it is a litigious title the buying where the Law doth not allow Battery To lay ones hands lightly or gently upon another though he have no occasion so to do is no Battery to ground an Action upon Trin. 24. Car B. r. For the Law will not prosume the party is damnified by it Bill There is difference betwixt an Inland Bill of Exchange and an Outland Bill of Exchange which is made to return moneys beyond the Seas for an Inland Bill is but in nature of a Letter but an Outland Bill is of another nature and more regarded in the eye of the Law 3. July 1650. B. S. Because it is more for the advance of trade Book When Books are delivered to the Judges in causes which are to be argued the Atturnyes that deliver the Books ought to write the number Roll of the Cases to be argued upon the Book otherwise they will not receive them Mich. 22. Car. B. r. That they may know in what yeer and term the causes were entred that they may have recourse to the Records upon any occasion The Books which are to delivered to be the Judges of causes to be argued are to be made at the equal charge of the Plaintiff and the Defendant Pasc 23. Car. B. r. For the Law being doubtful in such Causes which are to be argued whether it be on the Plaintiffs side or on the Defendants the arguing of the Case doth equally concern them and therefore it is reason they should be at an equal charge in bringing the cause to be argued and determined When Books are to be delivered to the Judges in causes which are to be argued the Plaintiff ought to give Books to the Seignior Judges and the Defendant ought to give Books to the puisne Judges Hill 1649. B. S. Courts and their Jurisdiction THe Court of York hath not power to award a Capias in an Action upon the Case by the Statute of 14. H. 7. Hill 21. Car. B. r. Inferior Courts ought not in pleading to shew a thing by implication but they must set it forth expresly and also Surplusage in an inferior Court will make error for they must keep their forms precisely Hill 21. B. r. For if they should be suffered to break their forms it would introduce all barbarism and confusion If a condition of an Obligation for the payment of money do express no place where the mony is to be paid if the Obligee bring an Action of Debt upon this Obligation for non-payment of the money according to the Condition of this Obligation he must make it appear that the money was to be paid within the jurisdiction of the Court where he brings his Action or else the Action is not well laid Hill 21. Car. B. r. The jurisdiction of an inferior Court must be set forth and by what authority it is held whether by Prescription or Letters Patents Hill 21. Car. B. r. For every inferior Court must be held one of those wayes The Court of Admiralty cannot hold Plea of a matter arising from a contract made upon the land though the contract was made concerning things belonging to the Ship Hill 21. Car. B. r. In the yeer of 4 H. 4. there was a petition preferred in the Parliament against the Court of Admiralty for holding of Pleas by the Spiritual Law which they ought not to do but by the Laws of Oleron and so it was held by the House of Commons in Parliament at that time Hill 21. Car. B. r. If goods delivered a Ship-board be embeziled all the Mariners ought to contribute to the satisfaction of the party that lost his goods every one of them particularly according to their proportion by the the Martime Law or custome and the cause is to be tryed in the Court of the Admiralty and in such cases no prohibition ought to be granted Hill 21. Car. B. r. The Court of Admiralty ought not to try whether a fact were done in a place which is comprehended within a League made with a Forraign Prince or whether the place be without or not nor ought to try whether the League were made at the time of the fact done or no. 21. Car. B. r. No Court can set a fine upon any person for such an offence committed by him for which they cannot grant him a pardon for his offence when he hath paid the fine that is so set upon him 21. Car. B. r. 4. H. 7. 5. 21. H. 7. 35. The Court ought Ex officio to take notice of matters contained in the Record of the matter depending before them but they are not tyed to search the Almanack to compute the times of doing of things 21. Car. B. r. An inferior Court ought to Return a Writ directed to them to stop their proceedings although they be not bound to allow the Writ directed to them by giving obedience unto it and in their Return of the Writ they are to shew why they do not allow it but do proceed notwithstanding the Writ directed unto them 22. Car. B. r. That they may not seem to contemn the Authority above them If a Court which hath no jurisdiction of the cause depending in that Court do proceed to Judgment in it the Judgement is good if the Defendant did not plead to the jurisdiction of the Court but admitted it to have jurisdiction of the cause by making his defence 22. Car. B. r. Which was once in his power to allow or disallow as he pleased but not having disallowed it when he might he shall be judged to have allowed the jurisdiction Although one plead in disallowance of the jurisdiction of a Court yet he may afterwards come in and allow the jurisdiction and plead there Mich. 22. Car. B. r. The Court of the Kings Bench is to regulate all the Courts of Law throughout England that they do not exceed their jurisdictions nor alter their forms 22. Car. B. r. In some cases the jurisdiction of the Courts of the Cinque Ports extendeth upon the high Sea Mich. 22. Car. B. r. This Court may