to defraud the Plaintiff of his appearance but the Atturney ought by the Rules of the Court to appear for him according to the Rules of the Court notwithstanding his Warrant be so repealed Trin. 22. Car. B. r. If an Atturney do practice deceitfully an Attatchment lies against him out of this Court at the prayer of the party grieved if he make it appear to the Court and good costs shall be given against him 22. Car. B. r. An Atturney and his Clerk were both committed by the Court for entring things against express Rules of the Court and after notice of those Rules given them by the Atturney of the other side 22. Car. B. r. One Atturney ought not to suffer another Atturney to practice in his name by reason of many inconveniencies that often happen to the Clyents by this means 22. Car. B. r. One G. H. an Atturney was ordered to be put out of the Roll of Atturneyes for entring a judgement against an express Rule in Court Mich. Car. 22. B. r. but it was not done The proper place for the Atturney General to sit upon any special matters wherein his attendence is required in Court is under the Judges on the left hand of the Clerk of the Crown Mich. 22. Car. B. r. No Under Sheriff ought to be Atturney for it is often the cause of encreasing of Suits and also a hindrance in dispatch of Clyents causes Trin. 23. Car. B. r. If the Atturney of the Plaintiff or Defendant do dye hanging the Suite and the other party whose Atturney is dead have notice given of it and will not retain another Atturney to prosecute for him the other party may proceed and is not bound to hinder his Clyents cause for it Mich. 23. Car. B. r. The Plaintiff or Defendant may change his Atturney pending the Suite without leave of the Court but it is not fair practice to do it without just cause Mich. 23. Car. B. r. It was the old course in proceeding in an Action of Trespass and Ejectment to deliver the Lease of Ejectment to the party to whom the Plaintiff had made a Letter of Atturney to execute the Lease and for the Atturney to deliver possession of the Land upon the delivery of the Lease Pasc 24. Car. reg If one have a Letter of Atturney to deliver a Deed to another and also authority from the party by word of mouth to do it he may make use of which of these he will to do it by but not of both for the first that he makes use of shall be effectual and the other shall be void Pasc 24. Car. B. r. An Infant ought not to appear to an Action by an Atturney but by his Guardian for he cannot retain an Atturney but the Court may assigne him a Guardian Pasc 24. Car. B. r. The Atturneys ought to be ordered in the ordinary manner of their practice by the Master of the Office and if differences arise betwixt them concerning it he is to hear both parties and to order the matters in difference betwixt them and they are to submit to him Pasc 24. Car. B. r. and the Court is not to be troubled but in extraordinary and difficult matters If there be divers Defendants declared against in one Declaration the Atturney in the cause on the Defendants part cannot be compelled to appear for more of the Defendants then for those from whom he hath Warrant to appear 24. Car. B. r. If one retain one by Warrant to be his Atturney in a Suite depending against him in this Court he may appear for him by that Warrant in all Suites which are there depending against him Hill 1649. B. Sup. Atturneys ought to be of some Inns of Court or Inn of Chancery and not to lodge in Inns or Ale-houses or in private places By Roll chief Justice Hill 1649. B. Sup. 8. Feb. Atturneys of the Upper Bench ought to be allowed in all Circuits as the Atturneys of the Common Pleas are although it hath been denyed them in the Western Circuit and ought not to be compelled to pay extraordinary Fees for practising there per Rolle Pasc 1650. 1. Maii. vid. 1. H. 7. f. 12. a. that the Atturneys of the Upper Bench are not Atturneys upon Record Ergo quaere An Action upon the Case lyes for the Clyent against his Atturney if he plead a Plea for him for which he hath not his Warrant Hill 49. B. Sup. The Atturneys of this Court were ordered from hence forth to besworn as the Atturneys of the Common Pleas are by Rolle Pasc 1650. 