against Harington for arrerages of rent due to him as Lessee of a Vicarage Arrest of judgement in Debt for arrerages of an annuity Debt Annuity and upon nil debet pleaded there was an Issue joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that an Action of Debt did not lye but that he ought to have brought a Writ of Annuity because it was for arrerages of an Annuity which yet continnes and 6 H. 4.7 9 H. 6.94 were cited The Iudgement was arrested till the Plaintif should move Compton against Allen. Mich 1649. Banc. sup Entred Trin. 1649. rot 348. COmpton brought an Action of Covenant against Allen his Lessee for years upon a Covenant of the Indenture Demurrer upon a Plea in an action of Covenant for not keeping the House let unto him in repair The Defendant pleads that the House was burnt by casualty The Plaintif demurs to this Plea and for cause shews that the Plea was contrary to the Defendants express Covenant by his Deed and therefore was not good Roll chief Iustice said that a Lessee that covenanteth to repair Covenant ought to do it if the House be burnt be it by negligence or by other means Therefore let the Plaint if have Iudgement except cause shewed to the contrary against Phillips Mich. 1649. Banc. sup AN Action upon the Case was brought against Phillips for suffering one to escape Arrest of judgement in an action upon the Case Escape The Plaintif had a verdict The Defendant moved in arrest of Iudgement and for cause shews that the Declaration was insufficient For 1. it shews that the party was arrested that made the escape but it doth not shew by what process he was arrested 2ly The Declaration saith that he was arrested virtute Querelae which cannot be for he is arrested by virtue of the Writ and not of the Plaint 3ly The Declaration doth not shew by what authority the Prison was kept out of which the escape was made Escape Roll chief Iustice said that the second exception was material and then if the party be not well arrested there can be no escape and so the Action lyes not Therefore nil capiat per billam if cause be not shewed to the contrary Iohnson against Abington Mich. 1649. Banc. sup IOhnson brought an Action of the Case against Abington and declared Arrest of judgement in an action upon an Assumpsit that the Defendant in consideration that the Plaintif would deliver unto the Defendants Son such wares as his Son should desire did assume and promise unto the Plaintif that he would pay the Plaintif for them and avers that he had delivered certain wares unto his Son and that the Defendant did refuse to pay for them and for this he brought his Action The Defendant pleads non Assumpsit and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of judgement and for cause shews that it doth not appear Averment that the Son of the Defendant did desire the Goods that the Plaintif delivered unto him and for which he brings his Action and the Assumpsit being to pay for such as his Son should desire the Declaration ought to set forth an actual desire of the Son to have the wares delivered But Twisden of Councel with the Plaintif answered that the delivery of the commodities by the Plaintif and the acceptance of them by the Defendant implyed a desire and it is not necessary to shew an actual desire Ierman Iustice said there ought at least to be a verbal desire But Roll chief Iustice said that the acceptance of the wares is an actual desire and that is more than a verbal desire Declaration Assumpsit and it is not necessary here to affirm the punctual words of the promise but only the substance of it And therefore let the Plaintif have his Iudgement if better matter be not shewed Mich. 1649 Banc. sup VVAlker moved to quash an endictment against the Inhabitants of Mile-end To quash an Endictment within the Parish of Stebenhoth for not repairing the high way and to take off the issues upon a Certificate read that the way was repaired and upon this exception taken to the Endictment viz. that the Inhabitants of Mile-end within the Parish of Stebenhoth are endicted and Mile-end is but a Hamlet within a Parish and a Hamlet within a Parish cannot be charged to repair a high way except it be by prescription or for some other special reason for of common right the whole Parish is charged with it Common right High way and here is no such prescription or particular reason shewed in the Endictment and therefore it is not good Roll chief Iustice answered that of common right a Hamlet is not so charged but a vill is and therefore let it be quashed but the issues shall stand for few will repair the high way till they be forced Fines against Dell. Mich. 1649. Banc. sup FInes brought an Action of Debt upon an Obligation to perform certain Covenants contained in an Indenture Demurrer to a Plea in Debt upon an Obligation to perform Covenants Plea The Defendant pleads performance generally The Plaintiff demurs to the plea and for cause shews that divers Covenants are comprised in the Indenture and that some of them are in the Affirmative and others of them are in the Negative and therefore a general pleading of performance to all is not sufficient for as to the Covenants in the Affirmative he ought to plead a special performance and to shew how he hath performed them The Court bid the Plaintif take his judgement except cause be shewed to the contrary Mich 1649. Banc. sup THe Court was moved that there might be a rule of Court for the party upon satisfaction made of a judgement obtained by him For a rule to acknowledge satisfaction to acknowledge satisfaction But the Court denyed it and said there was some trick in the businesse For no doubt but the party upon receipt of what is due to him will acknowlege satisfaction without a rule to compel him Crible against Orchard Mich. 1649. Banc. sup Entred Trin. 1649. rot 30. ORchard brought an action of debt against CRible upon an Obligation Error upon a judgement in debt upon an Obligation the Defendant pleaded per minas upon this an issue was joyned and a Verdict and a Iudgement given in the Court at Barnstaple for the Plaintif and upon a Writ of Error brought three Errors were assigned 1. That the Declaration was insufficient 2ly The Common Error 3ly That the Venire was not good but these were over-ruled And Roll chief Iustice upon Oyer of the Record found this Error That the Iury in the assessing of damages say pro missis Custagiis c. but doe not not say circa sectam et expenditis Damages Iudgement and so it cannot appear for what the costs
are accompted perils of the Seas Wood against Clemence Mich. 24 Car. Banc. Reg. Hill 22 Car. rot 804. VVOod brought an Action of Debt upon an Obligation to stand to an award against Clemence Demurrer upon an award pleaded The Defendant pleaded that the Arbitrators made no award The Plaintiff replies that the Vmpire made an award and sets it forth at large The Defendant demurs and for cause shews that it appears by the pleading that the Vmpire was chosen before he ought to be for it appears not that the Arbitrators could not agree in making the award or that they had any power to make an Vmpire 2ly The Award is made for satisfaction to the Owners and Mariners of the Ship concerning which the submission was made Award and one of them is the Plaintiff in this Action and they cannot arbitrate that the monies which concern one shall be paid to another and so all the award is naught Also here is nothing arbitrated concerning Iohn Acton the Master of the Ship who is one of the parties within the submission Roll Iustice As to the first Exception it is not a material one as I conceive But give a note of your exceptions to the Councel of the other side and bring us Books Postea Frere and others against Mich. 24 Car. Banc. Reg. AN Action of Debt was brought for 1500 l. upon a deed of Charter-party Arrest of judgement in debt The Plaintif had a verdict The Defendant moved in arrest of judgement and offers for cause that the Declaration was insufficient for it appears not by it that the Defendant is indebted to the Plaintif and then there is no cause of Action for the Declaration only says that he is indebted as it appears but shews now how Roll Iustice said it is by indenture and well enough Dyer 2 3 Phil. and Mar. f. 148. Plowden 121. 122. Debt Covenant Buckleys case 143. Browning and Beestons case 21 E. 4. f. 29 he said either an action of debt or an action of Covenant lies here for it is upon a Charter-party Here is not indeed a perfect allegation yet it is well enough for it hath béen usually thus pleaded Speak to it again Wednesday next Dison against Bartue Mich. 24 Car. Banc. Reg. DIson brought an action of Assault and Battery and taking of his goods Arrest of Iudgement in Assault and Battery against Bartue and had a Verdict the Defendant moved â—â— arrest of Iudgement and shewed for cause that the Declaration was â—â—â— good for it is with a quod cum c. which in an action of trespass vi et â—â—mis is not good for it is not a direct affirmative that the Defendant did the Trespass but it is only an implication that he did it but as it is it might have been good if the action had been an action of Trespasse upon the case The Iudgement was stayed till the Plaintif should move Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to stand to an Award Demurrer upon an Award pleaded The Defendant pleaded nullum arbitrium The Plaintiff replies and sets forth the Award and assigns a breach The Defendant demurs The Plaintiff after demurrer moves the Court that he might discontinue his Action But the Court said that after a demurrer upon an Arbitration it is not usual to discontinue the Action Discontinuance But let nil capiat per billam be entred if cause be not shewed to the contrary Mich. 24 Car. Banc. Reg. AN Action of Debt was brought by Baron and Feme upon an Obligation made to the Feme dum sola fuit Arrest of Iudgement by Baron and Feme and the Declaration is ad damnum ipsorum The Plaintiffs had a verdict The Defendant moves in arrest of Iudgement and for cause shews that the Declaration should not be ad damnum ipsorum Declaration but only ad damnum of the Husband only But the Court held that the Declaration was well enough and said it is the usual way of declaring in such Actions and the mony due upon the Obligation not being paid to the Feme whilest she was sole it was dammage to her and now being Covert it is a dammage to the Baron also and so it is ad damnum ipsorum 16 E. 4. Therefore let the Plaintiff take his Judgement Quatermans Case Mich. 24 Car. Banc. Reg. IN the Case of one Quaterman Antient use of practâ—c altered Roll Iustice said that out of indulgence to the Bayl it hath been the use of later times that if the Bayl do bring in the principal before the retorn of the second Scire facias which was taken out against the Bayl Discharge thereupon to discharge the Bayl but antiently it was not so but it was then counted too late to bring him in Hill and Harris Micst 24 Car. Banc. Reg. AN Action of Debt was brought against divers Executors Arrest of judgement in an action of Debt against Executors The Defendants plead fully administred and upon this an Issue was joyned and a verdict found for the Plaintiff The Defendants moved in arrest of Iudgement that there is contrariety between the issue joyned and the verdict found for the Action is entire against all the Executors and they had all pleaded fully administred Verdict and upon this the issue was ioyned and the veredict finds that some of the Executors had fully administred and that others of them had Goods in their hands whereas the verdict should have been that they had not fully administred The Iudgement was stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. VPon a rule of Court to shew cause why restitution should not be granted upon an Endictment of forcible entry Cause why no restitution upon an endictment of forcible entry exception was taken to the Endictment that it did not say that the party entred illicite manu forti as the words of the Statute direct and it was said that in a forcible entry there ought to be an entry expulsion and deteyner Roll Iustice said that there ought to be manu forti in the Endictment according to the Statute to distinguish this kind of Entry from an ordinary Trespass by entring into anothers Land which is not so violent as a forceable entry is supposed to be But let us see the Copy of the Endictment Gibbs against Dunn Mich. 24 Car. Banc. Reg. GIbbs brought an Action upon the Case against Dunn Arrest of judgement in an action upon the Case for words for these several words spoken of him by the Defendants Wife at several times viz. thou art a thief for stealing my corn out of my Barn and at another time for saying thou art a thief The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement that entire dammages were given for both the words whereas the first words were not actionable Dammages entire Intendment for the
the tryal good without it and thereupon day was given to shew cause why the Iudgement should not be aâ—firmed Pasch 23 Car. the Iudgement was affirmed Andrews Case Hill 22 Car. Banc. Reg. A Recognizance was acknowledged at Serjeants Iune in Fleetstreet Where a Scire facias upon a recognisance shall be brought and delivered and enrolled at Westminster The Court held that it was at the election of the Recognisee to bring his Scire facias either in London where the Recognizance was acknowledged or in Midlesex where it was delivered and enrolled But adjourned Afterwards viz. Pasc 23 Car. the Court held that the Scire facias ought to be where the recognizance is taken and not where it is recorded for there it begins to be a Record but this being in the Common Pleas it was good both ways and thereupon the party had his judgement Rooke and Knight 22 Car. Mich. Mich. 22 Car. rot 381. A Iudgement given in the Court at Dym Church Demurrer to a Scire facias upon a judgement removed out of the Cinqne Ports by Certiorari in the Kings Bench. a limb of one of the Cinque Ports was removed by a certiorari into the Kings Bench and thereupon issued a Scire facias for the Defendant to shew cause why the Plaintiff should not have execution upon the judgement to this the Defendant appears and demurs and takes these exceptions 1. That it is not expressed where Dim Church is 2ly In the retorn of the alias certiorari it is said sicut prius and not sicut alias 3ly the Sheriff in the reforn is not namned Knight and Baronet neither doth he name himself by his name of Baptism and Surname But the Court did over-rule all these exceptions and gave judgement for the Plaintif AN action of the Case was brought for these words Action upon the Case for words Thou hast stoll'n my wood and the Court inclined the words were actionable but not if he had said thou hast stoll'n my Trees and it was said that a precipe will lie of a wood for it shall be intended of woody ground adjourned Pracipe Helliar and Grace his VVife Pasch 23 Car. Banc. Reg. AN action upon the Case was brought by Helliar and his wife Action upon the Case upon an Assumpsit upon a promise made unto them during the Coverture and it was moved a verdict being given for the Plaintifs in arrest of judgment that the Action ought to have been brought in the name of the Husband only and not by the husband and wife and a case to prove it was cited out of Dyer Dyer 91. and upon this exception the judgement was arrested till the other should shew cause to the contrary And in this case it was said by the Court that if an Obligation be made to baron and feme that it is the better opinion Joynt action that the baron may bring an action upon this obligation in his own name only and not name his wife or else he may at his election bring the action in the name of himself and his wife joyntly Betsworth and Betsworth Pasch 8 Maii 23 Car. Banc. Reg. It was moved for a Prohibition to the Prerogative Court upon a surmise that the party did endeavour to barstardise one that was legitimate But the other party answered that the surmise was not true and urged that the sute in the Praerogative Court was only Prâ—hibition to the Praerogative Court whether Letters of administration were by them well granted or no and not concerning Bastardy as the surmise sets forth and therefore desires the Prohibition may not be granted and for confirmation thereof the case was put which was this Betsworth had a wife called Bridget who died after he takes another wife called also Bridget and dies intestate Bridget the second wife takes Letters of administration of the goods and chatels of her husband deceased the son of Betsworth sues in the Praerogative Court to repeal these Letters of Administration upon pretence that Bridget the first wife of Betsworth was yet living In this case the Court delivered these positions following Jurisdiction 1. That one ought not to sue in the Ecclesiastical Court to Bastard an issue Ordinary but at the Common Law 2. Where the Ordinary hath granted Letters of Administration to one that ought to have them they ought not to be repealed by them 3. Where a sute is in the Ecclesiastical Court for lands and goods Prohibition a Prohibition may be granted as to the lands and they may procéed there notwithstanding as to the goods 4. That in this Case at the Bar neither Bastardy of the issue nor mariage is in question as is surmised but only the validity of the Letters of Administration Incidents and that the other things are but as incident to the matter in question 5. That wife or not wife is triable at the Common Law but whether lawfully maried or not Tryal is tryable in the Spiritual Court 6. Where a thing is tryable in the Spiritual Court and there is also a matter incident to it which is tryable at the Common Law there a Prohibition shall not be granted Prohibition Evidence 7. That a thing concluded in the Ecclesiastical Court touching lands cannot be given in evidence in a tryal at Law for Land 8. If the Common law differ from the Civil Law touching the legality or non legality of a thing if they will proceed according to their Law a Prohibition lies because the Common Law is to be preferred The rule of Court was Prohibition That a Prohibition should be granted and that the other should demur upon it and so it might be debated whether a Prohibition would lie or not and to stay in the Spiritual Court in the mean time Pasch 23 Car. Banc. Reg. ONe brought an Action upon the Case against I. S. for preferring a bill of Endictment against him Arrest of judgement in an action upon the case for stealing of a Mare and that the grand Iury found an ignoramus whereby he was discharged the Plaintiff obtains a Verdict against the Defendant The Defendant takes these exceptions to the declaration in Arrest of Iudgement 1. That it doth not appear thereby that the Party who preferred the bill of Endictment gave any evidence to the grand Iury touching the bill 2ly It appears not that the Plaintiff was bound over to answer the Felony and consequently was not molested â—y it and so he can have no Action But the Court stayed the Iudgement to another day upon the exceptions taken Case and sayed that an Action upon the Case lies for procuring one to be Endicted Endictment although the party himself do it not and that one may exhibit a bill of Endictment to a grand Iury without Oath grand Jury and they may notwithstanding find the bill and although it be exhibited upon Oath they are not bound to