commit an Atturney for doing of things against the express Rules of the Court and notice of it 22. Car. B. r. This Court may issue out a Writ to compell one that is elected to the Office of Constable and refuseth to serve to take his oath and to execute his Office Mich. 22. Car. B. r. The superior Courts at Westminster and the inferior Courts elsewhere do differ in their forms in proceeding in many things Mich. 22. Car. B. r. A Court that holts Plea by ventue of Letters Patents ought to proceed according to the course of the Common Law but Courts that are Courts by Custome are not bound to proceed according to the strict Rules of the Common Law but may proceed according to their custome Mich. 22. Car. B. r. So that it be not contrary to Law One may sue in the Kings Bench Court by Original as well as he may by Bill of Midlesex or Writ
remedy whereof he desires and obtains the Kings Writ 21. Car. B. r. And in his Declaration the Plaintiff doth more at large express the same matter unto the Court where he brings his Action A Plaint in an inferiour Court is in the nature of an original Writ Pasc 24. Car. B. r. For upon the entring of it the process of the Court doth issue forth to bring in the Defendant to appear and to plead to the Plaintiffs Action Priviledge One that is a Committee-man of a Committee of Parliament if he be not a Member of the House of Parliament is not thereby priviledged from serving upon the grand Enquests which are returned every Term in this Court to take presentments of misdemeanours done within the County of Middlesex Hill 21. Car. B. r. A Clark of this Court is not bound to lay any personal Action which he brings against another out of the County where this Court doth sit Mich. 22. Car. B. r. But by his priviledge he may lay it here notwithstanding the Cause of his Action did arise in another County and he is thus priviledged in regard of the constant attendance he is tied to give in this Court yet in reall Actions he is not thus priviledged For such Actions are local and must be tried in the County where the Cause of Action did arise A Peer of the Realm cannot claim his Priviledge of Peerage in an endictment preferred against him Mich. 22. Car. B. r. Because an endictment is preferred in the Name of the King against whom the plea of Priviledge is not to be allowed but is only to be allowed in civil Causes and not criminal One that hath a Sute depending in this Court is priviledged by the Court from areâ—…ing in coming hither from his house or lodging to follow his Cause and also in departing from the Court back again directly to his house or lodging and if he be arested in so doing the Court upon a motion made to inform them of it will set the party at liberty and punish him that arrested him if he did know he had a Sute depending here and came hither to attend it The wife of an Attorney of this Court if she be arrested ought not to claim the priviledge of this Court not to put in bail to the Action as her husband may if he be arrested but her husband must put in bail for her and for want thereof she is to be committed to prison Trin. 1650. Jun. 25. B. S. For her husband is priviledged only in regard of his personal attendance upon the Court and of that tye which the Court hath upon him in regard of his relation to the Court. Prohibition In a Prohibition prayed to be directed to the Court of Admiralty to stay their proceedings upon a suggestion that they did hold Plea there upon a promise which was made infra corpus comitatus and so not triable there but at the Common Law It was said by the Court that the surmise must be absolute that the promise was made infra corpus comitatus and not that if there was any promise made it was made infra corpus comitatus for this is incertain and upon an uncertain surmise no prohibition can be granted for no Issue can be taken upon it though it should be false Hill 21. Car. B. r. This Court may by the Common Law grant a Prohibition to the Court of Admiralty to stay their proceedings if they hold Plea of any matter which the jurisdiction of their Court doth not extend unto Mich. 22. Car. B. r. A Prohibition doth lie in all Causes wherein a Habeas Corpus doth lie Mich. 22. Car. B. r. For this Court hath power as well to see Justice done concerning a mans estate as to his person Although it be questionable Whether a Prohibition do lie in the Case wherein it is moved for Yet this Court will grant it so that the parties concerned may appear here and plead or demur as they shall be advised to the intent the matter may come in question here and be decided Whether a Prohibition do lie in the Case or not Mich. 22. Car. B. r. And if it shall appear to the Court that a Prohibition doth not lie the Court will then grant a consultation whereby the party that was stopped in his proceedings by the Prohibition may now proceed in that Court to which the Prohibition was directed Mich. 22 Car. B. r. A Prohibition may be granted to the Prerogative Court to hinder them from granting Letters of Administration against the Law Hill 22. Car. B. r. Where there is a Sute depending in the Ecclesiastical Court for a personal Estate and also for Lands a Prohibition may be granted to stop their proceedings there as to the Lands only and they may nevertheless proceed there as to the personal Estate Pasc 23. Car. B. r. For as to the one thy have Jurisdiction and as to the other they have none If the Common Law and the Spiritual Law do differ in the way of their proceedings in matter of substance and the Ecclesiastical