1. Maii B. Sup. One cannot force an Atturney to be his Atturney against his will by Rolle Chief Justice One may be an Atturney for a Clyent upon Record and yet another Atturney may act all the business for this Clyent An Atturney that hath Warrant to appear for his Clyent may plead for him without another Warrant by Rolle Chief Justice See Q. for divers Clerks in Court said privately that he cannot plead no any other Plea for his Clyent without a special Warrant but a non sum informatus If an Attnrney dye pending his Clyents cause his Warrant of Atturney is determined and his Clerk may not proceed in the Suite without another Warrant by Rolle Chief Justice Actions There ought to be both apparent malice in the Defendant and prejudice also done to the Plaintiff to ground an Action upon the Case upon or else it will not lye for if there be only malice and no dammage done by it there can be nothing recovered and so the Action will be vain and to no purpose and if there be only dammage and no malice it is but damnum sine injuria and not punishable by Law Hill 21. Car. B. r. Where there are two several dammages done to the party he ought to have two several Actions and not to joyn them in one Action Entred Oct. 156. 20. Car. Hill 21. Car. B. r. Although dammage without wrong will not maintain an Action nor malice without dammage yet malice may aggravate the dammages recoverable where there is dammage and wrong meeting together Hill 21. Car. B. r. Where two Actions though of several natures do depend one upon the other the abatement of one of the Actions is the abatement of both Hill 21. Car. B. r. In an Action upon the Case grounded upon a promise the Declaration is Actio in super casum in the singular number although the Action be brought upon divers promises for the word Case includes all 21. Car. B. r. An Action brought against a Constable for a thing done by him by vertue of his Office ought by the Statute to be brought against him in the County where he is Constable and not else where 21. Car. B. r. A Transitory Action may be laid in any County at the will of the Plaintiff yet generally and it seems the better and more indifferent course so to do it useth to be laid in that County where the cause
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
shall be accounted to be given for those things only for which Dammages may be given and the expressing the other things shall be accounted idle and void Trin. 24. Car. B. r. If an Action of Trespass be brought and the Defendant pleads and the Plaintiff joyns issue with the Defendant and after issue joyned he is non-suit he shall pay the Defendant Costs for his false vexation of him by the Stat. of 4. Jac. And upon very good reason For it shall be intended that if he had had good cause of Action against the Defendant that he would not have become non-suit When a judgment is given by default then the Court doth assesse the Dammages and not the Jury Mich. 1649. B. r. For there is no issue tryed If an Action of Trespas be brought against divers persons and some of them plead to issue and others do not and the issue is found for the Plaintiff and Dammages are given as well against those that joyned not in the issue as against them that joyned in the issue these Dammages are well given Mich. 1649. B. S. For the Trespas is found and that the Plaintiff was damnified so much by reason thereof If Dammages be assessed and it is not expressed that they are assessed pro Misis Custagiis this is erroneous for it doth not appear by the Record for what the Dammages are assessed as it ought to do Hill 1649. 31. Jan. B. S. For Records ought to be certain and not ambiguous All Costs are given ex assensu partium that is by the consent of the Plaintiff and the Defendant By Woodward Clarke Hill 1649. 4. Feb. B. S. If the Defendant whose title is concerned in an Ejectione firmae will not defend his title to the Land in question and the verdict do pass against the Plaintiff the ejector may release the Dammages 11. Feb. Hill 1649. B. S. For they do properly belong to hiâ—… One that sues in forma pauperis if the Cause go against him yet he shall pay no Costs if he were admitted to sue in forma pauperis in the suit which passeth against him before the suit began but if he were admitted to sue in sorma pauperis pendente lite that is whilst the fuit depended he shall pay Costs By Rolle Chief Justice who said it had been so antiently held and ruled 16. Nov. 1650. B. S. But Q what Costs whether the Costs of the whole suit or only with relation from the time he commenced his suit to the time he was admitted to sue in Forma pauperis In a Writ of Dowr if the Plaintiff recover and yet doth not desire a Writ of enquiry of Dammages to recover the Dammages the Court may tax the Dammages 5. Feb. 1650. B. S. The Court may encrease the Dammages which are found by the Jury upon a Writ of enquiry of Dammages in an Action of Assault Battery and Wounding if they see cause upon the view of the party that was beaten and wounded Trin. 1651. B. S. This was done in the Case of Davis Plaintiff and the Lord Foliot Defendant The Court will not compell the party