if it be a free Chapel it is presentative 11. rep 150. Cowel Tit. free Chapel Lynwood 149 150. Grendous Case 4. rep Institution gives cure of soules 13 E. 4. f. â— There may be a benefice with cure not presentative VVords and if it be with cure then it was not for a superstitious use and cannot then be within the intent of the Statute 1. rep 23. And for the word all it is not alwayes taken generally but restrictively 2 H. 6. To the objection made to the Verdict that it is not found by whom it is presentative I answer Special verdict This is a special verdict and it is the expression of the lay gens and shall be interpreted according to common acceptation The rule of Court was to argue it again the Next Term because it is a cause of great consequence Mich. 23 Car. Banc. Reg. BAron and Feme bring an Action of Trespass of Assault and Battery Arrest of Iudgement in assault and battery Ioyning in an Action and declare of an assaulting and beating of the Feme and have a verdict the Defendant moves in arrest of Iudgement and for cause shews that the Baron and Feme ought not to joyn in this Action though the Assault and Battery was done to the Feme particularly but that the Baron ought to have brought the Action alone because what ever damages should be recovered would go to the Baron only and cited 9 E. 4. fol. 51. The Iudgement was arrested till the Plaintiff should move Vandicoote Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of Debt against Vandicoote Arrest of Iudgement in Debt for rent against an Executor Debt in the detinet and debet the Executor of I. D. for rent due unto him by the Testator in his life time and hath a verdict The Defendant moves in arrest of Iudgement and for cause shews that the Plaintiff had declared that the Defendant detinet et debet which ought not to be but in the detinet only the Action being brought against him as an Executor for rent due in the Testators life and cited Smith and Nichols case 7 Car. But Wild of Councell with the Plaintiff said it was good enough in the detinet and debet though it might have been in the Detinet only Hales on the contrary part said it was not good for it could not be the Debt of the Executor though he be to be charged and so he cannot be said debere but it is the proper debt of the Testator and the Executor may be said detinere because he ought to pay it Executors VVaiver and doth not Roll Justice said that it had been adjudged good both wayes and said that Executors cannot waive a Term come to them and yet they cannot be charged in the debet and detinet And prima facie in the case at the bar the Action may be brought in the debet and detinet Yet put the cause in the paper and argue it again Tanner and Laurence Mich. 23 Car. Banc. Reg. TAnner brings an Action upon the Case against Lawrence Arrest of Iudgement in an indebitatus assumpfit upon an indebitatus Assumpsit to pay unto him two shillings a piece for every cloath he should buy for the Defendant and declares for so much money due unto him and hath a verdict the Defendant moves in arrest of Iudgement and shews for cause 1. That it is not averred by the Plaintiff Averment Notice that he gave any notice to the Defendant how many cloaths he had bought for him and so it is not certain what is due to him To this it was answered that the cloaths were bought for the Defendant himself and he may very well take notice of the number of them without any notice given him A second answer was that here is a request set forth for the payment of the mony and this implyes a notice But Roll Iustice to this answer replyed Implication that the request doth nor imply a notice and so is I wists Case and besides the notice ought not to be by implication but must be averred certainly Yet let it be moved again Mich. 23 Car. Banc. Reg. THe Plaintiff in an Action upon the Case upon an indebitatus declares that the Defendant in consideration of a certain sum of mony Arrest of Iudgement in an indebitatus assumpsit due to the Plaintiff by the Defendant for rent behind upon a lease for years did assume and promise to pay the same unto him at a certain day and had not done it and for this he brings his Action and hath a verdict the Defendant moved in arrest of Iudgement and for cause shews that there is no consideration declared to ground an Action of the Case upon for rent is a reall thing and an Action of Debt ought to have been brought for it Consideration and not this Action Roll Iustice said that here is only a consideration in law set forth which is not good to warrant this Action Debt But it may be there was some new consideration that sprung from the being of the rent behind that did ground this Action but no such thing doth appear in the Declaration Therefore the Plaintiff nil capiat per billam if cause be not shewn within 14 dayes why he should have his Iudgement Wood and Salter Mich. 23 Car. Banc. Reg. IN an arrest of Iudgement in an Action of Trespasse for carrying away 24 load of tymber Arrest of Iudgement in Trespasse The exception was that the Tymber is not said to be the Tymber ipsius querentis and so no cause of Action Vpon this Iudgement was arrested Burnet and Bird. Mich. 23 Car. Banc. Reg. BUrnet the Administrator of I. S. brings an Action upon the Case against Bird Arrest of Iudgement in an Action upon the Case upon a promise and declares against him upon an Assumpsit made by the Defendant to the intestate for the payment of a certain sum of mony for a mariage portion at 2 severall dayes of payment equally and that for not performing the same in the life time of the intestate he brings this Action The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement and shews for cause that the Plaintiff doth not well set forth the granting of the letters of Administration to him for he sayes they were granted unto him by the Arch-deacon of such a place and doth not say loci illius ordinarium nor cui administratio-pertinuit 2ly It is said that the mony was to be paid at 2 severall payments which amounts to two several promises viz. a promise to pay the first ten pound on such a day and a promise to pay the other sum at another day to come and doth not allege any particular request made by the intestate for the first ten pound But Bacon Iustice over-ruled both the exceptions and said to the first Notice Ordinary Letters of ad ministration-Peculiar
an Executor Devastavit for the Devastavit of the first Executor Roll Iustice the Ecclesiastical-law ought to make a provision against these mischiefs Prohibition otherwise a Prohibition lyes against them Appointed to be argued a gain Tuesday sevennight VVatson and VVatson Mich. 23 Car. Banc. Reg. Hiill 22 Car. rot 1687. VVAtson brought an Action of Debt upon an Obligation against Watson Arest of Judgment in Debt upon an Obligation to stand to an award Award the Condition was to stand to the Award of two Arbitrators or of the Vmpire The Defendant pleads nullum Arbitrium The Plaintiff replies that the Vmpire made the Award The Defendant demurs and shews for cause that the Award was not good for it was incertain and not final on both parts for one party was awarded to pay so much mony to the other as in conscience should be due and no man can say what that is The Court said the Award was insensible And Bacon Iustice said it was a Vicars Award Puliston of Councel with the Plaintiff cited these Books to prove the Award good 8 Ed. 4. f. 2.20 Ed. 4. f. 1. 4.18 Ed. 4. f. 2. Pasc 4 Iac. Gosnolls case 9 H. 7. and said these cases proved that where an incertainty in an Award may be made certain there the Award is good and so it is in our Case 2ly He said that the Award here is good notwithstanding it be to pay so much mony as shall be due in Conscience Conscience for it shall be meant as is due in Law for Law and Conscience are one and the same But Roll Iustice said that the Award doth not make a finall determination of the matters in controversy betwéen the parties and so it is no Award And Bacon Iustice cited 5 Rep. That an Arbitriment ought to be certain and final and this Award wants both these properties and therefore is not good Fitchet against Wolston Mich. 23 Car. FItchet had a Iudgement against I. S. in an action of Debt Demurrer to a Plea upon a Scire facias against an Administrator Scire facias with a Fieri facias I. S. dies intestate Wolston takes out Letters of Administration of the Goods and Chattels of I. S. Fitchet takes out a Scire facias with a Fieri facias to enquire what Goods of I. S. are in the hands of the Administrator and to take them in execution upon the Iudgement Wolston the Defendant appears to the Scire facias and pleads fully administred The Plaintiff demurs to this Plea and shews for cause that in this Case he should have pleaded non Devastavit and not fully administred 2ly The plea answers not the Writ The Court answered all such processes are only to make the Executors or Administrators to answer Fully administred and therefore fully administred is a good Plea for it is a good answer and it would be dangerous to plead other waies And Roll Iustice said that this being a Scire facias with a Fieri facias according to the new manner of making the Writ it would be dangerous to plead non Devastavit and it hath been adjudged a good plea Non Devastavit to say fully administred in a Scire facias against an Executor but it is better to plead nulla bona devenerunt ad manus Nulla bona with which he could satisfie the Debt since the Scire facias brought But this being a new case it is fit to be argued Therefore let us have Books Finer and Jeffry Mich. 23 Car. Banc. Reg. FIner brings an Action upon the Case against Jeffry and declares Arrest of Iudgement in an Assumpsit that the Defendant did assume and promise unto him that if he would forbear to sue one who had assaulted him and beaten him that he the Defendant would pay the Plaintiff as much mony as he was damnified by the Assault and Battery The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause Consideration 1. That it doth not appear by the Declaration that the Plaintiff had any intention to sue the party for the Assault and Battery and so the Assumpsit in consideration that he would forbear to sue for it is no consideration 2ly He doth not set forth that he gave any notice to the Defendant Notice what dammage◠he had sustained by the Battery But the Court held that the Plaintiff néeded not to allege that he had an intent to sue the party for that the Defendant took notice of when the Assumpsit was made and for the notice what dammages the Plaintiff had sustained the request to perform the Assumpsit implies that sufficiently and so gave judgement for the Plaintiff Dersly and Dersly Mich. 23 Car. Banc. Reg. THree are endicted of Conspiracy and forgerg Arrest of Iudgement upon an Endictment of Forgery and one of them only is found guilty by the Iury. The party found guilty moved in arrest of judgement and offered these Exceptions 1. The endictment is for a joynt forgery and so one only cannot be guilty but if one be acquitted all must be acquitted 2ly The endictment is for forgery and causing to forge which are two several and different Acts. But to these the Court said nothing But took another Exception namely Conspiracy that the Conspiracy is not found upon which the Endictment is grounded according to the Statute for 2 are acquitted and so there cannot be a Conspiracy in the third person nor in any of them for one cannot conspire alone Bruer and Sowthwell Mich. 23 Car. Banc. Reg. IN this case it was moved again in arrest of Iudgement Arrest of Iudgement in an Action upon an Assumpsit Nudum pactum Consideration upon the exception formerly taken namely that the words in the Declaration discounting for four Months were uncertain and so there is no consideration for the Assumpsit and then it is but nudum pactum Roll Iustice said the Declaration is insufficient for the incertainty for it cannot be known what is meant by the word discounting Yet he said that though part of the Consideration upon which the Assumpsit is grounded be against Law yet if the other part be good and it may be divided the Assumpsit is good notwithstanding Yet we will hear Councel on both parts before the Plaintiff shall have Iudgement Colson and Bedloe Mich. 23 Car. Banc. Reg. Entred Mich. 22 Car. rot 434. COlson brought an Action upon the Case upon an Assumpsit against Bedlore Arrest of Iudgment in an action upon the Case upon an Assumsit and declares that in consideration of so much monys paid by the Plaintiff to the Defendant the Defendant did assume and promise to deliver so many loads of Hay unto him at such a place and for not performing his promise he brings his Action The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement upon these Exceptions 1. The Declaration doth not
Iustice You might have demurred for this doubleness for one cannot assign an error in fact and another error in Law in a Writ of Error for this is double Hales It is true but we have lost that advantage Adjourned to be argued again the next Term. Robinson against Mich. 23 Car. Banc. Reg. RObinson brought an Action of Trover and Conversion against T. B. Arrest of Judgement in Trespass and hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good for the Plaintiff amongst other things declares that the Plaintiff had found and converted to his own use unum vestigium Anglice a Footstool whereas it signifies a Footstep or a print of the foot and not a Footstool 2ly The Plaintiff declares pro decem ponderibus Aeris meaning ten pound of Brass whereas it should be aeris with a Dipthong for Aeris is of Ayr and not Brass But this exception was over-ruled by the Court because in the writing of Court-hand in which hand Declarations are written No Dipthongs in Court-hand there are no Dipthongs used and so the word Aeris might as well signifie Brass as Ayre But for the other exception judgement was stayed till the Plaintiff should move Izack against Green Mich. 23 Car. Banc. Reg. Izack brings an Action upon the Case in London against Green For a Procedendo to try an action in London for calling her Whore Green removes the cause by a Habeas corpus into this Court and hath a Supersedeas to stay the Plaintiffs procéedings in London The Plaintiffs Councel moved for a Procedendo that he might procéed in London because that in London by a special Custom there an Action doth lye for calling a woman Whore though out of London it lyes not and cited Pascal and Barbars Case 21 Iac. to prove it Bacon Iustice The custom of London is to be certifyed that we may Iudge of the reasonablenesse of it and we are not to take notice of it upon a surmise and it seems that a procedendo should not here be granted Procedendo Notice because the matter with which she is charged by the words belong to the Conisance of the Civill law to try it and not to our Law as it is 2 H. 4. Roll Iustice One may in some Cases have an Action at the Common law where he may have remedy also in the Ecclesiasticall Court for the Common law is to be preferred and by a special custom as the Case here is an Action may be maintained where it lyes not at the Common law and so was it held 8 Car. and 13 Car. And if there should not be a procedendo granted in this Case the Plaintiff would be tyed up by the habeas corpus but if it be granted the matter may be tryed and upon that if the Iudgement be erroneous a writ of Error may be brought in the Hustings in London and so all the matter may come in question to be argued Action and he said that a Charter cannot give an Action which the Common law allows not But let the matter rest as it is till we can agree Mich. 23 Car. Banc. Reg. THe Plaintiff brought his Action upon the Case Arrest of Iudgement in an action upon the case for these words thou muttron-monger theef bring home my stolen hay The Defendant makes a special justification that the Plaintiff had stollen a sheep and upon this was an issue joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement that the Declaration was not good for it only chargeth the Defendant with speaking of the words and doth not say dixit de querente and though those words be in the replication yet that makes not the Declaration good Roll Iustice The Declaration is not good for the words may be spoken of any other body as well as of the Plaintiff Bacon Iustice agrees with Roll and said that the word dixit was not in the Declaration and so it appears not whether the Defendant spoke or writ or thought the words and which is more it is not said that the words were spoken in the presence of any body and then they cannot be scandalous Roll Iustice said one cannot rejoyn upon words which are not in the Declaration nor in the plea for if the Declaration and the plea be naught Replication the replication cannot make them good The rule of Court was nil capiat per billam except cause shewn Saturday following Kinpe against Iohnson Mich 23 Car. Banc. Reg. Pasc 23 Car. rot 154. A Writ of Error was brought to reverse a Iudgement given in Hull Error upon a Judgement in Hall Continuance for these Errors assigned 1. That one of the continuances was to a certain day of the mouth where it ought to be ad proximam curiam 2. The Declaration was pro se decem bestiis Anglice Cows or Whyes which is too general for the word bestia may signifie any beast whatsoever as well as a Cow The Iudgement was reversed except cause shewn to the contrary More against Clipsam Mich. 23 Car. Banc. Reg. MOre brings a Replevin against Clipsam Argument upon a Replevin and declares of a hundred oves Matrices et vervices distrained by Clipsam Clipsam demurs to the Replevin for the incertainty of it for it appears not how many of the hundred sheep distrayned and replevied were Matrices or ewes and how many were vervices or weathers Maynard moves for Iudgement in the Replevin for the Plaintiff and held that centum oves alone was good and certain and the addition Matrices and vervices shall not make an incertainty Incertainty and the writ of Replevin doth not shew the cattell distrained particularly but the help of the party and the view of the Sheriff must concurr to shew what Cattel are to be delivered by the writ 2ly Here is a good issue argumentative although it be not so formal 3ly Issue There is no more in the issue at the Bar than in the avowry for all the Term is but one day ther is no division of time in it it is dangerous to make fractions Term. a Statute acknowledged in the Term relates to the first day of the Term. Statute Relation Hales on the other side agreed that centum oves without saying any more had been certain enough but as they are here distinguished into Matrices vervices there is no certainty at all for the Cattel in kind are demanded and ought to be delivered as they are demanded so that if the demand be incertain there can be no certain delivery 2ly The issue is ill and is not helped by the verdict for 1. the title made is not answered 2. Traverse The traverse is only to the conclusion and so is but by way of inference and is not helped after a verdict for the plea is not answered Advantage for the words
