endicted for murther and had obtained his pardon whether the pardon was good and to be allowed or that he should be tryed notwithstanding his pardon Roll chief Iustice answered This Case was argued often at the Bar 8 Caroli which was long agoe and before our times therefore let us have books and argue it again for we have yet heard no Arguments in the Case At another day by rule of Court the Case was again moved and argued by Wadham Windham for the Keepers that the pardon was not good nor ought to be allowed because by the pardon murther was not pardoned and in his argument he made these questions viz. 1. Whether the King could pardon murther by the Common Law 2. Whether he might do it by the Law of God 3. Whether he might do it by the Statute 4. Whether the pardon be made good by the non obstante included in it For the first the King ex Officio may pardon Man-slaughter by the Common Law and in some cases he might pardon murther viz. Where there is but only malice implyed in the Murtherer but