Court will proceed according to the course of their Law this Court will grant a Prohibition to stop their proceedings Pasc 23. Car. B. r. For in things doubtfull the Common Law is to be preferred before the Spiritual Law as being the more general Law and more tending to the general good of the people and the publick peace of the Nation If the Court of the Lord Maior of London shall hold plea of a Cause after it is removed into this Court by a Writ of Certiorari This Court may grant a Prohibition to that Court to stop their proceedings there Trin 25. Car. B. r. For after it is removed they have no further Conusance of the Cause A Prohibition may be granted out of this Court to any other Court that doth proceed in any Cause which doth not lie within their Jurisdiction Trin. 23. Car. B. r. For that is to exceed their Authority which this Court will not suffer but is to keep all other inferior Courts within their own bounds A Prohibition may not be granted to an inferiour Court to stop their proceedings in a Cause which doth not lie within their jurisdiction to try after that the Defendant hath allowed the jurisdiction of the Court by pleading to the Action Trin 23. Car. B. r. For it is then too late to move for a Prohibition for he ought before he had pleaded to have demurred to the Jurisdiction of the Court and then if they had proceeded he might have had a Prohibition or without a Demurrer I conceive he may move for a Prohibition and have it The Defendant in the Court of Admiralty may have a Prohibition to that Court after he hath pleaded there although he cannot have it to an inferiour Court after he hath pleaded for an inferiour Court doth not draw the matter in question ad alind examen but do proceed therein according to the Common Law But
the Court of Admiralty do draw the matter ad aliud examen that is to try it by the Civil Law Trin. 23. Car. B. r. And therefore this Court will use their Authority at any time to stay their proceedings in the Admiralty although the Defendant have by his incautelous pleading allowed their Jurisdiction It is not necessary for him that Libels in the Court of Admiralty to shew in his Libel that the Common Law bath no Jurisdiction of the matter for which he Libels but he that prayes a Prohibition to the Admiralty in this Court must suggest something wherein in respect of the Cause depending there and for which he prayes the Prohibition that Court hath no Jurisdiction of the Cause Hill 23. Car. B. r. For the Admiralty cannot determine whether the Common Law have Jurisdiction or not and therefore it would be a vain allegation but this Court can judge of the Jurisdiction of the Courts of Common Law and can determine whether other Courts do intrence upon their Jurisdictions or not If the Court of Admirality do hold plea of any matter which is not maritime although the thing were done upon the Sea yet this Court will grant a Prohibition to stop their proceedings Hill 23. Car. B. r. For the Court of Admiralty hath only Jurisdiction in maritime Causes viz. such as only concern sea-affairs and not of all matters done at Sea as Contracts c. the Tryal whereof belongs to the Common Law This Court will grant a Prohibition to the Admiralty if there be cause for it although that a consultation have been granted in the Court of Common Pleas in the same cause Hill 23. Car. B. r. This Court ought not to deny the party a Prohibition that doth pray it if there appear cause for a Prohibition for it is not a thing arbitrary or ex gratia curiae to grant it or not to grant it Hill 23. Car. B. r. For to deny it were to deny Justice to the party in denying him the benefit of the Common Law which is every free-born English mans birth-right A Prohibition may be granted to the Spiritual Court after a sentence given in the Cause in that Court for which the Prohibition is prayed if there be cause but the Court will not do it untill they have heard Councell speak on both parts to inform their consciences although before a sentence they use to grant it upon a bare suggestion of the party Tuesday 2. July 1650. B. S. and Pasc 1652. B. S. For a sentence in an Ecclesiastical Court is in the nature of a Judgement given at the Common Law and presumed to be given upon mature deliberation and therefore this Court will not but by good advice make a sentence there given void or hinder the execution of it A Prohibition doth not lie to the Court of Admiralty in the cases of Felony yet if there be cause this Court will grant a Certiorari to remove the Cause hither By Rolle Chief Justice in Dothicks Case 29 Oct. 1650. B. S. Q. Tamen quia curia advisare vult Pleas and Pleadings If an Action be grounded upon a Statute there the Statute must be precisely set forth in pleading but if a Statute recited be but an inducement to the action there it is not necessary to recite the Statute precisely Hill 21. Car. B. r. For if the Statute be not precisely recited the Defendant cannot tell how to plead to the Statute As a plea in bar may go per partes so may in like manner a plea pleaded in abatement of a Writ Hil. 21. Car. B. r. A Plea is then said to go per partes as I conceive when one part of it goes to one part of the Declaration and another part of the Plea answers another part of the Declaration One that appears in Court upon a Habeas Corpus ought to plead the same Term wherein he comes in Hill 21. Car. B. r. If the Defendant do not plead according to the Rules of the Court so that the Plaintiff may enter Judgement upon a Nihil dicit yet if after the Rules are out