declared and the Defendant hath emparled and after emparlance he pleads that the lands are antient demean Plea which is a dillatory plea. Roll Iustice It is a good plea after imparlance for it goes in bar of the Action it self and not in abatement of the Writ The King and Holland Hill 23 Car. Banc. Reg. ROll Iustice said Opinion of the Court for restitution in this Court not in Chancery Iudgement Restitution that in this case formerly argued restitution ought to be given to the party for the same Iudgement shall be given here which should be given in Chancery and all the Record is here before us and they in Chancery cannot do any thing in the cause for they have nothing before them And it appears to us that the Declaration was insufficient and so we cannot give Iudgement for the Plaintiff but against him notwithstanding the inquisition found for the King Therefore let the party have restitution except cause shewed the first Friday in the next Term. Hill 23 Car. Banc. Reg. THe Court was moved to discharge a prisoner brought to the Bar For discharge of a prisoner by a habeas Corpus committed by the Committee of plundred Ministers and these exceptions were taken to the retorn 1. There is no time expressed how long the party shall stand committed Commitment so he is committed without limitation of time which is not legall 2ly He is committed by the name of Mr. Smith and his name of baptism is omitted which ought not to be Vpon these exceptions the Court held the commitment illegal and discharged the party Weekes and VVeekes Hill 23 Car. Banc. Reg. VPon the retorn of a certiorari to remove orders made by Commissioners of Sewers Against a retorn of orders of commissioners of Sewers Retorn Notice It was moved that the retorn was not good because it was not made by the partyes to whom the certiorari was directed for it was directed to the Commissioners and the retorn is made by the Clark of the Sewers But the Court said the retorn was good enough for all the retorns are so and the Clark is an officer of whom the Law takes notice of and it belongs to him to do it Pasc â—4 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour court in an Action upon the case Error to reverse a Iudgement in an inferior court in an Action upon the case Retorn Day in court and the Error assigned was that the habeas corpus was not well retorned for it is not retorned to be in omnibus servitum et executum as it ought to be and as the usual form is Maynard of Councel against the Writ of Error argued that it was well retorned notwithstanding those words were omitted because the Iury did appear full and no issues were lost and the Iury have day by the roll 3 H. 7. 14. per Hussey and 9 E. 4. 14. it is made a question but not resolved 2ly Though it be a Sisp yet it is within the Statute of 21. Iac. and is helped by it for that Statute extends to more than Writs as may appear by the Statute and the Statute of 18 Eliz. Bill Original writ recâ—ipt touching original Writs extends to faults of bills although original Writs are only named for a bill is the same in substance with a Writ so here the Writ and precept are of the same substance 3ly it is the intent of the Statute and the Statute shall be taken by equity Hill 13. Iac. in this Court in Gregory and Brookes case this question was stirred but not resolved and Hobart denyes the 5th report f. 61. to be Law and there is no proceedings properly in superiour Courts by plaint Roll Iustice The Statute extends not to point of equity in inferior Courts for their proceedings are not so regular as the proceedings in the high Courts here at Westminster but they are by short notes Bring us books and move it again Creswell against Ventryes Pasc 24 Car. Banc. Reg. CReswell brought an Action upon the case against Ventryes for speaking these words of him Arrest of Iudgment in an action upon the Case for words Thou didst and dost receive thief stollen goods witnesse a feather bed tick in thy house and the cloath which thy mans suit was made of and thou knewest they were stollen The Plaintiff hath a verdict the Defendant moves in arrest of Iudgement that the words are not actioanble for one may receive stollen goods and yet not be guilty of Felony Becon Iustice The receiving of stollen goods is not felony but the receiving and comforting of the Felon is Felony Felony The Iudgement was stayed till the other should move Thynn against Thynn Pasc 24 Car. Banc. Reg. THynn brings an Action against Thynn to reverse a Iudgement given in the Comon pleas in a writ of Dowr Error to reverse a Iudgement in Dowr Hales of Councel with the Defendant in the Writ of Dowr in answer to the exceptions formerly taken said that the summons was well enough retorned as it is because it was made upon some part of the land within the Vil Long quint. E. 4. 2 H. 4. 13. 39. E. 3. 7. 2ly It is not necessary to make the Proclamation Proclamation where the summons is for the Statute intends not to alter the course of the summons 2ly The words of the Statute are satisfied for the actual summons in one Vill is a summons in the other Vills 3ly The meaning of the Statute is satisfied and the mischef intended to be satisfied by the Statute Hob. 173. Allen and Walkers Case Demand For the 2d exception to the Demand he held it good enough for in a Writ of Dower a Demand needeth not to be so particular as in other Writs so is it in an Assise 11 E. 3. 18. 43 E. 3. 6. 3 Ed. 2. Dower 161. and the reason is because the Wife demands not the whole Land nor can have the Charters which concern the Land to enable her to make so precise a Demand as may be in other Writs And as to Harpers Case that is objected I answer it agrées not with our Case Regist f. 36. 16 E. 3. Fitzh Quar. Imp. 147. and it is certain enough because it is of a Rectory and not of Tithes in gross 3ly The demand of Tithes is surplusage and it is all one as to say the Rectory cum pertinentiis Then as to the Objection that one thing is twice demanded I answer it is not so â—â—aâ—ement Dammages but demanded as part of a thing demanded in the Writ and a Demand in a Writ of Dower shall not abate the Writ though one thing be twice demanded for dammages shall not be twice recovered 4 E. 3. f. 52. Mich. 9 Iac. in the Common-pleas agreed so by the whole Court In Bluers Case 8 Car. one thing was twice demanded and yet the Writ was not
servitium amisit The Defendant pleads not guilty and thereupon is an Issue joyned and a verdict for the Plaintiff The Defendant moves in an arrest of Iudgement and for cause shews that the Plaintiff hath not set forth how the party was his Servant whether as an Apprentise or by retainer as he ought to have done But the Court said that the Record imiplies that he was his Servant at the time when the Trespass was done and that is enough and this is the usual form of declaring in this Action in the Common-pleas and in this Court also and so many of the Councel at the Bar affirmed and therefore let the Plaintiff take his Iudgement The King against Holland Pasc 24 Car Banc. Reg. HAles offered to the Court these reasons why Iudgement should not be given here in this Case betwéen the King and Holland formerly spoken to To stay Iudgment upon a Memorandum of a Record out of the Chancery Iudgement 1. That the Record is not here in this Court but only an extract of the Record out of the Record which is in Chancery and therefore judgement cannot be given here for a judgement must be given upon the Record it self 2ly It would be inconvenient if it should be otherwise for the Chancery is Iudge of the Inquisition and so there may be judgement one way in Chancery and another way here if the Record be not removed hither And there is difference where a transcript of a Record is removed out of a Court which cannot proceed upon the Record it self and where it is a transcript of a Record Transcript upon which Record the Court may proceed as it is in our Case 39 H. 6. 6. 14 E. 4. 1. 7. 3ly It appears not to this Court how the Commission and Inquisition are executed whether well or not and therefore it cannot judge of it Maynard on the other side prayes that judgement may be given here upon the memorandum of the Record sent hither out of the Chancery for these reasons 1. Every Court ought to give judgement on the one side or other therefore if the King may have judgement here the party may also have judgement 2ly The Record is here in this Court virtually by sending of the Memorandum of it hither and that is enough to give Iudgement upon 3ly The Chancery and this Court as to the giving of judgement here are as it were one Court 24 E. 3. f. 77. 4ly There is a ground for judgement to be given here and it cannot be given elsewhere for an Award in Chancery is no Iudgement Award and so there cannot be two several Iudgements one in Chancery and another here as Hales supposeth and in Lathams case the Record was removed as it is here and Iudgement given upon it in this Court. 5ly The Chancery is not to be Iudge for the Tranverse was there and the cause removed hither and we cannot go back thither again for if we should do so we should have Iudgement in no Court If it had been upon a Demurrer in Chancery then there might have been a Iudgement there but not now the Cause is removed by Traverse and a Patent shall not be corrected by the Enrolment but the Enrollment by the Patent under Seal Hales on the other side said That it is the Record of the plea that is transmitted out of the Chancery hither but not the Record of the Inquisition or Commission upon which it is found and how then can there be any Iudgement Roll Iustice said That the Amoveas manum is but a consequence of the judgement Amoveas manum and not the Iudgement it self and we may give Iudgement without the Inquisition against the King And the Record is transmitted hither to determine whether the King or the party hath right and the Chancery cannot intermeddle for by this means the Courts will clash which would be inconvenient Bacon Iustice spoke to the same effect Roll Iustice added this If an Office be found to entitle the King in the Chancery and it be transmitted hither and it appears to this Court that the office is not good shall not we give Iudgement against the King certainly we shall But the Court would advise and desired to hear the Kings Councel what they could say for the King Pasc 24 Car. Banc. Reg. AN Action of Trespass was brought for taking away divers parcels of Houshold stuff and upon non Culp pleaded the Plaintiff had a verdict Arrest of Iudgement in Trespass for taking away Goods The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good because divers words in it were insensible as 1. The Plaintiff declares for taking away unum Lenat Anglice a Mat whereas Lenat is no word in any Language to signifie any thing and therefore the Anglice cannot help it To this the Court answered That it is all one as if it were left out of the Declaration because it signifies nothing in it Dammages and so there is no dammages given for that thing which it should signifie 2ly He declares for taking away tria suspendia Anglice Pot-hooks or Hakes But the Court held this good enough 3ly He declares for taking away unum Adustum ferreum which are two Adjectives and signifie nothing To this the Court said if they signifie nothing then no dammages are given for it and therefore let the Plaintiff take his Iudgement Pasc 24 Car. Banc. Reg. VPon reading of the retorn of Collonel Tichborne Leiutenant of the Tower of London upon an habeas corpus directed to him For an alias habeas corpus with pain on the behalf of John Lilborn committed by order of both houses of Parliament for his contempt to them Cook of Councell with the Prisoner moved for an Alias habeas corpus with a pain because the Lieutenant had only retorned the Writ Alia but not brought the body of the Prisoner Bacon Iustice If there be sufficient matter expressed in the retorn to detein the Prisoner to what purpose should we grant an Alias Retorn therefore if the retorn be insufficient move your matter against it But Roll Iustice said the Lieutenant ought to make his retorn either against the jurisdiction of this Court or else he must bring the body of the Prisoner hither and it is in our power to set a fine upon him Fine for making an insufficient retorn Therefore the Court ordered that he should amend his retorn or else they would grant an Alias with a pain Hocker against Lamb. 24 Car. Banc. Reg. Trin. 23 ar rot 1592. HOcker brought a Writ of Error in this Court against Lamb to reverse a Iudgement given against him Error to reverse a Iudgment for error in the venire Licu câ—nus Hundred VVard in the Court at Colchester in Essex and assigns for Error 1. That the venire is awarded larger than the Declaration To this Roll Iustice said the Ward within Colchester
escape Local upon an affidavit that the escape touching which the Action was brought was in another County and not in the County where the Action was brought But Roll Iustice said that an escape in one place is an escape all England over and is not local therefore the venue is not to be tyed to one place more than another Yet let the other party shew cause why the venue should not be altred Trin. 24 Car. Banc. Reg. VPon a rule to shew cause why Iudgement should not be stayed in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes Exceptions answered offered in arrest of Iudgement in an action upon the Statute of 2 Ed. 6. for not setting forth of tithes Recital these exceptions for merly taken were answered 1. It was said the Statute was misrecited for the day when the Parliament began wherein the Statute was made is mistaken but to this it is answered that the Declaration doth not say per Statutum in Parliamento inchoat tali die but in Parliament tento tali die and the Parliament was held by prorogation the day that it is mentioned though it were not then first begun and so that is well enough To the second exception that the Declaration doth say that the Plaintiff was primo die occupator ac postea eodem die c. So that it appears not Proprietor that he was proprietor and so the Action may not lye for he may be occupator wrongfully and so not proprietor It is answered that the Declaration is that he was tali die possessionatus et ab eodem die occupavit and this shall be judged of a rightfull estate and it is said that he is rector ecclesiae and so he shall be intended proprietor of the Tithes if the contrary be not shewn The rule was to shew better cause Friday following else Judgement for the Plaintiff Sowthcott against Sowthcott Trin. 24 Car. Banc. Reg IN this Case formerly moved Exceptions answered taken to arrest judgement in an action for tithes Tithes and Iudgement stayed til the Plaintiff should move Maynard for the Plaintiff moved for Iudgement and to the exception taken on the other side that the word grain used in the Declaration is too general and may extend to grain not titheable viz. to rape-seed and cole-seed c. as well as to titheable and so the Declaration is incertain De said it is well enough for it is said grain growing in such a field by name which makes it certain 2 rep lib. Int. 176. 2d Coment f. 161. b. and for the word grain in comon understanding it is meant for corn and not for seeds though in a large exception it may extend to seeds also Hales on the otherside said that the word grain is incertain and signifies more than corn and also the word Garbae is too generall for it may extend to more than sheafs of Corn for bundles of any thing bound up may be said to be Garbae as well as Corn bound in sheafs and may extend also to grain not titheable Roll Iustice held the words in the Declaration Seminavit cum grano proper enough Comon intent and that by common construction it shall be meant with Corn and not with seeds 10 Car. Goldsmiths Case Hill rot 8. And for Garbae it is also well enough for it shall be taken according to common construction which is to signifie corn bound up and shall not be taken in the large extent of the word for bundles of any thing else And the Iury hath taken notice of it for they have found debet which had they not they could not have found the verdict so The rule was for the Plaintiff to take his Iudgement if cause were not shewn Friday following The King and Sr. Henry Spiller Trin. 24 Car. â—anc Reg. THe Court was moved for the quashing of divers Endictments wherein Sr. Henry Spiller was endicted for not repairing a bridge For quashing divers Endictments for â—or repairing of a Bridge the exception to the first was that it doth not set forth in what County the bridge lyes and for that exception it was quashed Another Endictment was for not repairing of Mays Bridge and it doth not shew that the bridge is in the High-way But to this Roll Iustice said that the Endictment doth say it is a Common bridge and that is enough and it is needlesse to say it is in the Highway Another exception was taken to this Endictment that it did not shew whether the bridge were a cart bridge or a horse bridge or a foot bridge or what other passage was over it and for that exception that Endictment was quashed To a third Endictment for not repairing the same bridge this exception was taken viz. It sayes that Sr. Henry Spillar was bound to repair the bridge ratione manerii which cannot be good but it should be rationae tenurae manerii Roll Iustice said It ought to shew that he is owner of the manour and although it do expresse that he is bound to repair it ratione manerii sui that is but implication that he is to repair it Implication and makes it not appear that he is possessed of the manor and upon this exception was this Endictment quashed Addition To a fourth Endictment for not repairing the same bridge this exception was taken that there is no addition of the County where Sr. Henry Spillar dwelt as the Statute directs and for this it was also quashed Yet afterwards because there was no certificate that the bridge was repaired the Court would quash none of them but said let him plead to them The Defendants Councel moved that he might plead but to two of them and that processe might be spared to the rest Roll Iustice Appear to all and plead and proceed in two of them and processe shall be stayed to the rest Burrel and Lancaster Trin. 24 Car. Banc. Reg. BUrrell brought an Action of Trespasse quare clausum fregit against Lancaster Arrest of Iudgement in Trespasse quare clausum fregit Variance Nomen aggregativum and had a verdict the Defendant moved in arrest of Iudgement and for cause shews that there is a variance between the writ and the Declaration for the writ is quare clausum fregit in the singular number and the Plaintiff declares of divers Closes But Roll Iustice said That it was well enough for the word clausum is nomen aggregativum and may contain many Closes and so may well enough agree with the Declaration And therefore let the Plhintiff take his Iudgement Glide against Dudeney Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 426. GLide brings an ejectione firmae against Dudeney in the Common pleas Error upon a Iudgement in an ejectione firmae in the Comon plea and hath a Iudgement by default against the Defendant whereupon a writ of enquiry issues out to enquire of the Damages and before the retorn