that is non-suit in a Cause to pay his Costs upon the non-suit but if the party will not pay them when they are taxed the Court will not suffer him to commence his suit again untill he have paid them Pasc 1652. B. S. After judgment is given in a Cause depending in this Court the Court cannot make a Rule for the payment of the Costs which were expended in prosecuting the suit By Rolle Chief Justice 1655. B. S. For after judgment the parties are out of Court for the Cause is determined Q. No other Costs or Dammages shall be given upon a Recovery in an Action brought upon the Statute of 2º Edw. 6. for not setting forth of Tythes than the Dammages which are expressed in the Statute which is treble dammages 1655. B. S. For the course of the Common Law in such cases is altered by the Statute and it shall be intended that the Plaintiff hath better satisfaction thereby Deputies The Common Law doth in many Cases take notice of Deputies but it doth never take notice of under-Deputies Trin. 23. Car. B. r. As of the under-Sheriff who is but the Sheriffs Deputy sub-Almoner or Deputy-Almoner For in many Cases an Officer may be Law make a Deputy but a Deputy hath no power to depute another under him The King by his speciall Commission may make Deputy Escheators to finde an Office after the death of an Honourable Person Pasc 24. Car. B. r. As of a Duke Earl Marquess Viscount Baron c. Q. Whether in some speciall Case he may not do it after the death of one that is not of the Nobility It seems he may Default Before a verdict is taken by Default the Cryer of the Court doth call the Defendant three times and then if the party do not appear the Plaintiffs Counsell doth pray the verdict may be so entred Hill 21. B. r. Debt An Action of Debt doth lye against the Husband for goods which were delivered as sold unto the Wife because the Law doth intend that they were employed and came to the use of the Husband Hill 21. Car. B. r. And the Husband and Wife are but one person in Law If there be an erroneous judgment given for the Plaintiff in a personal Action in the Common Pleas and thereupon he brings an Action of Debt against the Defendant upon the erroneous Judgement in this Court the Action will well lye here until the Judgement in the Common Pleas be reversed by a Writ of Error 21. Car. B. r. For an erroneous Judgement is not void but voidable But when it is made void by a Writ of Error then there is no ground to support the Action of Debt so that then it cannot be maintained If one do assume upon a consideration moving from I. S. to perform a thing which concerns A. B. and do not perform it I. S. may bring an Action of Debt upon the Assumpsit against him that did so assum upon himself Mich. 22. Car. B. r. For the Action is grounded upon the promise made and the not performing it to I. S. to whom it was made In some Case an Action of Debt will ye though there be no contract betwixt the party that brings the Action and him against whom the Action is brought Mich. 22. Car. B. r. An Action of Debt lies against a Sheriff for moneys which he hath levyed by vertue of a Writ of fieri facias for the party that did recover the moneys for the Law doth create a privity by the fieri facias betwixt the Sheriff and the party that sued out the fieri facias Mich. 22. Car. B. r. If An Action of Debt be to be brought against an Administrator for Rent which was due by the Intestate upon a Contract made betwixt him and the Intestate in his life time the Action must he brought in the County where the Contract
also navigation An Endictment that is framed upon a Statute ought to pursue the words of the Statute or else it is not good Mich. 22. Car. B. r. For the offence being made by the Statute for which the party is Endicted it is reason the Statute should be punctually recited One that is convicted upon an erroneous Endictment cannot move after his Conviction to have the Endictment quashed but must bring his Writ of Error to reverse the Judgement given against him upon the Endictment Mich. 22. Car. B. r. For after Judgement it is too late for an Endictment is quashed for the insufficiency in it or because no good Judgement can be given upon an erroneous Endictment The Court will not quash an Endictment that is preferred for the publick good although it be not a good Endictment but will put the party Endicted to traverse it or to plead unto it Mich. 22. Car. B. r. For it is by the favour of the Court that any Endictment is quashed for if the Court please they may force the party to traverse or plead An Endictment removed by a Writ of Certiorari into this Court may be sent back again into the County or place whence it was removed