the Defendant do put in his Plea into the Office before the Plaintiff hath entred his Judgement this Plea is to be accepted and the Plaintiff ought not then to enter his Judgement and therefore it behoves Attorneys to be vigilant in their practice 21. Car. B. r. and 23. Car. Hill For a Judgement upon a Nihil dicit is for want of a Plea but in this Case here is a Plea and if such a Judgement should be entred it would be in facto an irregular Judgement If the Defendant in an Ejectione firmae do not plead in time according to the Rules of the Court the Plaintiff may after the Rules for pleading be out move the Court to set a short day for him to plead which will be granted if the Land lie neer at hand and if the Defendant do not plead at the time set by the Court the Plaintiff may enter Judgement upon a Nihil dicit 21. Car. B. r. But now such motions are not usual for Judgement may be entred of course A forraign Plea is to be put in upon Oath of the Defendant that is he must swear his Plea is true or else such a Plea is not to be received Mich. 22. Car. B. r. Mich. 24. Car. B. r. A forraign Plea is when the Defendant doth plead such matter that if it be true the cause cannot be tried in this Court and in regard that thereby the Defendant doth endeavour to hinder the proceedings of this Court and to delay the Plaintiff therefore the Court will make him swear his Plea to be true that the Court may not be deluded nor the Plaintiff trifled with by a false Plea and if he will not swear his Plea to be true the Plaintiff may enter Judgement for want of a Plea Trin. 1650. B. S. If an Action of Debt be brought upon an erroneous Judgement the Defendant may plead Null tyel Record that is that there is no such Record as he frames his Action upon Mich. 22. Car. B. r. For that which is erroneous is accompted in Law as null and void If the Defendant do plead a dilatory Plea the Court at the Plaintiffs motion will order him to plead such a Plea as he will stand to Mich. 22. Car. B. r. For the Law favours not delayes whatsoever is vainly babled by the ignorant to the contrary And if he be ordered to put in a Plea to which he will stand and he do it accordingly if such his Plea be not good the Court will not permit him to amend it but the Plaintiff shall take advantage of it by demurring upon it or otherwise as he shall be advised In any Action wherein the Plaintiff in case he recover shall only recover Dammages the Defendant may plead in Barre to this Action an arbitrement with satisfaction thereupon made unto the Plaintiff Mich. 22. Car. B. r. For if the Plaintiff have
which they proceed upon in the Common Pleas. Mich 1649. B. S. Mareschall THe Mareschal of the Mareschalsea of this Court is intended to be alwayes in Court while the Court is sitting 21. Car. B. r. For it is his Office to be alwayes attending upon the Court to execute his Office in relation to the Court upon all occasions that may fall out Monstrance None shall be compelled to shew a thing in pleading which by common intendment they cannot have knowledge of 22. Car. B. r. 38. H. 6. f. 3. Motion to the Court. Monday is a special day for motions in this Court by the ancient course Mich. 22. Car. B. r. Yet motions are made upon any day as the businesses of the Court of the day will permit One ought not to move the Court for a thing against which they have delivered their opinion Trin. 22. Car. B. r. But ought to rest satisfied with the Judgement of the Court. If moneys be upon a motion ordered to be brought into the Court and are accordingly brought in they ought not to be taken out of the Court but upon a motion and rule of the Court made therein Hill 22. Car. B. r. If any thing be moved to the Court upon a Record if the Record upon which the motion is made be not in Court when the motion is made the Court will make no Rule upon such a motion Hill 22. Car. B. r. For the Court will be satisfied by the Record whether the matter of the Record upon which the motion is grounded be so as is suggested by the Councell and will not rest upon suggestions made at the bar If there be divers Rules of the Court made in a Cause and the party intends to move upon these Rules he must produce the Rule that was last made in the Cause and move upon that Pasc 23. Car. B. r. Yet it is necessary also to have all the Rules made in the Cause to satisfie the Court how the Cause stands in Court and how it hath been proceeded in from time to time and how the Rules depend upon one another One party ought not to surprise another by a motion in Court but he ought to move in such convenient time that the other party against whom the motion is made may have time to be heard and to make his Defence Pasc 23. Car. B. r. It is against the Rule of the practice of this Court to move matters in Law upon the last day of any Term except it be where the Case is peremptory or of necessity to be moved then Pasc 23. Car. B. r. Because the other Party cannot have time to make his Defence and that day is also a day appointed for motions One ought not to move the Court for a Rule for a thing to be done which may by the common Rules of practice of this Court be done without moving the Court for it much lesse ought the Court to be moved for the doing of that which is against the common Rules of practice of the Court. 