or else let the Plaintif take his judgement Trin. 24 Car. Banc. Reg. A Copyholder being sued in this Court for certain lands moved that the Steward of his Lords Court For a Steward of a Court to bring in the Court Rolls to whom he was a Copyholder might be ordered to bring in the Court-Rolls into this Court that by them he may be the better enabled to defend his title to the lands But Roll Iustice said He cannot be ordered to doe it by this Court therefore we will make no rule in it Trin. 24 Car. Banc. Reg. AN Action of Debt was brought for Rent in the Common Pleas Error to reverse a judgement in the Common Pleas fortent Misnosmer where the Plaintif had a Verdict and a judgement and a Writ of Error was brought in this Court to reverse this Iudgement The Errors assigned were 1. There is an Indenture recited to be between the Plaintif and Iohn Barber whereas it should have been Iohn Barker Roll Iustice answered It may be that he is known by the one name and the other and then it is well enough A second Exception was It is said per indenturam signatam and doth not say deliberatam and then it is no deed if it be not delivered To this Roll Iustice answered Deed. If he say per factum suum it is well enough notwithstanding for that implies it to be a perfect deed 3ly He declares for Rent of Houses in Kent street and doth not shew in what Parish Kent street is Adjourned Trin. 24 Car. Banc. Reg. THe Court was moved for a habeas corpus for a Prisoner in the Kings Bench Prison that he might be a writnesse in a cause to be tryed at the next Assises in Darby Shire But Roll Iustice answered we will grant no habeas corpus for this is but a trick of the party himself to gain his Liberty that he may go a hawking and hunting this long vacation But I have known it granted for one to be a witnesse at a trial at Yield Hall but at the charges and peril of the Party for whom he was to be a witnesse if he escape Mich. 24 Car. Banc. Reg. VPon a motion for a habeas Corpus for one in Execution upon a sentence given against him in the Court of the Admiralty For a habeas corpus for one in Execution upon a sentence in the Admiralty It was said by Roll Iustice That if one be sued in the Admiralty to a sentence and be in Execution upon it and be brought hither by a habeas corpus if upon the retorn it doth not appear that the Admiralty had not jurisdiction of the cause but it appears only that they had proceeded to a sentence against the rules of their own Court This Court will not deliver the Prisoner out of Execution Appeal for he ought to have made his appeal before he was taken in Execution And so is it touching the proceedings in other Courts of equity Cage Mich. 24 Car. Banc. Reg. ONe Cage was in Execution in the Kings Bench upon a Iudgement had against him for a hundred pound To vacate a satisfaction acknowledged upon a Iudgement The Plaintiffs Attorney by fraud without the consent of his Clyent acknowledgeth satisfaction upon this Iudgement afterwards the Attorney of the Defendant without the consent of his Clyent acknowledgeth another Iudgement for the same Debt The Plaintiffs Councel moved that the Defendant might be in Execution upon the first Iudgement and that the satisfaction acknowledged thereupon might be vacated Roll Iustice answered Commitment The Attorney ought to be committed for acknowledging the second Iudgement without Warrant But here are two frauds one of each side so that there is fraud against fraud and so the partyes are left to their remedyse one against the other but both the Attorneys shall be committed for their false practie And we will examine the whole truth of the matter Saturday next against Loveday Mich. 24 Car. Banc. Reg. THe Court was moved upon an affidavit that one of the Iurors that gave the verdict against the Plaintiff had a sute in law depending at that time with the Plaintiff and therefore that the tryal was not indifferent For a new tryal after verdict because a Iuror not indiste rent Challenge Tryal and therefore it was prayed there might be a new tryall But the Court said it could not be and asked the party why he did not challenge the Iuror for this cause at the tryal for want of which he had now lost that advantage Stradling and his wife against Boreman Mich. 24 Car. â—anc Reg. STradling and his wife brought an Action of Trespasse of Assault and battery Arrest of judgement in Trespasse Ioyn in Action and taking of a horse agianst Boreman and the Plaintiffs declare ad damnum ipsorum and have a verdict the Defendant moved in arrest of Iudgement and shewed for cause that the Baron and Feme cannot joyn in this Action but ought to bring severall Actions for the wrong done to each was severall The Iudgement was thereupon stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. AN Action upon the Case was brought for speaking these words Arrest of juogement in an action upon the Case He is gon and dares not shew himself for Debt and he is a Banckrupt for ought that I know the Plaintiff had a verdict the Defendant moves in attest of Iudgement that the words are not actionable because they are general and uncertain But the Court held that all the words taken together are actioanble but stayed the Iudgement for a week Mich. 24 Car. Banc. Reg. IVrors who appeared for a tryal at the Bar which fel off for want of a full Iury Iurors move for their charges prayed the Court they might have their charges because they came a great way and had attended long in town The Court answered them that it was their neighbours fault who did not appear that the tryal went not on for both the partyes are ready and if the cause had been tryed you should have had all your charges But now we can order nothing Mich. 24 Car. Banc. Reg. VPon a Retorn of a certiorari to remove an order of Sessions made against a Parish for not repairing of a high way Exception to an order and fine of Sessions Hales of Councel for the Parish took this exception viz. That the fine was set upon the Parish without any processe issued out against the Parish only upon a certificate of one of the Iustices of the peace made upon his own view that the way was not repaired and so the Parish was condemned before they were heard To this the Court answered That a Iustice of Peace may make a certificate upon his own view Certificate of the want of reparations of a Highway by the Statute Therefore bring a certificate that the way is repaired else we will do nothing for we
must not be too hasty to overthrow such presentments which so much concern the publique good And in this case if there be a conviction in law Conviction Travers and the fine levyed we cannot help it and now you cannot traverse for it is too late Sir Anthony Ashley Cooper against St. Iohn Mich. 4 Car. Banc. Reg. SIr Anthony Ashley Cooper brought an Action of Trespasse upon the Case for false imprisonment of him against St. John Arrest of Judgement in an action on the case and hath a verdict against him the Defendant moves in arrest of Iudgement and takes this Exception to the Declaration that it wanted vi et armis which ought to have been because this is not a meer Action upon the Case but in its nature it is an Action of Trespasse and therefore he ought to have been declared in with vi et armis Roll Iustice answered what say you to the Case Declaration quare fregit suum mill dam which hath been adjudged good without vi et armis as well as with vi et armis and in one case it shall be said to be an Action of Trespasse viz. with the vi et armis and in the other an Action upon the Case viz. without the vi et armis and Bacon Iustice cited the 9. rep The Earl of Shrewsburyes Case Roll Iustice It is a plain Action upon the Case as it may appear by reading of the Record for it is with an et quod cum Bacon Iustice said one cannot have an Action of Trespasse for the breaking of another mans fence but if he be damnifyed by the breaking of it Tresasse Case he may have an Action upon the Case against the party that broke it Ayre against Sils Mich. 24 Car. Banc. Reg. AYre brought an Action upon the Case against Sils Arrest of Judgement in an action upon an assumpsit Case upon a promise to pay certain arrerages of rent appearing due unto him upon an accompt made between him and the Defendant The Plaintiff had a verdict The Defendant moves in Arrest of Iudgement and for cause shews that an Action upon the Case doth not ly upon a promise to pay rent appearing due upon accompt for the rent was due by a reall contract and upon that the Plaintiff had remedy without the promise To this the Court said that this Action doth not ly for rent alone due upon a real contract but for the rent with other things it doth lye yet let the Iudgement be stayed for there is here no new consideration appearing to ground this promise upon but only the old consideration of Law for the payment of the rent and upon that an Action of the Case doth not ly for it is in the realty Tomkins against Jourden Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 96. A Writ of Error was brought to reverse a Iudgment given in an inferiour Court these Errors we are assigned Error to reverse a judgement given in an inferiour court 1. It is said in the stile of the Court that the Court was held per consuetudinem et literas patences which is not good for the Court cannot be held by both Roll Iustice This is not good 2ly Against the writ of Error it is objected by the other side that the writ of Error is directed to one and is retorned by another for the certiorari was to certyfie a Iudgement given before the Maior Aldermen and Recorder and the Iudgement certifyed is a Iudgement given before the Maior and the Aldermen and the Recorder is left out so that the Record is not removed and then the Iudgement cannot be affirmed Roll Iustice said the pleading is confused and Bacon Iustice said you have changed the stile of the corporation by your pleading If a Court be held by Custom Custom and after a patent be purchased to hold it and they hold it by the patent the Custom is gone but bring us a Copy of the certificate of the stile of the Court and in the mean time we will advise Pickering against Barkley Mich. 24 Car. Banc. Reg. Pasc 24 Car. rot 154. PIckering brought an Action of Covenant upon a deed of Covenants of Charter-party Demurrer upon a plea in an action of covenant whereby it was Covenanted that the Defendant in consideration of a certain sum of mony agreed to be paid to the Defendant for fraight of a Ship should make such a voyage and bear all losses and damage which should befall the Ship or Merchandises in her excepting only perills of the Sea and declares that the Defendant had not performed his agreement and for this he brings his Action The Defendant pleads that in the making of his voyage upon the Sea the Ship was taken per quosdam ignotos homines bellicosos whereby he was hindred in making of the voyage according to his agreement to this plea the Plaintiff demurs The question was in regard that in the Charter party perills of the Seas were excepted whether the taking of the Ship by these unknown men of War should be accompted a perill of the Sea or not according to the meaning of Merchants Twisden of Councel with the Plaintiff held it should not and so the plea was not good and that therefore the Plaintiff ought to have Iudgment and said this was not a danger of the Sea but a danger upon the Sea 2ly He said the party it may be might have prevented it by vigilancy or by making resistance and so it may be it was his own fault the Ship was taken 3ly The men of Warr that took the Ship were peradventure English men and then the Defendant is not to be excused for he may have his remedy for what he is damnified against them and cited 33 H. 6. f. 1. and prayed Iudgement for the Plaintiff Hales of Councel with the Defendant held that to be taken and robbed by Pirates is a danger of the Sea even as tempestuous winds and Shelfs and Rocks are And 2ly To that it is said the pirates may be English men we are not able to say of what Nation they were and therefore our plea is good in that point also and prayed Iudgement for the Defendant Roll Iustice said it was not well pleaded to say per homines ignotos Bacon Iustice said The Defendant doth not shew that he and his Ship was carryed per locos incognitos as he should have shewn Plea but Roll Iustice answered that it may be the Ship is yet kept upon the Sea but I suppose that Pirates are perils of the Sea and to this purpose a certificate of Merchants was read in Court that they were so esteemed amongst Merchants Yet the Court desired to have Granly the Master of the Trinity house and other sufficient Merchants to be brought into the Court to satisfie the Court viva voce Friday next following Iudgement was given this Term nil capiat per billam because the taking by Pirates
really a Copyholder and cited Shellyes case and prayed Iudgement for the Defendant Roll chief Iustice said This Case differs from surrendring into the hands of Tenants for it is into the hands of the Steward out of Court Surrend Admission which is good and the Lords acceptance of his rent is an admission But Bacon doubted and therefore the rule was for the Case to be argued again the next Term and then by reason of sicknesse I was absent But that Term held not by reason of the Kings death Dunch against Smith Mich. 24 Car. Banc. Reg. DUnch brought an Action of Debt as Executor for arrerages of a rent charge due to the Testator against Dunch Arrest of Iudgement in Debt brought by an Executor an occupyer of the land out of which the rent was issuing and hath a verdict The Defendant moved in arrest of Iudgement and for Cause shewed that the Plaintiff doth not shew any title that the Defendant hath in the Land but only sayes generally that he entred into the Lands and so it appears not that he is to pay the rent To this the Councel on the other side answered that the Plaintiff being but an Executor cannot know the title and therefore is not bound to shew it Roll chief Iustice said there can be no Iudgement for the Declaration is too generall But Bacon Iustice held the Declaration good enough Antea Brown against Poyns Mich. 24 Car. Banc. Reg. THe Case was this a man made his last Will and made two Executors For a prohibition to repeal an administration Prohibition Appeal the Executors dye in the life of the Testator the Testator dyes having two Sisters the eldest Sister procures Administration the younger Sister moves for a Prohibition to repeal the Administration because she being in equal degree of king ought to have equall share of the Administration But the Court answered that a prohibition lies not for you may appeal if the Administration be not rightly granted Mich. 24 Car. Banc. Reg. A Processe issued out of this Court for a Cart and Horses that were cause of a mans death as a deodand 12. Iac. To stay processe for a deodand and it was moved that there hath been a generall pardon by Parliament since that time by which deodands were pardoned and therefore it was prayed the processe might be stayed General pardon The Court asked whether there be not an exception of deodands or the Almoners interest in the pardon The Councell answered there is not The Court demanded by what words in the pardon are deodands pardoned The Councel answered by the generall words The Court ordered thereupon it should be stayed till the Almoner be heard what he can say Mich. 24 Car. Banc. Reg. THe Court was moved for a habeas Corpus for one that was taken in Execution by the Sheriff and was afterwards set at liberty For a habeas corpus for one taken upon one Execution Audita querela and after that retaken upon the same Execution The Court answered take it but you are in the wrong way for you ought to bring your audita querela The King against Bray Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry made upon a Lessee for years upon the Statute of 21 Iac. To quash an Endictment of forcible entry The exceptions taken to it were 1. It doth not appear by the Endictment that the Lessee had any title to the Land at the time of the force committed for the force is supposed to be done before the lease commenced 2ly The lease is supposed to be a lease for so many years if I. S. shall so long live and it is not averred that I. S. was alive at the time of the forcible entry made Averment Roll chief Iustice cited the Lady Morlyes case that there ought to be a direct allegation of the life Therefore let it be quashed Mich. 24. Car. Banc. Reg. THe Court was moved to quash an Endictment of Assault and Battery of an overseer of the poor villae de A. in executing of his office The exceptions taken to it were To quash an Endictment for assaulting a Collector for the poor 1. That there is no such officer as an overseer of the poor villae but it ought to be parochiae but the Court said it was well enough as it was though it had been more proper the other way 2ly The Endictment is for the Assaulting and beating a Collector for the poor in executing his office whereas there is no such office appointed for any one particular man by the Law for the Statute is that there shall be two Collectors for the poor in every Parish and so the office is joynt and not several But the Court over-ruled this exception also 3ly It wants vi et Armis Vpon this exception the Court bid the Councel move it again Gill against Crosse Mich. 24 Car. Banc. Reg. THe Plaintiff brought an Action of Debt against two as Administrators upon fully administred pleaded issue was ioyned Speciall verdict in Debt against Executors and a speciall verdict was found to this effect viz. that one of the Administrators had fully administred and that the other Administrator had assets It was urged against the Verdict that the issue that was found is impertinent and impossible Verdict Iudgement and so there can be no judgement given upon it But the Court answered that the verdict is good yet if Iudgement should be given upon it the Iudgement would be ill and Nevills and Greenwoods case Hill 7. Car. in the Exchequer rot 1189. was cited and it was said that Iudgement may be against that Executor who hath assets and nil capiat per billam against the other that hath fully administred But take Iudgement at your peril Preston against Holmes Mich. 24 Car. Banc. Reg. Trin. or Mich. 24 Car. rot 2052. VPon a special verdict found the Case in effect was this Arguments upon a special verdict upon a Will one in see having one Son by one venter and another Son by a second venter did by his last Will devise all his Lands to his wise for life and after her death to I. his eldest Son and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law and so the devise to be of no effect to make him come to the Lands by purchase Christopher Turner held that the devise is void because it sayes no more than the Law says for if there had been no such devise Iohn his Heirs should have had the Land and he cited Paramour and Yardlves Case in the Comentaries and Hob. rep Counden and Clarks case But it is objected that in this case the Law speaks one thing and the devise another thing and so the devise says not the same thing To this I answer there is no difference concerning the alteration of the Estate