if there be cause to do it Mich. 22. Car. B. r. If an Action upon the Case be brought against one for calling another Theif and the Defendant doth justifie the words and upon the tryal it be found for the Defendant an Endictment may be forthwith framed against the Plaintiff to try him for the Felony Mich. 22. Car. B. r. For the Felony appears to the Court by the Verdict found for the Defendant An Endictment doth lie against one that cheates another at play with false Dice Hill 22. car B. r. Or for any other way of cheating at play or otherwise An Endictment doth not lye for a private nusance or other injuries because the nusance or injury done is not made ad commune nocumentum but ad privatum and therefore an Action upon the Case doth only lye for the party that 〈◊〉 damnified by this nusance or injury Hill 22. Car. B. r. 11. Maii. 1651. For Endictments are to punish publike offences onely and done against the publick peace An Endictment lies against one for assaulting and stopping of another in his passing in the High-way 22. Hill Car. B. r. One that it Endicted for Felony may have Councel Assigned him to speak for him Pasc 23. Car. B. r. But such Councel are only to speak for him in matter of Law and not concerning matters of Fact Although a Bill of Endictment be preferred to a grand Jury upon Oath yet they are not bound to find the Bill if they find cause to the contrary and on the otherside although a Bill of Endictment be preferred unto them without Oath made yet they may find the Bill if they see cause Pasc 23. Car. B. r. But it is not usual to prefer a Bill unto them before Oath be first made in Court Every Endictment ought to be preferred against the party for some offence committed by him either against the Common Law or against some Statute Trin. 23. Car. B. r. There ought to be fifteen dayes between the preferring of an Endictment and the convicting the party Endicted Trin. 23. Car. B. r. Q. In what cases for I conceive it holds not in all An Endictment lies against one that makes a false oath in an answer to a Bill in Chancery or in an Affidavit made in a cause depending there or in any other Court of Record Trin. 23. Car. B. r. But Q. for what false oath made in an answer it lieth for it hath been held that though the whole answer be not in all points true yet an Endictment lies not because answers in the Chancery are drawn by Councel and not the party himself Where the party Endicted is Out-lawed upon the Endictment the Court will not quash the Endictment although it be erroneous but will force the party Out-lawed to bring his Writ of Error to reverse the Out-lawry Mich. 23. Car. B. r. An Endictment may be amended the same Term it is brought into the Court by the Clerk of the Peace but the next Term after he cannot amend it Pasc 24. Car. B. r. If onely a word of form be left out in an Endictment yet the Endictment is good but if one word of substance be omitted the whole Endictment is naught Pasc 24. Car. B. r. An Endictment of forcible entry doth lye for a Tenant for years who is forcibly put out of his possession By the Statute of 21. Jac. Pasc 24. Car. B. r. Upon an Endictment preferred against one in the Kings Bench there doth issue out an Attatchment against the party Endicted to force him to appear Pasc 1650. 1. Maii. B. S. Execution An Execution may issue forth out of this Court notwithstanding a Writ of Error be brought in the Exchequer Chamber to reverse the Judgement given here and upon which the Execution is grounded if this Court be satisfied that there is no Error in the Judgement or if the Record be not duly removed out of this Court by the Writ of Error Mich. 22. Car. B. r. One may pray for Execution upon a Judgement given in the Court where it was given although a Writ of Error be brought to remove the Record and to reverse the Judgement if he that brings the Writ of Error do not assign his errors in due time Mich. 22. Car. B. r. The Court may grant Execution upon a Judgement given although a Writ of Error be brought to reverse the Judgement if the Court be satisfied that the Writ of Error is brought meerly to delay the party from his Execution Mich. 22. Car. B. r. For the Law doth not countenance delayes but delights to have speedy Justice done to all parties though it loves not to surprise any person by over hasty proceedings If Execution be not taken within two years after Judgement is given in a Cause there must be a Scire facias taken out to revive the Judgement and Execution cannot be taken out Mich. 22. Car. B. r. But this Scire facias may be taken out of course without moving the Court But if Execution be not taken out in seven years after or longer then a Scire facias cannot be taken out to revive such a Judgement without moving the Court but upon motion the Court will grant it The Court will not deliver one out of prison that lies there in Execution upon an Affidavit But the party may have a Writ of Supersedeas to Supersede the Execution if there be cause Trin. 24. Car. B. r. Be the matter contained in the Affidavit never so strong for the prisoner because he lies in prison by matter of Record and must be delivered by an Act of as high a nature which an Affidavit although it be made before a Judge of the Court and is filed in Court is not The Court cannot divide an Execution