24. Car. B. r. For the Court is not to be troubled with nor the Clyent put to the charge of needless motions nor of motions not to be granted and the former sort of such kinde of motions do savour of ignorance and the latter of too much presumption When a thing questionable between the parties is to be moved to the Court for the setling thereof he that intends to move it must give the adverse party timely notice of the time as near as he can when he will move it Mich. 1650. B. S. And upon what he intends to move that he may be prepared to answer the motion at the time when he moves for the quicker dispatch of businesses If a Rule of Court was grounded upon an Affidavit he that will move the Court to make the Rule void must when he moves produce the Affidavit in Court Hill 1649. 22. Feb. B. S. That the Court may be informed upon what grounds the Rule was made and whether there be cause shewed upon the motion sufficient to induce them to vacate the Rule It is against the course of practice of the Court for any person to make a motion in his own Cause 24. Maii. Pasc 1650. B. S. So said in one Thurston and Masons Case viz. for a Counseller to do it When the Court doth grant a thing to one upon a motion which was in the power of the Court either to grant it or not to grant it the party that hath his motion so granted unto him is by the rules of the Court to pay 12d to the box for it 1650. B. S. Which money is given to the prisoners of the Vpper-bench prison as it is said It is not usual to move for a Trial at the Bar upon the last day of the Term. 2. Julii 1650. B. S. Nor for the Secondary to make a Report nor for a Prehibition nor to vacate a Judgement or such like cases except both parties be in Court and are contented with the motion and prepared to speak in it The three last dayes of the Term if it be not an Issue Term is appointed to hear motions only and not other businesses except they be peremptory or upon other special occasions But if it be not an Issue Term then the two last dayes are only for the hearing of motions 30. Jan. 1650. B. S. The Issue Terms are Hillary Term and Trinity Term and they are so called because though there be Issues joyned in every Term yet not so many by much as in these Termes in regard of the Causes which are to be tried all England over at the Assizes which do follow in the next Vacations after the said Terms viz. the Lent-Assizes and the Summer-Assizes as they are commonly called By Glyn Chief-Justice it is not the custome of the practice of the Common Pleas for a Serjeant at Law to move for a Clark of the Court and afterwards for his Clyent Mich. 1655. B. S. For it seems it is not intended there that he doth move without a Fee for a Clark of the Court and therefore if he should be so heard he would have a double motion at one time which no Court doth allow Manslaughter A grand Jury may finde a Bill of Manslaughter to be Billa vera per infortunium Pasc 23. Car B. r. Mortgage If Lands be Mortgaged to one the interest in Law in these Lands is in the Mortgagee before the forfeiture of them Mich. 23. Car. B. r. For he hath purchased the Lands upon a valuable consideration as the Law will intend and though the Mortgagee may redeem them yet it is not known whether he will do it or no For it is in his power to do it or not to do it and if he do it not then the Estate is absolute in the Mortagee without any other act to be done to passe the Estate Messuage One Messuage cannot be apurtenant unto another Messuage Pasc 24. Car. B. r. For
for want of a Plea Hill 1650. B. S. 5. Feb. But if it be a special Plea there must he a Counsellors hand set unto it If one be sued by original Writ he must Plead the same Term in which the original is returned Hill 1650. B. S. 6. Feb. If one be compelled to alleadge double matter in his Plea yet if he do insist but upon one of them the Plea is not double Trin. 1651. B. S. For upon that matter onely upon which it is insisted upon shall issue be joyned If the Plaintiffs Atturney will consent unto it the Defendant may waive his Plea without moving the Court. By Rolle Chief Justice Trin. 1651. B. r. But if he will not consent it cannot be done without moving the Court. A special Plea is a Plea although it have not a Counsellors hand set to it and therefore Judgement cannot be entred for want of a Plea although a Councellors hand be not to it without acquainting the Secondary of the Office and obtaining his leave to do it for it may be there was no cause for a special Plea and the Plaintiff must not be his own Judge Mich. 1651. B. S. Per Rolle Chief Justice The Prayer of the priviledge of the Court is not properly a Plea for it was anciently demanded by Writ although it be now usually allowed upon the Prayer of the party who claimes it By Latch Apprentice in the Law If a Declaration be delivered to the Defendants Atturney or put into the Office after the Essoigne day of the Term the Defendant cannot be compelled to Plead that Term but he may Emparle till the next Term. 1652. B. S. For the Term was begun when the Declaration was delivered and so it cannot be accounted a Declaration of the proceeding Term. Pardon He that will take the benefit of a general Pardon ought to plead the Statute by which the general Pardon was granted 21. Car. B. r. 8. Ed. 4. 7. 4. H. 7. 