was committed 3ly It is said intulit and expulsit in the singular number Endictment whereas it should be intulerunt and expulserunt in the Plural number because the Endictment is against divers and so it is false Latin 4ly False Latin The Endictment uses the word lignum for the tymber of the house whereas it should be maremium Twisden on the other side answered that the Endictment was good at least to the Assault and Battery though it fail in the other particulars The Court ordered the Defendants to plead to it and would not quash it Mich. 1649. Banc. Sup. THe Court upon the retorn of a Sheriff of a rescous made To quash a Rescous and read was moved to quash it for these exceptions taken to it 1. It is said feci warrantum meum Thomae Tayler and doth not say that Thomas Tayler was his Bayliff 2ly He doth not say for what cause he made his Warrant Warrant and so it appears not whether it was lawfull or not Vpon these exceptions it was quashed Mich. 1649. Banc. sup Vaux and Vaux against Steward VPon a verdict found for two Plaintiffs in an Action upon the Case upon an assumpsit Arrest of Judgement in an action upon an Assumpsit Ioyn in action The Defendant moved in Arrest of Iudgement and for cause shews that the Plaintiffs ought not to have joyned in the Action but ought to have brought several Actions The Case was this the several Cattel of the two Plaintifs were distreyned The Defendant upon consideration of ten pounds paid unto him by the Plaintifs did assume and promise unto them to procure the Cattel to be re-delivered unto them and because they were not re-delivered acordingly they brought their Action joyntly Promise entire Roll chief Iustice said the promise here is entire for the consideration is entire and so the Action may be joyntly brought Yet let Iudgement stay till the other move Postea Mich. 1649. Banc. sup IN a Tryal between Cave and Osby Observations upon a Tryal Presentation Licence Grendons case 11 Rep. Impropriation Vicarage for not setting forth of Tithes according to the Statute of 2 Ed. 6. These things were delivered by the Court. 1. That the King may present to a living by a Letter but it is a question whether he can do it by paroll 2ly There ought to be the Kings licence to make an appropriation of a Church and to endow a Vicar 3ly The King cannot make such a licence without matter of Record and it ought to be with a Condition to endow a Vicar and the endowment of the Vicar may be by a distinct instrument from the appropriation so that it be made at the same time when the appropriation was Mich. 1649. Banc. sup IN the Case of one Wright Robbery of the servant may be robbebery of the Master Robbery brought upon the Statute of Hue and Cry Roll chief Iustice said that if a mans Servant be robbed of his Masters Goods in the sight of his Master this shall be taken for a robbing of the Master And if one cast away his Goods to save them from a Robber and the Robber take them up and carry them away this is a robbery done to his person Coles against Sibsye Mich. 1649. Banc. sup Trin. 1649. rot 148. COles brought an Action of Trover and Conversion against Sibsye The Defendant pleaded the Statute of Limitation of actions in bar of the Action A Latitat in nature of an original The Plaintif replies that he took out a Latitat out of this Court against the Defendant within the time limited by the Statute which yet continues depending Roll chief Iustice said a Latitat out of this Court is in the nature of an original in the Common pleas and so hath been alwaies held to be Original Adjourned Mich. 1649. Banc. sup THe Court was moved to quash divers Endictments against the Inhabitants of the Parishes of Shoreditch and Hackney in Middlesex To quash Endictments of Parishes for not repairing the high way for not repairing the High ways The exception taken was that the Parishes are joyntly endicted whereas their offences are several and also not equal and yet both fined alike The Court quashed the Endictment and discharged the issues which were not returned but not those that were retorned Gardner against Jollye Mich. 1649. Banc. sup Pasc 1649. rot 189. IOllye brought an Action upon the Case against Gardner for causing him to be endicted of Felony as accessary Error to reverse a judgement in an action on the Case for suffering a Prisoner to escape that was convicted of Felony The Plaintif had a verdict and a judgement The Defendant brought a Writ of Error to reverse this judgement and the error assigned was that the party was endicted for a matter which is but a Trespass and not a Felony and so the Declaration is mistaken and an Action upon the Case lyes not Case But the Court answered that the charge of the Endictment is for Felony although the matter the party is charged with be not Felony and a scandal lay upon him by it and therefore the Action lies Vaux and Vaux against Steward Mich. 1649. Banc. sup THe Case between Vaux and Vaux and Steward Arrest of judgement in an action upon an Assumpsit was again moved in arrest of Iudgement The objection made was that the promise made amounted to a double promise and therefore the parties to whom the promise was made ought to have brought several Actions and not to have joyned in the Action as they have done But to this it was answered by the Councel on the Plaintifs part that the promise is entire and is not double for the consideration of the promise is entire viz. the ten pound which moved from them joyntly and not severally Roll chief Justice held Ioynt promise that it is an entire promise and a joynt consideration though the Cattel taken were several and therefore the Action may be joynt and if one lay out mony for a thing assumed to be done for a third person if it be not done an Action shall be brought upon the Assumpsit by him who layd out the mony Rippon and â—ortons case f. 1. but because a Case was cited out of Yelvertons Reports to be against the opinion of the Court therefore the Court ordered the Councel to bring that Case and in the mean time they would advise Antea Mich. 1649. Banc. super Christopher against How CHristopher brought an Action on the Case upon an Assumpsit against How an Executor Arrest of Iudgement in an Action upon the Case and declared upon a promise made by the Testator to the Plaintif to deliver certain goods in the possession of the Testator unto the Plaintif upon request and because the Testator had not delivered them accordingly the Plaintif brings his action The Plaintif had a verdict The Defendant moved in arrest of Iudgement and
for cause shews 1. That the breach of this promise was in the Testators life time and therefore the Action should have béen brought against him and is not now to be brought against the Executor 2ly The Testator did not promise that his Executors should deliver the goods but that he would deliver them upon request Request and there appears no request to be made to the Testator as there ought to have been 15 Iac. Hob. rep f. 300. Bodwells Case But Roll chief Iustice answered Executor That an Executor may be charged upon a collateral promise if there were a breach of it in the Testators life time and here is a good request and goes to all Therefore let the Plaintif take his judgement except better matter be shewed to the contrary and Osborne Mich. 1649. 1 Reipub. Ang. Banc. super THe Plaintif brought an Action upon the Case upon two several promises the Defendant pleaded non assumpsit Arrest of Iudgement in an Action upon the case Issue and upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of iudgement and for cause shews that there is no issue joyned as to the second promise alleged for he doth not conclude with petit quod inquitatur per patriam and yet there is a verdict found upon both the promises The Iudgement was arrested till the other should move Mich. 1649. Banc. super VPon a special Verdict the case was this A Case upon a special verdict argued Tenant for life the remainder for life the remainder in tayl the remainder to the right heirs of him in the remainder for life the remainder man in tayl levies a fine in the life of tenant for life And the question was whether by the levying of this fine the estate tayl were discontinued or no. To prove that the estate tayl was discontinued these Books were cited 1 H 7.22 Lit. Cap. Discents Sect. 34.14 Ed 3. Fitz. Avâ—wry 117.3 Ed 3. Fitz. grants 60.15 Ed. 4 9.2 Rep. Butlers case 5. Cooks Lit. f. 25. Pasch 13 Car. Hungates Case Banc. Reg. Dyer 339. Twisden to the contrary argued that the estate is not altered neither to the right nor by way of Estople 46 Edward 3. f. 23. Estople An Estople supposeth a thing to be done and therefore if the thing be impossible which is alleged by way of estople it can be no estople And one shall not be construed to doe wrong by an Act which may be interpreted so that by it he may doe no wrong Brooks Abridgement Grants 49. Roll chief Iustice The matter here is not how the estates shall pass and how to make them good but the Question is upon the forfeiture Forfeiture for he levies the fine as of an estate in possession and not of a reversion in fée and this is not upon the rule in Bredons case 13 Car. Sir Julius Caesars case an Acceptance of an estate or an Attornment by Tenant for life to a stranger is a forfeiture Jerman Iustice held there was no forfeiture But the Court said the Verdict was ill sound and therefore ordered it should be amended that the whole matter in Law might come in question Amendment Gray against Walye Mich. 1649. Banc. sup VVAlye brought an Action upon the Case against Gray Arrest of judgement in an Action upon the case for speaking these words of him viz. Iack Walye was questioned for stealing of a gray Mare with a snip in her ear and hue and cry went out after him and he durst not shew his face hereabouts The Plaintif had a Verdict and the Defendant moved in Arrest of Iudgement that the words were not actionable because they were general and uncertain words and it doth not appear the party was damnified by them nor how long ago they were spoken Roll chief Iustice said that the party was defamed by speaking of them and he hath laid it that he lost his Credit thereby Therefore let the Plaintif have his Iudgement except better matter be shewn But Nicholas Iustice doubted whether they were actionable or no. And Ask Instice nihil dixit Mich. 1649. Banc. sup AN Attorney of this Court that was within age Error against at Attorney in Court for appearing propria persona being within age Error in fact appeared to an Action propria persona and pleaded to issue and had a verdict and a judgment for him and upon this a writ of Error was brought here it being an error in fact because that being within age did not appear per guardianum nor by his Attorney and it was said that it is not helped by the Statute of Ieofails though it be after verdict And thereupon the Court stayed the Execution Mercer against Rule Mich. 1649. Banc. sup THe Court was moved For a Supersedeas attachment for taking out execution after a writ of Error brought and allowed Supersedeas Attachment Execution That a writ of Error was brought to reverse a Iudgement and that it was received and allowed and notwithstanding the Plaintif that had the Iudgement had taken out execution and thereupon it was prayed for a supersedeas to supersede the execution and for an Attachment against the party for his contempt to the Court. And it was urged by the Councel that moved That after a writ of Error is received and allowed the hands of the Court that gave the Iudgement are foreclosed from granting out execution and that the writ of Error is in it self a Supersedeas and cited Dyer 283. and therefore concluded that the execution is not well issued forth Twisden of Councel on the other side said that the writ of Error was not duly pursued because the roll was not marked and therefore the party might well take out execution But Roll chief Iustice answered that the writ was well pursued though the roll were not marked Yet if neither the roll be marked Notice nor notice given to the Attorney on the other side of the bringing the writ of Error if the party procéed to take out execution it is no contempt to the Court otherwise it is a contempt Contempt Supersedeas And it is the duty of the Clerk of the Errors to mark the roll and not the Attorneys and therefore take a Supersedeas quia improvide emanavit to stop execution Pym against Morgan alias Bambery and Baselye Mich. 1649. Banc. sup Hill 24 Car. rot 1062. IN an Ejectione firmae brought for the Mannor of Caledown Argument upon a special verdict in an Ejectione firmae The Defendant pleads Not guilty and upon this the Iury find a special verdict to this effect That Sir Thomas Morgan was seised in fée amongst other lands of the lands in question and that in 13 Car. he made a settlement of these lands to himself for life the remainder to his daughter Mary for life the remainder to the heirs of the first Tenant for life with a power of revocation
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
this trespass may plead by averment that he hath satisfied the trespass don already and aver with what Cattel it was done Jerman Iustice said the beasts ought to be named particularly for averia is a large word and signifies cattel of divers kinds and it is too general a word to declare upon But Roll chief Iustice answered where the thing it self is in demand and an action is brought for it as it is in an action of trover and conversion the thing ought to be particularly named but here the action is brought for damages for breaking his Close and eating his grass And if you had demurred to the Declaration Demurrer it had not been a good Demurrer but now it is after a Verdict which makes it stronger against the Defendant Nicholas and Ask Justices concurred with Roll so the Iudgement was affirmed Mich. 1649. Banc. sup THe Court was moved for a Prohibition to the Admiralty upon a surmise that one was arrested there for rescuing one out of the hands of a Messenger of the Admiralty For a Prohibition to the Admiralty who was taken by him by the warrant of the Court Contempt for a contempt to the Court in a sute depending there betwixt him and another Roll chief Iustice answered if the cause were maritine which was depending there the Court may examine a contempt to the Court in that cause but they cannot procéed criminally against the party that rescued him that did the contempt Therefore give them notice that they shew cause why we should not grant a Prohibition Prohibition Ireland against Michelborn Mich. 1649. Banc. sup Entred Mich. 24 Car. rot 111. MIchelborn brought an Action of Trespass against Ireland Error to reverse a judgement in Trespass vi et armis quare vi et armis clausum suum fregit and for driving and beating his Cattel The Plaintif had a Iudgement the Defendant brought his writ of Error to reverse this Iudgement The Errors assigned were 1. That it appears not by the Continuando how long the Trespass continued 2ly There is a discontinuance to part of the plea and a departure also Discontinuance Windham in answer to the first Exception said that it is diversis diebus et vicibus and it is without an usque and the continuance is but in aggravation of the Trespass and the Action it self is for the first Trespass which is the original and the diversis diebus et vicibus shall be intended before the Action brought 20 H. 6. f. 15.35 H. 6. s 4. Hob. rep 377. and the party may well enough averr in another Action brought for this Trespass that the Plaintif had recovered for it in an action formerly brought and for the new assignment he said it was but as a new Declaration But the Court bid the Defendant in the writ of Error advise concerning the second exception Roll chief Iustice said he believed the case cited out of Hobard was not well printed but something left out for it hath been ruled that after a verdict it is good enough to say one had imprisoned him for a long time but here is a Iudgement upon a nihil dicit which will alter the Case Ierman Iustice said it was considerable and fit to be advised on Holhead of Councel with the Plaintif in the writ of Error took another exception viz. that there was an issue joyned as to the beating of the Cattel and that is not tryed nor continued and yet damages are given entire for the chasing and beating of the Cattel Harris against Gibbons Mich. 1649. Banc. sup Pasch 1649. rot 303. GIbbons brought an Action upon the Case against Harris upon an Assumpsit Error to reverse a judgement in an Action on the Case and declared that the Defendant in consideration that the Plaintif should let unto the Defendant a Booth in Sturbridge-fair did assume promise to pay the Plaintif ten pound for the same and to pay the Plaintif for all such Wine and Hops as should be spent in the Booth during the Fair. The Plaintif had a Verdict and a Iudgement The Defendant brought a writ of Error to reverse this Iudgement and assigned this Error that it did not appear in the Declaration that the Fair was ended when the Action was brought and consequently that there was cause of Action But Twisden of Councel with the Defendant in the writ of Error said it shall be intended it was ended for the standing there during the Fair is the cause of Action Declaration Notice Roll chief Iustice took another exception That the Declaration doth not express that the Plaintif gave notice how much Wine and Hops he laid into the Booth during the Fair nor that he made any demand of the payment of any sum of money due and so the Defendant could not know how much money he should pay and therefore the Declaration is not good because it is too general Therefore advise whether you will maintain it or no and because the Councel desired not to be farther heard in it the Iudgement was reversed Mich. 1649. Banc. sup AN Action of Covenant was brought upon an Indenture for the payment of a certain sum of money at a certain time Arrest of Judgement in an action of Covenant The Defendant pleaded payment at the time and upon this an issue was joyned and a Verdict found for the Defendant The Plaintif moved in arrest of Iudgement and alleged for cause that the Issue was mis-joyned because the place of the payment was not alleged which is material and so there can be no Iudgement Maynard for the Defendant moved for Iudgement and said that the issue was well joyned and that it was not material to allege the place of payment because it is a personal Action and the place shall be intended where the Action is brought 1 E. 5. f. 3. And here he cannot allege an immaterial place and so it must necessarily be intended to be where the Action is brought Roll chief Iustice If you will argue it put it in the Paper But there is a difference between finding the money paid and the finding it not paid Denoir against Oyle Mich. 1649. Banc. sup VPon a Rule formerly made in this case to shew cause why a prohibition should not be granted to the Court of Policy for assurances For a Prohibition to the Court of policy for assurance Hales opened the case as formerly had béen done and prays that there may be a Prohibition granted because the party may have remedy here as well as in that Court and so this Court ought to be preferred and the contract here hath no relation to merchandizing and so it doth not properly belong to that Court Serjeant Glyn of Councel with the Defendant prayed that there might be no prohibition granted because it hath not béen known that even such a prohibition was granted and he recited the Statute made for assurances of 43 Eliz. and said this