entred upon the Judgement and so the Judgment in the Trespass and the Act of Oblivion are both satisfied 1651. B. S. One may speak in Arrest of a Judgement given upon a nihil dicit after the Writ of Enquiry of dammages is executed upon that Judgement Mich. 23. Car. B. r. Infant An Infant ought not to appear to an Action brought against him by his Atturney but he must appear by his Guardian Pasc 24. Car. B. r. For he cannot make an Atturney and the Guardian is Assigned but with the consent of the Infant by the Court Trin. 24. Car. An Action of Debt doth lye against an Infant upon his promise to pay for necessaries as meat and drink lodging and apparel but if the Infant and the party from whom he had these necessaries do come to an account and reduce that which the Infant is endebted for them to a certain sum of money and upon this account the party brings an Action against the Infant for the money stated to be due by the account this Action will not lye against the Infant Trin. 24. Car. B. r. For the account upon which the Action is grounded is void for an Infant can agree to no such account Justification Where the Action concerns a transitory thing if the Defendant do justifie the taking or doing in one place this is a Justification in all places but if the Action concern a local thing a Justification in one place is not a Justification in another place Pasc 24. Car. B r. For in the former Case the place is not material but the meer doing or taking of the thing but in the latter the place is material for the Defendant it may be may be able to Justifie in one place and yet may be guilty in another place Jurisdictions The essentiall difference betwixt Free Chappels and other Churches and Chappels is that all free Chappels are free from the Jurisdiction of the ordinary Hill 23. Car. B. r. So that the ordinary is not to intermeddle with them in any thing that doth concern them or to visit them whereas all other Churches and Chappels are within the Jurisdiction of some ordinary and may be visited The Jurisdidiction of a Court where a cause is depending cannot be extended further in relation to that cause by the Consent of the Plaintiff and Defendant then of right it ought to extend Pasc 24. Car. B. r. For this would be for the parties to erect as it were a Court which was not before for the tryal of their cause and by this means the Jurisdictions of every Court would grow to be unlimited This Court hath no conusance of the proceedings in Parliament Pasc 24. Car. B. r. So held in John Lilburns Case because the Parliament is the supreme Court and subject to no other Court. This Court hath a general Jurisdiction to reform the abuses of all persons in their behavior throughout all England and the abuses and miscarriages of all Courts of Justice throughout all England 9. Feb. Hill 1649 B. S. 3. Julii 1650. B. S. If the Court of Chancery do grant a Habeas Corpus to a prisoner that is in the custody of the Marshall of this Court this Court hath not power to restrain the prisoner so long as the Habeas Corpus is in force 3. July 1650. Trin. B. S. In the Case of Sir Arthur Smithes and Workman This Court hath Jurisdiction over all the Courts of England in all Mandatory Writs 10. Feb. 1650. B. S. Injunction An Injunction out of the Court of Chancery doth not lye to stay execution after a Judgement given at the Common Law although the Bill upon which such Injunction is granted were put in before the Judgement given at Law for although the Chancery make a difference between exhibiting the Bill before the Judgement given and the exhibiting a Bill after the Judgement given yet this is no good difference for it is a like in both Cases Trin. 23. Car. B. r. But the Chancery may if there be cause stay proceedings at Law before Judgement given Information If by a penal Statute he that prefers an Information against another for an offence done against this Statute is to have half of the penalty which shall be recovered upon this Information there if an Informer do prefer an