8. That the Court may judge whether his offence be Pardoned or not One that is found guilty of man-slaughter must sue out his Pardon or else his burning in the hand cannot be dispensed withall for man-slaughter is Felony 23. Car. B. r. Penalty This Court will not give the Penalty of an Obligation to the Obligee which was onely made to perform the Covenants of an Indenture 21. Car. B. r. Because the party may recover upon the Covenants of the Indenture whatsoever he can be damnisied by the breach of them and the Bond was given for no other intent but to tye the Obligee to perform the Covenants or to satisfie for the breach of them and not that the Obligee should take advantage of the penalty of the bond which it may be is a great sum for the breach of a Covenant whereby the Obligee is very little damnified Perjury A false Oath taken before a person that hath not authority by Law to give the party his Oath in that cause wherein he is deposed is not Perjury 21. Car. B. r. For the Oath is Coram non judice An Endictment for Perjury may be preferred against one for taking a false Oath rashly and for want of consideration although the party that took the Oath did not do it maliciously and he may be convicted thereupon but the fine ought to be more moderate where the Perjury is committed out of rashness onely then where it is committed maliciously Trin. 24. Car. B. r. For though the Law doth not tollerate offences though they be committed out of infirmity yet they have regard to the weaknest of man and will not therfore punish them so severely as offences committed upon premeditated malice to the party against whom they are committed Process and Proceedings in Law All legal Proceedings ought to take commencement by original Writ or by Endictment or by information 21. Car. B. r. Or by Latitat which is the original Process of this Court and is in the nature of an original although it doth suppose a former Writ in the case for which it is issued forth If a Cepi Corpus be returned in one Term the Defendant ought to Plead the next Term after the return so that the Plaintiff may go a tryal the same Term and so it is if the Defendant be brought into Court by a Habeas Corpus or an alias or pluries Habeas Corpus Mich. 22. Car. B. r. After the Plaintiff is non-suit he must begin his Action again and cannot proceed upon his old Declaration Mich. 22. Car. B. r. For by the non suit the cause as to that Action is determined and the parties have no day in Court After a Verdict there ought not to a repleader but the Plea is discontinued Mich. 22. Car. B. r. Where the Defendant brings a Writ of Error to reverse a Judgement given against him and hath a Supersedeas to stay Execution upon the Judgement directed to the Sheriff of that County where the Execution is to be done and yet he is taken by the Sheriff by vertue of an Execution taken out upon this Judgement upon moving of the Court they will grant him a Writ of Supersedeas to Supersede this Execution quia emanavit erronice Mich 22. Car. B. r. For such Execution ought not by Law to have issued out much less to have been executed A Latitat is called a Bill of Midlesex Mich. 22. Car. B. r. But not all Latitats but onely such as are directed to the Sheriffs of Midlesex as I conceive Where the Defendant did tender unto the Plaintiff the moneys for which the Action is afterwards brought against him before the Action was brought and the Plaintiff refuseth them and will notwithing sue the Defendant for them upon a motion and making this appear to the Court the Court will order the money to be brought into the Court and will stay the Plaintiffs Proceedings Trin. 23. Car. B. r. For the Court will not countenance any one to sue another who may have right done to him without suit for this were to encourage men to be vexatious The continuances of Processes in inferior Courts ought to set forth the manner of the continuances and not to express them generally Trin. 24. Car. B. r. The Proceedings in inferior Courts are not so regular and formal as the Proceedings are in the Courts at Westminster but are entred only in short notes Pasc 24. Car. B. r. Pasc 1648. B. S. If one be arrested by Process of this Court and be thereupon in Custody and the Plaintiff do not declare against him in three Terms after the Defendant is by the rules of the Court to go out upon common Bail Trin. 24. Car. B. r. For the Court will presume the cause of Action is not very great because it is so long before he declares and they will not compell him to put in special Bail but where it appears the cause requires it The continuances in the Process of this Court are not entred untill the Judgement given in the
cases doth use at the prayer of the party who is concerned to dispense with the not speaking to it at that time and doth give the party further time to speak in it without prejudice to him and this is called the putting off of a Peremptory Proclamation At the latter end of the Assizes there useth to be Proclamation made that no more records of nisi prius be put in to be tryed at that Assizes and that they shall not be received after and all persons that are to attend their tryals if the Records of nisi prius to be tryed be not then put in may depart and are bound to give no longer attendance at that Assizes Pasc 1652. B. S. Quashing of Endictments Orders c. THis Court hath authority to Quash Orders of Sessions Presentments Endictments c. made in inferior Courts or before Justices of the Peace or other Commissioners if there be cause that is if they be defective in matter or form Mich 22. Car. B. r. To Quash comes of the French word Quasser or rather Casser which signifies to break in peices to cancel destroy make null or voide But this Quashing is but by favour of the Court for the Court is not tyed Ex Officio to do it but may leave the party to plead unto them and to take advantage of the insufficiency of them by pleading to them as in many cases they use to do An Endictment may be Quashed for false Latine or for having