Plaintif demurs The Court said this Debt due upon the bond became not due to the Husband for it is a thing in Action and therefore the plea is not good Iones against Blunden Hill 1649. Banc. sup Mich 1649. rot 34. THis Case formerly spoken to was again moved by Wild Whether a good tryal or no. who held that in regard that the matter triable ariseth from two places and so the venire may be from both places yet it is well enough if it be from any of them and the Court hath jurisdiction in both places and therefore the tryal is well enough in this case Twisden on the other side said that here are two issues in tryal and so it is not within the Statute of Ieofails for that is of force only where one issue is tryed Roll chief Iustice answered here are not two issues for you have made them one by pleading and so it is within the Statute of Ieofails and helped by it Ierman Justice to the same intent Issue Ieofails and so Nicholas and Ask Iustices Roll chief Iustice said that the issue is joyned upon the matter arising in both places and yet it is well enough for the principal matter was in Sâ— Clements Danes Therefore let the judgement be affirmed except better matter be shewn Antea Adstone against Hunter Hill 1469. Banc. sup ADston brought an Action upon the case against Hunter and his Wife for these words spoken of the Plaintif by Hunters wife Arrest of Iudgement in an Action on the Case viz. Iane Adstone did bewitch my good man innuendo her Husband Vpon Not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of judgement that the words were too general and uncertain to raise any scandal and therefore an Action could not be brought for speaking of them Shaftoe of Councel with the Plaintif held that the words are actionable because they declare an Act or thing done and the party is scandalized by the words 4 rep â—eames his case and the words my good man are words well known to express her Husband by as 7 Iac. to say Thou art a healer of Felons was well understood to mean a Concealer of Felons and if the words good man be incertain yet they are certain enough to shew that some body is bewitched for the Act done is certainly enough expressed and the Plaintif is thereby scandalized and besides it is after a Verdict and by it they are made certain and damages are given for speaking them Mich. 15 Car. Com. Banc. Stones case rot â—36 Roll chief Iustice said These words Thou hast bewitched a man are actionable it is a scandal to say One hath killed a man by Witchcraft and he held the words actionable Ierman Iustice said they could not be actionable because by them there is no act of witchcraft expressed Nicholas Iustice said the words are not actionable for thou hast bewitched one may be spoken in a good sence words are but wind spoken in passion sometimes and other times in Iest or merriment Ask Iustice said that the words tend to scandal as they are spoken Averment and shall be intended that she hath bewitched one by Diabolical Art And Roll chief Iustice said It is not necessary to aver what Act of Witch-craft was done And these words Thou hast bewitched me and my Aunt have been adjudged Actionable in this Court It was adjourned to be argued again the next term Hill 1649. Banc sup THe Court was moved to quash an Order of a private Sessions of the peace that was removed hither by Certiorari The Order was To quash a Order of a private Sessions of Peace that one should contribute to half the charge towards the keeping of a Bastard Child because he did suffer a Souldier to get the Child upon the body of his Maid servant The Court said this was not within the Statute of 18 Eliz. and therefore let the Order be quashed Hill 1649. Banc. super A Prohibition to the Court of the Admiralty was prayed for Biâ—ckes a Clark of this Court for libelling against him there for prosecuting a matter at the Common Law which they pretend to belong to their Court For a prohibition to the Admiralty and for granting an injunction against him to stop his proceedings The Court answered there is no libel here this is but a citation to appear and is no Injunction against him but because upon the citation there appeared to be matter of Prohibition contained in it A Prohibition was granted Saunderson against Raisin Hill 1649. Banc. sup VPon a rule to shew cause why a Iudgement should not be reversed To amend a Record after Errore assigned the Court was moved that the Roll wherein the Error assigned was might be amended according to the Original which is right though the Nisi prius Roll be not so Holhead on the other side prayed there might be no amendment but the Iudgment reversed for if Iudgement be given upon an erronious Declaration which is the ground of the Action as it is here it is not good nor is amendable The Court answered this is the fault of the Clark who had the original before him which is the ground of all Amendment and by which he ought to form the Declaration But the matter is that here it is after a Verdict and it will be perillous to attaint the Iury though it being the Clarks fault it be amendable But let it rest till the next term and in the mean time we will advise Williamson against Mead. Hill 1649. Banc. sup Mich. 1649. rot 428. VVIlliamson brought an Action upon the Case against Meade Arrest of Judgement is an action upon an Assumpsit and declared upon three Assumpsits made by the Defendant to the Plaintif that the Defendants son should pay such a sum of money to the Plaintif for his boarding with him when he should be thereunto required upon non Assumpsit pleaded and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement That the Plaintif doth not shew that he did require the Son to pay the sum of money which the Defendant did assume should be paid upon request but only saith that the Defendant licet saepius requisitus non solvit The Iudgement was arrested till cause should be shewn to the contrary The same day it was moved again and the Councel urged that the request was not necessary to be made and prayed for judgement But Roll Chief Iustice answered that this was a collateral promise Request and therefore the request must be averred to be made to the Son Therefore the Plaintif can have no judgement and so nil capiat per billam was ruled to be entred Hudson Hill 1649. Banc. sup THe Court was moved that there was a scire facias issued out to certifie Errors For time to assign Errors and time was desired to assign them But the Court answered
him out of any County to the Courts at VVestminster notwithstanding the Statute Hamond against Kingsmill Pasc 1649. Banc. sup HAmond a Iustice of peace brought an Action upon the Case against Kingsmill Arrest of in an action â—â—r words for speaking these several words of him viz. Mr Hamond did of his own head put into Mores confession that he stole the Lambs And 2ly That he was a debauched man and is not fit to be a Iustice of Peace Vpon not guilty pleaded and a verdict for the Plaintiff The Defendant moved in Arrest of Iudgement that none of the words were actionable or at least the last words are not and so Iudgement cannot be given For the first words he said they ought to be taken in mitiori sensu and they may have a good construction viz. that he framed the confession without being helped by any other body And for the second words that he was a debanched man they cannot touch his office at the present Mich. 24 25. Eliz. C. Banc. 1. because they are spoken in the preterperfect tence not in the present tence The Court said that the words was a debauched man are incertain words Therefore take Iudgement for the first words and nil capiat per billam for the second except cause shewed to the contrary Iennings against Lee. Pasc 1649. Banc. sup IEnnings brought an Action of Assault and Battery against Lee For a repleader because an immaterial issue joyned The Defendant pleaded non cul to the Battery and pleaded a special justification as to the Assault It was prayed there might be a repleader granted because the issue joyned is immaterial The Councel on the other side prayed for Iudgement Wild held that there is an Issue joyned for the Record faith so and the Iury have found the Issue and if it be ill it is not helped by the Statute and so there can be no Iudgement All issues are not joyned by an expresse affirmative and an expresse negative for if it be but by implication it is good enough An immaterial Issue is not helped by the Statute but an informall issue is helped and here the issue is immaterial 32 Eliz. Lovelace and Griffin rot 934. Trin. 22 Car. Coles case rot 932 Banc. Reg. 23 Car. More and Clipson and prayes for a repleader Serjeant Parker on the other side said the cases cited were not to the purpose as to the Case at the Bar for here is a good issue joyned to one thing pleaded if not to the rest Roll chief Iustice held that where there is an immaterial issue there ought to be a Repleader and it is not helped by the Statute and there can be no Iudgment for the matter is not putin tryal Repleader and for this cause it would be unreasonable to give Iudgement Ieofail Issue and this is an immaterial issue Trin. 9 Car. entred Mich. 8 Car. rot 366. Tayler and Sparks an affirmative and an implyed negative make a good issue though it be not an express negative Therefore replead Hurd against Lenthall Hill 1649. Banc. sup Entred Mi h. 1649. rot 568. VPon a special verdict in an ejectione firmae Question upon the words of a will whether a joyntenancy or a tenancy in Common The Case upon the words of a Will was this Lands were devised to two daughters equally to be divided and to the Surviver of them and to the Heirs of the Body of the Surviver of them Maynard held that here is a joyntenancy because otherwise the Will cannot take effect in all parts Hales held that there is a tenancy in Common and not a joyntenancy nor any crosse remainders Roll Chief Iustice said That the words equally to be divided in a Will Ioyntenant Tenant in common do make a tenancy in Common by construction but in a grant it would be otherwise but here upon the entire Will it doth not appear that the Lands should be divided but that there should be a Surviver And the Land was intended for a security for a portion and that the devise should stand till the monyes should be paid And in a Will the last words of it do explain the first words but it is not so in a grant Will. Grant All the Iudges agreed in opinion with the chief Iustice and Iudgement was given for the Plaintiff nisi causa c. Pasc 1649. Banc. sup THe Court was moved for a Certiorari For a certiorari to the Lord Maiors court of London Certiorari to the Lord Maiors Court of the City of London to remove an information exhibited in that Court against a Woodmonger of London grounded upon an Act of Common Councell The Court answered we cannot do any thing in it if it should be removed hither if it be grounded upon an act of Common Councel but if the Act of Common Councell be against Law we may grant a Certiorari Adjourned till Friday next to hear Councell on both sides Lamb against Duff Pasc 16â—â— Banc. sup VPon an Affidavit the Court was enformed that Lamb had arrested Duff after a verdict found for Lamb against him to the intent For false practice that he may have him in Custody when the Iudgement is entred against him and for no other cause as appears by his own confession it was therefore prayed the party may be set at large The Court made answer that this was a strange and an irregular course and ought not to be If one take out a latitat against one and have no cause of Action against him the party may have an Action of the Case for it Case Attach nt Take an attachment if he will not discharge the party or else let him shew cause to morrow why he should not discharge him Hollingworth against VVhetstone Pas 1649. Banc. sup HOllingworth brought an Action of Debt upon a single obligation against Whetstone Demurrer to a plea in debt upon a single obligation Bar. Abatement The Defendant pleaded payment of part of the sum since the Action brought in Bar of the Action To this Plea the Plaintif demurred The Court answered the plea was not good in Bar of the Action but in abatement of the Writ it had been good Therefore let the Defendant shew cause why Iudgement should not be against him upon the demurrer Gibbon against Kent Pasch 1649. Banc. sup Pasch 24 Car. rot 60. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas Error to reverse a judgement in debt upon the Statute of 2 Ed. 6 in an Action of Debt brought upon the Statute of 2. Ed. 6. for the not setting forth of Tithes The Errors assigned were 1. That it doth not appear that the Lands sowed do lye in the Parish that is laid in the Declaration 2ly The Plaintiff hath not intitled himself well to his Action for the Statute of 3â— H. 8. is taken away by the Statute of 13 Eliz. 3ly The Statute is
agreed that by the conference set forth in the Declaration it is agreed that there was a Bastard Child and it is a scandal to the party whether there were a Bastard Child or no and if there were none you ought to shew it on the Defendants part Therefore let the Plaintiff have his Iudgement Elsy against Mawdit Trin. 1650. Banc. sup Pasc 1650. rot 409. THe Case of Elsy and Maw dit was again moved Arrest of judgement in an action for words wherein the Plaintiff had a verdict against the Defendant in an Action upon the Case brought against him for speaking these words of him Thou Sirrah art a rogue and a run-away rogue and didst run away at Oxford and art a rogue upon Record at Oxford upon a motion in arrest of Iudgement Iudgement was stayed till the Plaintiff should move Hales now moved for Iudgement because the words are actionable for they make the Plaintiff to be such a Rogue as may be endicted within the Statute and receive corporal punishment But Twisden denyed it Roll chief Iustice held it was within the Statute Yet the Court would advise In this case Ierman Iustice said That if one say that another is forsworn in a Court of Record the words are not actionable but if he say that he is forsworn upon Record the words are actionable But Roll chief Iustce held there was no difference between the words but that they are both Actionable Antea et Postea More against the Earl Rivers Trin. 1650. Banc. sup Mich. 1649 rot 588. MOre Arrested the Earl Rivers by a bill of Midlesex in a plea of Debt The Earl was therupon brought before Mr. Iustice Nicholas to put in bail Earl Rivers case touching privilege of pecrage and not being able to put in sufficient bail according to the course of the Court was committed to the custody of the Mareschal of the Marshalsea the Earl being in custody brings himself into Court by a habeas corpus and there pleads his privilege of his peerage and sayes that he ought not to be arrested and demands Iudgement of the Writ and prayes to be delivered to this the Plaintiff demurred Hales of Councel with the Earl argued to divers points but I could not here him well But the main question he insisted upon was whether that by taking away the house of Lords in Parliament whereby their voice and place in Parliament was gone the Privilege of his peerage not to be arrested for Debt was also taken away and he argued that it was not for he said that at the Common Law no capias did lye against a Peer Capias and the Statute of E. 3. which gave a capias for Debt against others did not give it against a Peer and it doth appear here that the Defendant is really an Earl and not in nomination only and he cited 27 H. 8. f. 22. b The reasons he said why an Earl had the privilege not to be arrested are two The first is in respect of the dignity of his person being called comes a comitando rege as some have thought and he is called by the King consanguineus noster The second is in respect of the presumption of his sufficiency of estate in lands to be summoned by and not by reason of his place in Parliament for they have the privilege not to be arrested as well in the vacancy of Parliaments as when the Parliament doth sit and the privilege of Parliament is that he shall not be sued but the privilege of peerage is that he shall not be arrested in his person and so they are distinct privileges and by taking away the Lords house the former privilege is taken away but not the latter and this privilege annexed to the person not to be arrested may belong to a person that hath not the privilege of Parliament as for example unto Widowes of Peers which could not be arrested and yet had no place in Parliament so that the excluding them from the Parliament doth only take away their privilege of Parliament and not their privilege of peerage and Nevlils case is that the privilege not to be arrested belongs to them in respect of the dignity of their persons 9 Rep. Salops case And it hath been a question whether comes be so called a comitando rege or in respect of their Counties whereof they were Earls and I conceive the latter derivation is the truer and then the taking away the King takes not away their privilege for the Counties remain 2ly Earls have by intendment sufficient fréehold to enfcore them to come in and answer at this day and therefore are not to be arrested and imprisonment of a mans person for debt was but a suppliment to make him answer where he had not sufficient freehold which we cannot intend here Nat. brev f. 93. And an Earl shall be amerced higher than another man in regard of the presumption of his freehold and Earls are called majores Barones in this respect 7 E. 4 Nevils case and the widow of an Earl had the privilege not to be arrested for the two very reasons that her husband had it so was it of a Bishop Abbot and Prior of England but otherwise it was of a Bishop that had a Bishoprick out of England And the late Statute that takes away the Kingly office doth not take away their names and dignities nor the presumption that they have fréeholds and therefore they are not to be arrested and their will be since the Act no more a failer of right than there was before and so he prayed the Writ might be abated Abatement Roll chief Iustice answered your Clyent ought to have prayed the Writ might have abated before he was turned over to the Marshall of this Court◠for then he was in Midlesex where he was arrested but now it is too late for now he is in custodia Marescalli Declaration and any body that hath cause of Action against him may declare against him Ierman Iustice said that the Writ is now determined which you pray to have abated so your prayer is to no purpose Roll chief Iustice said that the dignity of the person of an Earl may relate to him as he is Peer of the Parliament and the other presumption that he hath sufficient freehold may also fail but it doth not appear here by averment that he hath not freehold therefore it may be a question whether there shall be intended a sailer of Iustice for want of freehold if the party should not have been arrested and he agreed that an Earl as a Peer of Parliament had a double privilege one of his person to be free from arrests Arrests the other of his Estate to be free from sutes and he said if it had appeared by averment that the party had freehold it had been good without doubt to free him from arrests Ierman Iustice said he is now in custodia and the Declaration against him is good and now