Information upon the Statute before any Information is preferred by the King the King cannot hinder the Informer from having his proportion of the penalty given him by the Statute but if the King do first prefer the Information he may Inform for the whole penalty Pasc 23. Car. B. r. For the King is not bound to stay till an Informer prefer the Suit but may sue at any time and if no body Inform none hath right to the penalty but the King and he may pardon it If the Marshall of the Kings Bench do misdemean himself in his office to the prejudice of any person he who is prejudiced by his misdemeanor may prefer an Information against him in this Court Hill 23. Car. B. r. And if he be found guilty upon a tryal thereupon had he may be fined by this Court or put put out of his Office if the Court shall see cause to do it The Clerk of the Crown ought not to set his hand to an Information without examining the cause for which it is preferred Pasc 24. Car. B. r. For if there be not at least in probabilities good matter in Law to ground an Information upon the party that doth prefer it is not to be assisted and encouraged in it for the Law doth abhor vexations and causeless suites An Information may be preferred in this Court against the Inhabitants of any Town or Village in England for the not repairing the High-wayes which by Law they are bound to repaire Mich. 1649. B. S. For this Court may punish offences done against the Weal Publick all England over If an Information be preferred at the Suite of the party there the Endictment ought to be brought to a tryal at the charges of the party that prosecutes the Endictment but if an Endictment be preferred at the Suite of the King there the Endictment shall be brought to tryal at the costs of the party against whom the Information is brought Pasc 1650. 24. Maii. B. S. Although an Information be faulty in the body of it yet upon a motion the Court will not quash it but the Defendant must demur to it for its insufficiency Pasc 1650. B. S 24. Maii. Justice of Peace A man may be a Justice of Peace in one part of Yorkeshire and yet not be a Justice of Peace in every part of the County Hill 22. Car. B. r. For Yorkshire is divided into divers parts called Ridings viz. into the East Riding West Riding and North Riding and he may be a Justice of Peace in one of those Ridings and yet not a Justice of Peace in another of those Ridings but generally a Justice of Peace of a County is a Justice of
of Mich. 22. Car. B. r. Except he tye himself by special covenant and agreement to do it for the Law will not put an unnecessary trouble upon any man If one do commence an Action in this Court against another and doth not proceed to a tryal in his action by the space of a whole year next after he began his Suit he ought afterwards by the Rules of the Court to give the Defendant one whole Terms Notice that he will try his cause before he proceed to a tryal therein Mich. 22. Car B. r. For his delay might give occasion to the Defendant to conceive that he intended to let his Action fall and so to neglect to make provision for his Defence at the tryal and therefore it is but reason that he should have more then ordinary Notice in an extraordinary case If the Plaintiff give the Defendant Notice for a tryal against him and do not try his cause the same Term he gave Notice for the tryal he ought by the Rules of the Court to give the Defendant new Notice before he proceed to a tryal afterwards but if the Plaintiff do try his cause the same Term wherein he gave Notice he would try his cause although it be at another day after the day he gave Notice he would try it yet he is not bound to give new Notice before he try it for the Defendant is bound to attend the try-all at his own perill Mich. 22. Car. B. r. So it is where Notice is given for a tryal at the Assizes and by reason of multiplicity of business the cause cannot be tryed at that Assizes but though the cause cannot be tryed at one day of that Assizes yet it may be tryed at another day and therefore the parties must attend all the Assizes at their perill without further Notice If Notice for a tryal be given to the Defendant himself or to his Atturney this is a good Notice but if Notice be given thereof to the Councel of the Defendant it is not a good Notice Hill 22. Car. B. r. For Councel are not bound to take notice of such a warning for a tryal nor to give the Clyent Notice thereof and it may be though one have been formerly of Councel with the Defendant in other business or in the cause to be tryed yet he may not be of Councel at the tryal The Plaintiff and Defendant are both bound to take Notice of such Rules of the Court