in it insensible words or English words or for defect in the form of it Trin. 23. Car. B. r. But now by the late Act it may be in English The Court will not Quash an Endictment of forcible entry after a Verdict before hearing of both the parties concerned in the cause Mich. 23. Car. B. r. The Court will not Quash an information for a fault in the body of it but will leave the Defendant to demur unto it if he believe it to be insufficient but it is otherwise of an Endictment Pasc 1650. B. S. 24 Maii. Quaere rationem Quo Warranto A Quo Wvrranto was brought for vexation upon fourty eight points and the Court being moved in it did order that the prosecutor should wave that Quo Warranto and should bring a new one and therein insist onely upon three points but that he might proceed to a tryall upon it in such time as he might have done upon the old Hill 22. Car. B. r. Quaere Whether one that is under an Arrest may make an Obligation to the Plaintiff at whose sute he was arrested for his appearance to his Action Pasc 24. Car. B. r. Pasc 1648. B. S. In Leach and Davyes Case If a Lessee for years cut down Timber upon the Land let unto him and carry it away from off the ground Q. Whether the Lessor may bring an Action of Trover and Conversion for the Timber Mich. 24. Car. B. r. Whether a fine levyed of Land shall extend to a contingent use of that Land Mich. 24. Car. B. r. In Thomas and Kemishes Case If there be two Tenants in Common of Land and one of them dye Quaere How his wife shall be endowed of the Land which her husband beld in common whether by metes and bounds or not 16. Nov. 1650. B. S. Return of Writs c. THe Court was moved that a return made upon a Habeas Corpus might be amended before it was filed and it was granted Hill 21. Car. B. r. But after it is filed it cannot be amended for then it is a Record of the Court. If a special Scire Facias do issue forth a nihil cannot be returned upon this Scire Facias Hill 21. Car. B r. For a nihil is a general return which ought not to be in this case because the Writ is a special Writ If an inferior Court do make an ill return of a Habeas Corpus the Court will grant an alias Habeas Corpus and also set an amercement upon them for making an ill return of the former Habeas Corpus Hill 21. Car. B. r. Because thereby viz. by the ill return Justice is delayed and the party grieved is also put to more trouble and charge to obtain it If a Writ out of this Court be directed to an inferior Court which the inferior Court is not bound to allow but may proceed notwithstanding the Writ sent unto them yet they ought to make a Return upon the Writ and in the Return to shew the cause why they do not allow the Writ but do proceed in the Cause notwithstanding the Writ Hill 22. Car. B. r. For the Writs of this Court are to be obeyed if there be not very good reason shewed to the contrary why they ought not to be obeyed A prisoner brought to the Bar upon the Return of his Habeas Corpus may have a Copy of the Return if he pray it that he may take his exceptions to the Return Mich. 22. Car. B. r. But the Return must be first filed If the Under Sheriff of a County may be justly challenged as partial to the Plaintiff or the Defendant in respect of kindred or alliance or some other cause that may render him not to be indifferent between the parties and he be to execute a Venire Facias to summon to a Jury to try an issue joyned betwixt the Plaintiff and Defendant in such cases the Court will upon motion of the party that is likely to be prejudiced if a Jury should be returned by him order that the High Sheriff of the County shall himself Return the Jury Mich. 22. Car. B. r. If one be arrested by the Sheriffs Bailiff and a Bond be given unto the Sheriff that the party arrested shall appear at the Return of the Writ the Sheriff ought not to Return a Non est inventus but a Cepi Corpus and if he do Return a non est inventus the Plaintiff may bring an Action upon the Case against the Sheriff for making a false Return or else the Court may amerce him for it and if the Sheriff do Return a Cepi Corpus and yet the party Arrested doth not appear at the day the Court will encrease amercements upon the Sheriff untill he make the party to appear Hill 22. Car. B. r. For when the party is arrested he is in custody of the Sheriff and he ought to keep him at his peril and bring him in at the day and it is of favour to the party that he takes Bond of him for his appearance for he is not bound to do it and if he suffer by it he may take his remedy against the party upon the bond It is not requisite that the Sheriff in making a Return should insert his title or name of dignity or Christian or surname but onely by his name of office Hill 22. Car. B. r. Yet if he do insert those names which is usually done the Return is not thereby hurt or made defective If the Sheriff Return a Cepi Corpus and