take a procedendo nisi causa ostensa fuerit in contrarium Antea Davis against Ockham Hill 1650. Banc. sup Mich. 1650. rot 557. DAvis brought an Action upon the Case against Ockham for speaking these words of him Demurrer to a plea in an Action for for words The knave the Apothecary that married my sister hath poysoned my Vncle and I will have him taken up again to hang him The defendant pleaded an accord betwixt him and the Plaintiff that whereas the Plaintiff had done a Trespass against him that one Trespass should be set against the other To this plea the Plaintiff demurred and Twisden said the plea was not good and cited 16 Ed. 4. f. 89. and prayed Iudgement for the Plaintiff Latch of Councell with the Defendant said that the Accord was executed on the Defendants part and therefore may be pleaded in Bar. To this Roll chief Iustice answered Bar. how have you discharged the Accord for you do not shew it Latch took Exceptions to the Plaintiffs Declaration 1. That the words set forth are not actionable for it doth not express that the Plaintiff wittingly poysoned the Defendants Vncle or that he did dye of the poyson and cited Hob. rep 8. Miles and Iacobs case and 275. Fleetwood and Caveleys case 2ly There is no Communication expressed in the Declaration to be of the Vncle and it may be spoken of another Vncle and the innuendo will not helâ— it because he may have divers Vncles Twisden answered that it is implyed in the sence of the words that he poysoned him feloniously and so consequently wittingly And 2ly He saith that he will have him digged up and so it must be intended that he dyed of the poyson Roll chief Iustice held that the words are actionable Case Bar. And 2ly That the Defendants plea in Bar is not good Ierman Iustice held the plea in Bar not good but he doubted whether the Declaration was good for it doth not appear thereby whether the party dyed of the poyson and the latter words help it not Nicholas Iustice and Ask Iustice agreed with 〈◊〉 Roll in all and thereupon the râ—le was Iudicium nisi Lundi Suivant Custodes c against Maine and Serjeant Hill 1650. Banc. sup A Ioynt Information was exhibited against Main Serjeant 2 Iustices of Peace for not enquiring of a Ryot and a verdict found against them Arrest of judgment upon an information found The Defendants move in Arrest of Iudgement and by Hales shew for cause that the information ought not to have béen joynt against them but several because their offences are several and not joynt and here one of them is acquitted and so judgement cannot be given against the other that is found guilty Roll chief Iustice answered That as an Attachment in a Prohibition is several Execution so the execution here may be several and it is not material though one be acquitted and the other found guilty Ierman Nicholas and Ask Iustices to the same purpose It was then said that it is not necessary that the next Iustices only should remove a force but all the Iustices of the County are bound to it Force And these words in the Statute viz. That the 2 next Iustices shall do it are put but for conveniency and the more speedy execution of Iustice Nicholas Iustice doubted of this Judicium nisi pro custodibus Ailet against Watless Hill 1650. Banc. sup Trin 1649. rot 200. IN an Action of Trespass and Ejectment Special Verdict in Trespass and Ejectment there was a special verdict found upon which the case fell out to be this An Infant bargains and sells land and is vouched to warranty and comes in upon the Voucher and thereupon a common recovery is had and upon this the question was whether this be such a recovery that the Infant cannot avoid by Entry Hales held it could not be avoided but did bind the Infant during his life but I could not hear his reasons Wild of Councel on the other side argued that the Infant was not bound by the recovery because as an Infant cannot alien his lands so neither can he suffer a common recovery and cited 6 rep 28. 2ly No record made by an Infant can bind him and for this he cited 26 Ed. 3. Fitz. per que serv 24.41 E. 3. f. 3.44 E. 3.10.9 Ed. 4 3â— and though it be breve Amicabile and by consent yet it binds not and 9 Car. Newports case where a recovery suffered by a Guardian was adjudged good comes not to our case and for the intended value in a recovery that is not material to make it binding for it is but a fiction and not a real value Roll chief Iustice demanded whether a fine be not breve amicabile Fine Error Recovery and yet he said that that binds an Infant until it be avoided by writ of Error And he said that the Infant is not bound here but the question is whether he can avoid the recovery by Entry or must bring a writ of Error to avoid it And he held that a recovery suffered by a Guardian is not good notwithstanding the opinion in Newports case Hales replyed that the recovery here is binding till it be avoided by a writ of Error and that the Infant cannot avoid it by his Entry though an Infant may avoid a deed by Entry although it be enrolled And here appears no consent of the parties and the party cannot shew it and here is a formal judgement given which binds till it be reversed by a writ of Error Roll chief Iustice Entry An Infant may avoid a matter in paiis by Entry but not a matter of Record and here is a proper way by the law to avoid it namely by a writ of Error which is also matter of record and of as high a nature Ierman Nicholas and Ask Iustices to the same effect and so judgement pro Defendente nisi Powell against Hopkins Hill 1650. Banc. sup Hill 23 Car. rot 787. IVdgement was given in an Action of Trover and Conversion for the Plaintif The Defendant brought a writ of Error Error to reverse a judgement given in a Trover and Conversion and the Exception taken was to the Declaration wherein the Plaintif among other things declared of a Trover de ducentis ponderibus aeris ducentis ponderibus plumbi Anglice of Brass and Lead and there wants an Anglice for the ponderibus so it is uncertain what the quantity of either are And upon this Exception the rule was that the Iudgement should be reversed nisi c. Denton against Caket Hill 1650. Banc. sup Trin. 1650. rot 150. DEnton brought an Action upon the Case against Caket for speaking these words Demurrer to a plea in Bar of an Action upon the case for words He and his fellows have stollen her having speech of a Cow of the Defendants and I do charge him with flat felony By reason of which words
of the first Intestate and after moved the Court that he might have a scire sacias to revive the Iudgment obteined by the former Administrator But the Court answered that he could not have it but must begin a new Action for the debt against the party Hill 1650. Banc. sup ONe was endicted for speaking these words against a Maior of a City To quash an endictment viz. you are a forsworn man and have broken your oath Hales moved to quash the endictment because the words have no reference to the Maior in respect of his office Ierman Iustice answered that the speaking of the words is a breach of the good behaviour and thought it fit the Defendant should plead to the endictment to which the Court at first enclined But afterwards ruled the other party to shew cause on Monday following why it should not be quashed The Countesse Rivers case Hil. 1650. Banc. sup THe Countesse Rivers was arresten by a bill of Midlesex and prayes in Court by her Councell that the Writ may abate Arguments touching privilege of peerage not to be arrested and the Precept and pleads her patent whereby she was created a Countesse and so pleads that she ought not to be arrested Latch of Councell against the Countesse argued that her patent was not good because it wants the words of investiture which are materiall words in the making of an Earl or Countesse for although the Act of investiture may be omitted because she is a woman and she cannot be girt with a sword yet she may be cloathed with a mantle as it is in the Institutes f. 16. and so was it in the case of Ann Bullein that was made Marchioness of Winchester by King Henry the 8. and of the Lady Finch made Countesse of Winchelsea by King Iames 6 Iac. Pasch 1. but in this Case there was a non obstante to dispence with the clause of investiture and in the viscount Barkleys case the patent whereby he was made Earl of Nottingham was adjudged naught for want of this clause 2ly It doth not appear by the patent that she is made an English Countess and then she hath no privilege 8 Rich. 2. Banc. Reg. 204. 11 E. 3. Banc. re 473. Neither is there any relation to the patent to any place of which she is made a Countess For although the patent be sealed with the English broad Seal this is not materiall for outlandish honours may be granted by the broad Seal of England 3ly The cause that she shall have privilege of an English Countesse is not material because she is not made an English Countess and she is no Countess to have privilege against the Common Law although she may it may be have her privilege in point of honour in the Marshalls Court and Heralds office because there is no publique good and service in making her a Countess 43 E 3.4 for being a woman she cannot be imployed in Arms or otherwise for the publique And an Embassador cannot have privileges granted him which do not concern him as an Embassador Dyer 60. and 1.1 H. 7. rot 24 C. Banc. The King cannot grant one to be exempted from arresting as it is in Cooks Mag. Char. Pasc 7 H. 8. rot 66 C. B. for the reason of that clause of Magna charta nulli negabimus Iusticiam The King cannot grant a Sanctuary to protect men from the arrests of his subjects 29 Ass 34. Keiw 190. And there is no instance to be given of a woman made a Countess that was ever frée and protected from arresting In the Statute of 20 H. 6. C. 9. for Earls wives and 21 H. 8. to qualifie Chaplains there is no notice taken of Countesses by creation but only of Countesses dowagers or Countesses by descent 6 rep 9. C. de Rutlands case and Ann Bullein was tryed per pares as she was Queen and not as she was Marchioness of Winchester And further the privileges of Earls and Countesses are now extinct for the cause of those privileges viz. the King and house of Lords are extinct and gone and the privilege of being free from arrests is a privilege executory and not executed Neither doth the sufficiency of their possessions only give them the privilege not to be arrested but their publique scrvices to the State which is the final cause of the privilege and the other was but a partiall cause and not the sole cause Reliefs were payed by Barons and Earls when Earldoms and Baronies were created but they are not now payed as they were then but according to the value of the possessions now and Amercements of Earls and Barons were equall The privileges of Earls and Barons was derived originally from Soldiers after it was derived to Bishops and great Counsellors and so it appears that they were privileged in respect of publique imployments and not by reason of their revenues All the Abbots and Priors had the privilege not to be arrested yet all were not Lords of the Parliament 21 E. 3. Mich. 59. Tres Mich. 7 H. 7. pl. 7.31 E. 3 process 54.27 H. 8.7.7 H. 6.11.29 E. 3. f. 30. Dyer 315. And a Iudgement without a Capiatur was in Trespass against a Bishop because the King was to have no fine 14 H. 7.21 But it is not so in a temporall peer where the King is to have a fine The privileges have severall expressions and the reasons for the privileges of the lay peerage is fully expressed in the Writs directed to them Regist 287.247 Rast Exigent Britton 88.10 H. 4.15 per Hull 14 H. 6.2 per Newton 39 E. 3. f. 35. Hill 14 Eliz. Dyer 314.3 H 6. f. 38.48 E. 3. f. 3.35 H. 6.46 for other privileges they are not allowable And now also all tenures as well as the House of Lords is taken away by the late Act and though her privilege do continue yet she hath not taken the right way to have it allowed for she ought to have brought a writ out of the Chancery to have it allowed and not to have done it dy a dilatory plea 8 H. 6.9 10. and the Patent cannot try whether she be a Countess or not 9 rep 31. Inst 16 b. 6 rep 63. And lastly mischief and misery will ensue to many if this privilege should be allowed and the very matter speaks for it self and so he prayed judgement for the Plaintif Hales of Councel on the other side prayed the privilege might be allowed and he followed Latch in the points of this Argument And first he said that the thing grounded by the Patent is only in creation of the dignity and there is no need here of investiture for if there were then a recital of it should be also necessary but because it needs not therefore it needs no recital of it in the Patent Seldens Tit. of honour f. 876.21 R. 2. There is a recital of an Investiture but there was no Investiture and so it was not material and a non obstante is to no
the power for it ariseth partly out of her interest and partly out of her Authority and both may well stand together and the Estate made out of both is a good Estate or if not the Estate may be intended to arise out of the power given her to make such an Estate and not out of her interest and the joyning of her daughter is not materiall though no good estate be derived from her and so he prayed Iudgement for the Defendant Roll chief Iustice It is usual in the West of England to make Estates for lives upon the old rent but it is not here expressed of what nature this manor is or whether it used to be let and here is no limitation to let for lives But here either the laster words are idle or else the Feme hath such a power that she may destroy the remainder And itsh all not be intended that he trusted his Executrix with more than he gave her and the words of the Will do not express that and the question is how it shall be interpreted The words may be interpreted Cumulative Interpretation otherwise the feme hath power to destroy the remainder which would be a hard construction To which Nicholas assented Roll chief Iustie The intention of the Testator is not cleer to give this power to the Feme but if it did appear to be his meaning it might be otherwise and here it is in a Will And the Verdict is not well drawn up for the Case might have been made better for all the land may be in Demesite for ought appears by the Verdict Adjourned to be argued again Postea VVebb against Wilmer Pasch 1651. Banc. sup Hill 1650. rot 309. VVEbb brought an Action of Debt for rent reserved by him upon a lease for years made to Wilmer Arrest of Iudgement in Debt for rent reserved upon a Lease for years and obtains a Verdict The Defendant moved in Arrest of Iudgement and alleged for cause that the Plaintif had abated his writ The case was this Webb leaseth certain lands to Wilmer for years reserving a rent with a clause of re-entry for not payment the rent being behind the Lessor brings an Action of Debt for the rent and pending the sute re-enters into the land and after the Lessee re-enters The question here was whether the writ once abated by the Plaintifs entry Reviver Abatement pending the writ were revived by the Defendants re-entry Roll chief Iustice held it was not Twisden argued that the writ is not abated but only abatable by plea and so this matter is not to be offered to stay the Iudgement 5 H. 7. f. 47. and he hath pleaded nothing in abatement but to the Action only and he said that it now being after a verdict it is helped by the Statute Hales on the other side said that it doth here appear that the Plaintif hath no cause of Action for he was in possession when he brought the Ejectment Roll answered If one declare having no cause of Action Declaration Departure if there be cause afterward it is well enough But here is a departure and the 1. Ejectment is not revived for it is purged by the re entry The rule was nil capiat per billam nisi The Custodes Libertatis c. against Hall Pasch 1651. Banc. sup HAll was endicted for forestalling of Butter Error to reverse a judgment upon an Endictment for forestalling and pleaded and had judgement given against him whereupon he brought his writ of Error and took these exceptions 1. That it doth not appear that the Endictment was at the Quarter Sessions as it ought to be by the Statute of 5 Ed. 6. for it is only said to be ad generalem Sessionem Roll chief Iustice answered if it be ad generalem Sessionem it may be intended the Quarter Sessions Intendment 2ly It was objected that there is no Capiatur awarded in the judgement as there ought to be The Court answered they would advise VVillis against Bond. Pasch 1651. Banc. sup Mich. 1650. rot 86. BOnd an Administrator brought an Action of Debt in Bristow against Willis upon an indebitatus assumpsit Error to reverse a judgement in debt and had a judgement The Defendant brought a writ of Error and took these Exceptions 1. That the Plaintif declares for a thing the conusance whereof lyes out of the jurisdiction of the Court Iurisdiction for it is for wages to be paid upon the performance of a Voyage to be made in locis transmarinis Roll chief lustice said this was a good Exception for they cannot enquire at Bristow whether the party hath performed his Voyage or not The 2d Exception was that the Plaintif declares that the Defendant was indebted to him in such a sum of money to render him an accompt The Court answered this is not good Accompt Debt for in such case an Action of accompt lies and not an indebitatus assumpsit And for these causes the Iudgement was reversed nisi and pronounced by Ierman Iustice at the prayer of the Plaintifs Counsel in English being the first that was pronounced so in this Court according to the late Act for proceedings in Law to be in English Quod nota Gowr against Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif Arrest of Iudgement in a Trover and Conversion Demand Trover in a Trover and Conversion brought by Baron and Feme for goods of the Feme dum ipsa sola suit The Exception was that it is not expressed that the goods were demanded by the Feme Roll chief Iustice said the Demand of the Feme is good to found the Action and it was then also said that a Trover and Conversion lies for goods found and converted although they come afterwards to the hands of the party that lost them The Rule was judicium nisi Pasch 1651. Banc. sup MEmorandum The first rule of this Court made in English was between White and Keblewhite Pasch 1651. Pease against Shrimpton Pasc 1651. Banc. sup Hill 24 Car. rot 191. THe Court was informed by Councel that the Habeas Corpus and Bail-piece were lost and therefore it was prayed that there might be a new Habeas Corpus and that the old Bail put in may be allowed by the rule of Court Roll chief Iustice answered make a new Habeas Corpus Habeas Corpus Bail and a new Bail-piece but first let Tutt the Attorney that was Clark of the Bails attend here to be examined whether the Habeas Corpus Bail-piece be lost as is suggested Ritch against Sanders Pasch 1651. Banc. sup Hill 1649. rot 758. RItch brought an Action of Trespass against Sanders for taking away his Corn set forth for tithes Special verdict in Trespass for tithes upon the words of a Will upon issue joyned a special Verdict was found whereupon the case fell out to be upon the construction of the
assigned in the Declaration was not well assigned for it recited another promise than upon which the Plaintif had declared for he declares of a promise made to give 300 l. in mariage to the Plaintif with his Sister E. and he assigns the breach in not paying the 300 l. unto the Plaintif so that the breach doth not answer the promise for if the money be paid to the wife which for ought appears may be the promise is not broken though she be maryed But Hale 〈◊〉 other side said that it is all one as it is alleged and that it is equâ—â—â—â— and reciprocal and here is a refusal to pay the money assigned for a breach and this is a good breach Roll chief Iustice I suppose it is all one as if he had expressed the very words of the promise for the Husband is to give the acquittance for the money Acquittance and the moneys are to be paid unto the Husband and the Verdict finds that they are not paid And if moneys be due to a Feme upon a Contract dum sola suit and after and before the payment thereof she marry the moneys are to be paid to the Husband and not the wife Payment and the moneys here are intended to be paid for a mariage portion which doth properly belong to the husband and they were not to be paid unto her before the mariage and it is all one in this Case as if the Plaintif had said that the Defendant had not paid the moneys to the Husband with his Wife in mariage Curia ad idem The Rule thereupon was that the Plaintif should take his judgement nisi Hicks and Joyce Mich. 1653. Banc. sup AN Action of the Case was brought for these words Arrest of judgement in an Action for words She meaning the Defendant is a whore and I will prove it and her plying place is in Cheapside and she gets 40 s. a night by playing the whore It was moved in Arrest of Iudgement that the words are not actionable because they are but words of choler and very general words and may receive divers constructions and at the first moving the judgement was stayed but the matter being moved again at another day Roll chief Iustice said that these words import more than the bare calling of a woman whore by reason of other particular circumstances set forth to aggravate the matter and therefore let the Plaintif take her Iudgement Townesend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. AN Action upon the Case was brought by a Churchwarden of a Parish Arrest of judgement in an action for words for these words spoken of him Thou dost make Lowns i. e. taxes or assessments thy self and makest 5 quarters in the year and dost cheat and cozen the Parish It was moved in Arrest of Iudgement that the words are not actionable because they are spoken of a Churchwarden which the Common Law takes not notice of And 2ly In that it doth not appear they were spoken of him in relation to his being a Churchwarden But it was answered That a Churchwarden is an Officer of Trust and taken notice of by the Common Law and so was it adiudged in Stroade and Homes his Case in this Court and the words must be intended to be spoken of him in the relation to his Office for that is implyed by his making of Lowns and his couzening the Parish The rule was for the Plaintif to have his judgement Mich. 1653. Banc. sup AN Endictment of one endicted for refusing to serve in the Office of a Headborough was quashed Endictment quashed Addition because it did not shew that he was chosen to the 〈◊〉 and because the party endicted wanted an addition Mich. 1653. Banc. sup THe Court was moved to discharge one Cullins that was arrested as he was attending the Court to give testimony as a Witness in a Cause To discharge one arrested attending th' Court as a Witness Supersedeas Attachment and for an attachment against the parties that did arrest him German Iustice absente Roll chief Iustice Take a Supersedeas and let the parties shew cause why an Attachment shall not be granted against them that arrested him Hanslop and Johnson Mich. 1953. Banc. sup THe Court was moved to change the venue in an Ejectione firmae laid in London because the Lands in Question did concern the Poor of London To change the Veâ—ue in an Ejectione firmae and therefore it was supposed there could not be an indifferent Tryal in London for by consequence in that it concerns the Poor it concerns the whole City But Roll chief Iustice answered the Action is local Action local Venue and it cannot be removed except you can draw it from thence by your Plea Boyle and Scarborough Mich. 1653. Banc. sup Hill 1652. rot 226. AN Action of Debt was brought by Boyle against Scarborough Error in reverse a judgement in Debt upon a Promise wherein the Plaintiff did declare that the Defendant in consideration that the Plaintiff would forbear to sue forth a ne exeat regnum against the Defendants Son who did owe unto the Plaintiff five hundred pound did assume and promise unto the Plaintiff a certain sum of mony expressed in the Declaration upon non assumpsit pleaded and a verdict and a judgement given for the Plaintiff the Defendant brought a Writ of Error and it was assigned for Error That there appears no consideration to ground the promise upon so no ground of Action for he doth not shew that he had done any thing in prosecuting the Writ of ne exeat regnum and Rolyer and Langdales Case 1650. in this Court was cited and Hob. 216. Bedwell and Cottons case and there is no such Writ in the Register as a ne exeat regnum and therefore there could be no forbearance to sue out such a Writ but there is a Writ to give security not to go out of the Realm to the publique prejudice of the King and his people and here is no such matter expressed but only that his Son owed him 500 l. Nat. Brev. 85. was agreed and it was farther objected by Wild who argued against the Iudgement that though the consideration should be good yet the replication is not good and sufficient to tye the second Writ to the first for it is not said that the second Writ is pro una eadem causa and so it is incertain Br. Trespass 85. 9 H. 6 and there may be several promises made in one day and if the replication is good yet the rejoynder is not good 19 H. 8.43 for he only admits that he being a Knight is the same person which was sued by the name of Esquire Hob. 171. Stukelyes Case And here is a judgement by a Nihil dicit and no warrant of Attorny for it is Latin and so it is nul it being since the late Act made for the proceedings in Law to be in English Latch
Record let it be tead upon the reading it he said that he relies not on the conclusion and so the Estople is relyed upon Sergeant Twisden In our Sur-rebutter we rely upon the Estople although we do it not in our rejoynder and so it is good Sergeant Glyn But you do not conclude upon the Record to wit whether you shall be received against the Record as you ought to do 22 H. 6. f. 26. Roll chief Iustice It is in effect said so though it be not in expresse words Finch Henage on the other side argued in affirmance of the judgement and said the question is whether his comming in by the name of Esquire to reverse the Outlawry shall not be an Estople to him to say afterwards that he was a Knight and I conceive it is Estople because he that comes in gratis to reverse an Outlawry shall not plead Misnosmer Misnosmer 6 E. 4. f. 9. he who comes in gratis is not prejudiced if he be not allowed this plea but it is otherwise if he come in upon process to reverse it 2ly It is lesse mischievous to deny the plea of Misnosmer than to allow it where it is not allowable the pleading of the Misnosmer if it be not true may invegle the Court 10 E. 4.12 12 E. 4. f. 6.19 H. 6. f. 8. There are 4 kinds of Misnosmer 4 Misnosmer to wit misnosmer of the Christian name 2ly Of the Sirname 3ly Of addition of Profession 4ly Of addition of place and in none of them shall misnosmer be pleaded where the party comes in gratis Br. Misnosmer 48. 3 E. 4.5 27 H. 8. f. 1.15 H. 6. Statham pl. Error Dyer 192.21 E. 4. f. 8. Fitzh tit Misnosmer 8.39 H. 6.1 E. 4. and as the case here is he is estopped to plead misnosmer by reversing of the Outlawry which is a matter of Record Estople and by it he hath confirmed his name to be so 19 H. 6. f. 1.7 Ed. 4. f. 1. Although he might plead Misnosmer if he came in by a Cepi yet there he may also plead another way specially if he will and it will be good also 19 H. 6. f. 1. Nor hath he here relyed upon his Plea of Misnosmer but upon the want of Proclamation and he reversed the Outlawry by the name of Esquire and yet now he will say that he was a Knight which is unreasonable 34 H. 6. Fitzh Protest 7. and this is an allegation contra factum suum proprium Here is a second original Original and that is a good Original within the Statute and it appears that this second Original is against the same party and so he acknowledgeth by the Record by which the Court may be ascertained that he was the same person and his Addition mis-named shall do no hurt And the second Original is good as the Court hath agreed upon opening of the Case Roll chief Iustice he reverseth the Outlawry as an Esquire and afterwards sayes he is a Knight He may come in without Proces to reverse the Outlawry Outlawry where his person or estate is endangered by it 39 E. 3. in Debt 38 E. 3. but he cannot plead Misnosmer yet he may protest that he is a Knight and save himself in another sute which may be brought against him If he have pleaded right you agree that he is not estopped here and it appears that he is the same person and comes in gratis by this name Original yet it is no estople And the second Original is good for it appears that he is the same person and that by the Statute notwithstanding the variance and he may come in gratis without proces and take advantage of the error But argue again to the point whether he may bring a second Original by the Statute At another day it was argued again but I could not hear but 33 H. 6. f. 19. 50. was cited that there ought to be a mutual Estople Mutual Estople viz. on the part of the Plaintif and of the part of the Defendant Roll chief Iustice It appears to be one and the same party and we must maintain Actions against the Statute of Limitations because by that Statute the benefit of the Law is taken away in part Iudgement affirmed Therefore let the Iudgement be affirmed Hill 1654 Banc. sup MEmorandum the two Sherifs of London appeared in Court To shew cause why execution not done Retorn of the Sheriff in their proper persons upon a rule of Court to shew cause why they did not grant out execution upon a judgement given in their Court or else to make a sufficient retorn of a Certiorari directed to them because they had made three insufficient retorns Upon this their retorn now made was read the effect whereof was that there is no such judgement as the Writ mentioneth to make out execution upon View of the Record Roll chief Iustice This is a good retorn as it now is and if the tetorn be false you may take your remedy against them for making a false retorn Upon this the Councel prayed that the party might have a Copy of the Iudgement out of the Sherifs Office Roll chief Iustice You may have a sight of the Record and if they will not suffer you to have it you may have your remedy against them The rule was that the party should have a Copy of the Record Pasch 1655. Banc. sup VPon a motion for a new Tryal grounded upon an Affidavit For a new Tryal Tryal of an Issue Order of Chancery Venire de novo Roll chief Iustice said That if there be a Tryal and a verdict given upon it The same issue cannot be tryed again by the same Iury although the Chancery do order such a Tryal but if there be a mistryal the party must move the Court where the Action was commenced for a Venire de novo to summon a new Iury. Nota. The Protector and Bruster Pasc 1655. Banc. sup CArew upon a rule to shew cause why an attachment should not issue forth against Commissioners of Sewers in Suffolk for setting a Fine upon one for not obeying their orders Cause why no Attachment after a Certiorari was delivered unto them to remove the orders made against the party in contempt of this Court shewed for cause that the Fine set was for disobeying a new Order of theirs made against the party after the Certiorari was retorned Certiorari and not for disobeying the Orders removed by the Certiorari and so it was no contempt to this Court. Roll chief Iustice The Certiorari doth not remove the Commission of Sewers and therefore they may proceed upon the Commission notwithstanding the Certiorari Therefore let no Attachment issue against them Pasch 1655. Banc. sup THe Court was moved to quash a retorn of rescous Return of a Writ of restitution the rescouser being in Court Vpon this exception viz. that the Endictment sets forth
abated To the 3d. exception That the Demand is more large than the Writ because a Parish may be larger than a vill and the Demand is the Parish of Imber I answer That the Vill and Parish shall be intended to be of the same extent if the contrary do not appear Cooks lit f. 125. 2ly Although the Parish may be larger than the Vill yet it may lye in the Vill and the contrary doth not here appear and the Case is so that it is impossible that the Parish should extend into another Vill 1. The office of the Writ is to restrain the Demand and the Writ ascertains the Demand 19 E. 3. Fitz. Dower 95. 9 E. 4. f. 16. by Chock 2ly There is a restriction within the body of the Demand for the Demand refers to the Writ and is bounded by it 42 Eliz. Wook and Godins Case a small implication will make a Vill and Parish to be all one Implication and so it is here 42 43 Eliz. Com. Banc. Hob. 12. Case Brook and Spencer Trin. 16 Iac. in this Court rot 504. Marks and Marks And as to the Exception taken to the execution Execution that dammages are given for more than is demanded 1. Here is no confession as it is supposed on the other side that the Hundred in demand doth lye in another Vill. 2ly It is impossible for dammages to be given for more of the Hundred than lyes within the Vills mentioned in the Writ and so are there no dammages given for that part of the Hundred which lyes in Sutton parva as is objected on the other side for no more shall be recovered than is contained in the Writ 9 E. 4. ◠16 17. The Question there was whether it were a Plea to the Writ 17 E. 3. f. 44. The Court desired to hear another Argument Castle against Dinely Pasc 24 Car. Banc. Reg. Trin. 23 Car. rot 1078. CAstle brings a Writ of Error to reverse a Iudgement given against him in the Court at Owse-bridge in York Error to reverse a Iudgment in an action upon the Case in an Action upon the Case upon an Assumpsit The Error assigned was that the day of the Month in which the promise was made is in Figures To this the Councel on the other side said that heretofore it had béen held to be Error Error but now since the Statute of Ieofailes after a verdict is no Error But I. Turner of Councel with the Plaintiff in the Writ of Error said That it is a material exception now for the Assumpsit is the ground of the Action and therefore the day must néeds be material Another exception was that the Venire was Venire facias duodecem c. de Riliva tua and the Venu was in the City of York But to this exception it was answered that the Record is de Civitate Eborum in Baliva tua and so it is well enough and of this opinion was the Court. But the Court held the first Exception to be good Whereupon the Councel for the Defendant in the Writ of Error prayed the Iudgement might be reversed for his Clyents dispatch and so it was The King against Andrews Pasc 24 Car. Banc. Reg. ANdrews was endicted for Murther and out-lawed upon the Endictment Arraignment upon an Outlawry for Murder and taken upon the Out lawry and brought to the Bar and demanded what he could say why Iudgement should not be given against him The Prisoner said he had brought his Writ of Error to reverse the Outlawry and prayed it might be allowed which was granted and the Writ read by Broughton the Secondary on the Crown-side The Prisoner desired he might have Walker Hales and Pepes assigned him for his Councel which the Court granted The Councel prayed they might have a Copy of the Record Roll Iustice said that the Prisoner himself ought to shew matter in Law for Error which the Councel doubted Error But the Court over-ruled it yet agreed that the Record should be read unto them which was done Vpon the reading Walker took these exceptions 1. The Process is not well awarded for the Capias is not praedict Andrews and so it appears not who was out-lawed whether the Prisoner or another of the same name 2ly It is not said that the Process is awarded by the Court nor at what Sessions it was awarded Roll Iustice It is necessary for it is recorded there 3ly It appears not what party is dead whether he that was struck or another 4ly It doth not appear in what part of the body the Wound was given nor with what weapon The Court said that they will hear the Kings Councel before they would conclude any thing The Councel moved that the Prisoner might be bayled because it was fourteen years ago since he was endicted The Court answered till you are assigned of Councel upon Record we cannot bayl him at your prayer Bayl. Then the Councel desired a Copy of the Record ad quod non suit responsum but the Court said to the Councel take more time to consider of other Exceptions for if these shall be over-ruled your Clyent is gone viz. must be hanged At another day he was bayled by four persons and bound to prosecute his Writ of Error with effect Pasc 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation for 3000 l. Arrest of Iudgement in Debt upon an obligation the Defendant pleads that he had paid the mony on such a day whereas the truth of the Case was that there was two daies of payment limited in the Obligation and the Defendant had paid part of the monies upon one of the daies of payment and the rest upon the other day and not all at one day The Plaintiff replies that the Defendant did not pay the mony upon the day alleged by the Defendant in his Plea and upon this an Issue is joyned and a verdict found for the Plaintiff Verdict the Defendant moves in arrest of Iudgement and shews for cause That the Verdict is imperfect because it doth not find that the Defendant had two daies of payment but concludes that he did not pay the mony upon one of the daies Roll Iustice If you have two daies of payment to plead and you rely upon one day in your pleading Champerty and issue is joyned upon that and it be found against you you must be barred by it Hales urged That here was a champertous agreement for there was no consideration for the assignment of this Obligation and Indenture to the Plaintiff upon which the Action is brought by him The Iudgement was stayed till the other part should move More against Stone Pasc 24 Car. Banc. Reg. AN Action of Trespass of Assault and Battery was brought by the Plaintiff for assaulting and beating and taking his Servant for two Months Arrest of Iudgement in Trespass by Assault and Battery and taking away his Servant Retainer per quod