Parliament or other payments Trin. 23. Car. B. r. Tithes The rector of a Church shall be accounted the proprietor of the Tithes of that Parish to which the Church doth belong if the contrary be not shewed Trin. 24. Car. B. r. Tithes of Land which do not lye in an Parish do properly belong to the King Mich. 24. Car. B. r. For that which no Subject can justly claim is the Kings Lands which lye in a Forest and are in the hands of the King are free from paying of Tithes although they do lye within some Parish but if they be disaforested and come into the hands of another they ought to pay Tithes for the not paying of Tithes for them whilst they were in the Kings hands is but an immunity for the time and not an absolute discharge Mich. 24. Car. B. r. Tithes are not due to be paid Jure Divino but per legem terrae so held by the Court agreeing with J. Seldons History of Tithes Mich. 1649 B. S. If Lands paid no Tithes before the Statute of Ed. 6. or but very inconsiderable Tithes and afterwards the Lands for which the Tithes were paid are improved by the owner he shall onely pay the accustomed Tithes paid for them before the improvement of them to wit for the seven last years immediately preceding the improvement but if no Tithes were paid for them before the improvement no Tithes shall be paid for them after the improvement 1650. B. S. Venue and Venire Facias AVenire Facias ought to be de aliquo vicineto that is neighborhood and there if the Writ of Venire do say Venire Facias homines Burgi it is not a good Venire for it ought to be Venire Facias homines de Burgo 21. Car. B. r. Q Differentiam inter of and from If a special Verdict be imperfect in matter of substance there must be a new Venire that there may be a new Verdict found because the ill Verdict doth not give the Court power to Judge of the matter in Law and so it is also if a demurrer upon an evidence be not good By Rolle Mich. 22. Car. B. r. Trin. 23. Car. B. r. Q. A Venire Facias that is filed cannot be altered without the consent of the parties Mich. 22. Car. B. r. For the filing of it doth make it a Record In an Action of Trespass and Ejectment the venue ought to be from the Vill or Hamlet where the Lands in question do lye and if the Lands lye in no Vill or Hamlet the venue ought to be de corpore Comitatus that is from the body of the County Mich. 22. Car. B. r. The Judges may alter the venue from the place whence by the Law it ought otherwise to be if they believe there cannot be an indifferent tryal in the County where the venue was first laid Mich. 22. Car. B. r. By reason of the great power that one party hath in the County or for some other cause Where the venue cannot be from a Vill Hamlet or lieu conus there it may be de corpore comitatus Mich. 22. Car. B. r. For if it might not be so the cause could not be tryed A lieu conus is a Castle Mannor or other notorious place well known and generally taken notice of by those that dwell about it and not a close or Pasture ground or such like place of no repute Mich. 22. Car. B. r. In all cases where there is to be a special Jury there the Venire Facias must be special Mich 22. Car. B. r. For ordinary forms are not applicable to extraordinary cases If the matter to be tryed be within divers places in one and the same County the Venire shall be general but if the matter be in divers Countries there the venire ought to be special Mich. 22. Car. B. r. For the general form of a venire doth not warrant to return a Jury in one cause out of divers Counties but in such cases to prevent the failer of Justice the Court hath power to vary from the old forms Where a certain place cannot be known whence the venue should be the venue is to be de corpore comitatus and so it is where a custom of the County is to be tryed for the custom runs through the whole County Hill 22. Car. B. r. And therefore may be indifferently tryed by Jurors returned from any part of the County A fault in a Venire is helped after a Verdict by the Statute of Jeofailes but where the venire is wholly insufficient it is not helped for the Statute extends not to such venires Hill 22. Car. B. r. After a Plea pleaded and an issue joyned in the cause the Venire cannot be amended except the parties consent to it Hill 22. Car. B. r. Pasc 24. Car. B. r. Trin. 24. Car. B. r. If the venue be laid in a foreign County and the parties proceed to issue in the cause the Court will not change the Venue afterwards although the Defendant would try the issue afterwards by provisoe Pasc 23. Car. B. r. Where the Verdict is imperfect so that Judgement cannot be given upon it there must be a new venire to try the cause de novo Mich. 23. Car. B. r. For the former tryal is to no purpose If a matter in Law be depending undetermined and an issue also joyned in the cause there must be a special venire awarded tam ad tryandum exitum quam c. Hill 23. Car. B. r. It is not necessary to enter the venire facias before the tryal but the Plaintiffs Atturney ought to give a Copy of it unto the Defendants Atturney before the tryal if he desire it and after the tryal it may be entred Pasc 24. Car. B. r. A Venire de vicineto Civitatis is good without naming of the Parish within the City out of which the Jurors are summoned and so was it said to be adjudged in Gavell and Gippoes case 10. Jacob. contrary to the book of 5. H. 5. For a City may have but one Parish in it The party that will move to have the venue changed he must move for it the next Term after the Action is brought Trin. 23. Car. B. r. This Court ought not to change the venue so that by it the cause cannot be tryed within the jurisdiction of the Court Trin. 23. Car. B. r. If the Defendant will move to change the venue he must make oath that the cause of Action if any be did arise in the County where he would have the venue laid and not in the County where the Plaintiff hath laid his Action and the Defendants Atturney or his Clerk must make oath that he received the Plaintiffs Declaration after the precedent Term and not before Trin. 23. Car. B. r. Or else the Court will not change it Where an Action is brought for a real thing which is called a real Action the venue ought to be laid in that County where the thing is