as do concern the proceedings of their cause at their own perills Hill 22. Car. B. r. For if they know them not yet they may inform themselves by their Councel and Atturneys But this is onely to be understood of the general Rules and not of particular rules made upon the motion of either party for of such rules their ought to be notice given to the party concerned Pasc 24. Car. B. r. When Councel are to argue a matter in Law in Court the Judges ought to have Notice thereof given unto them before the day except it be where the Court have appointed a set day for it or if there be not such Notice given then the cause is to be put in the paper of causes that it may come on in course to be spoken unto Pasc 23. Car. B. r. By putting it in the paper the Judges have Notice for they have a paper of the causes to be spoken to in matter of Law the day before they be spoken to by the Officer of the Court. The Officers in Court ought to take Notice of the proceedings of the causes depending in Court Pasc 23. Car. B. r. For for that cause do they sit in Court If the Plaintiff or his Atturney do give Notice unto the Sollicitor of the Defendant that he intends to try his cause at such a time this is a good Notice of the tryal although it be not given unto the Defendant nor his Atturney Pasc 23. Car. B. r. For it is the duty of the Sollicitor to inform his Clyent of it and if he do it not it shall be accounted the folly of the Clyent to entertain a Sollicitor that is so careless in his business and in this case there is no default in the Plaintiff The Defendant ought to have eight dayes Notice of the tryal of the Plaintiffs cause before it be tryed if he live twenty or thirty miles off from the place where the cause is to be tryed but if he live further off he ought to have fourteen dayes Notice before the tryal Trin. 23. Car. B. r. That the Defendant may have convenient time for his journey and to prepare his Councel and witnesses for his tryal The Plaintiff may if he please give the Defendant Notice when he intends to try his cause the same day that he hath joyned Issue with the Defendant in the cause to be tryed betwixt them Trin. 23. Car. B. r. If one be bound by the rule of the Court to give unto another personal Notice of a thing it is not sufficient that Notice be left at the dwelling house of the party Mich. 23. Car. B. r. For personal Notice is Notice given to the person of the party himself and not to another It is not necessary for the Plaintiff to give new Notice of the tryal of his cause where a retraxit is entred for this is but a forbearance to try his cause hac vice and he may afterwards proceed notwithstanding the retraxit was entred Mich. 23. Car. B. r. The entring of a retraxit is when the Plaintiff after he hath entred his cause to be tryed and hath put in his Record doth make an entry in the Judges book that he hath withdrawn his record and intends not then to proceed to his tryal It is sufficient upon an Action of Trespass and Ejectment brought to try the title of Land if the Tenant in possession of the Land have Notice of the Lease of Ejectment although he be but an under Tenant of the Land and although no notice thereof is given to the upper Tenant or to the owner of the Land whose title is concerned Hill 23. Car. B. r. Pasc 24. Car. B. r. For the possession of the Land is onely recoverable in this Action and that doth chiefely concern the Tenant in possession of it A Clerk of Commissioners of Sewers is such a Clerk as the Law takes Notice of Hill 23. Car. B. r. For he is an Officer appointed by Act of Parliament Q. If the Panel of the Jury Impanelled to try a cause be returned and be afterward altered or changed before the tryal the other party ought to have Notice of it otherwise it is a surprizal of the party Pasc 24. Car. B. r. If the Plaintiff give Notice to the Defendant for a tryal and there is no Jury returned to try the cause so that the cause cannot be tryed at the day appointed if the Plaintiff will afterwards try his cause he must give the Defendant new Notice of this tryal Pasc
24. Car. B. r. Else the Defendant cannot be able to know against what time he must attend to make his defence If the Plaintiff give but eight dayes Notice of a tryal unto the Defendant where by the rules of the Court he ought to have given him fourteen dayes Notice thereof yet he may enlarge the eight dayes unto fourteen dayes after the Notice of eight dayes given By Hodsden Secondary Trin. 24. Car. B. r. By the course of the Court the Defendant ought to have convenient Notice of the executing of a Writ of Enquiry of Dammages before it be executed as well upon a demurrer as a Verdict Trin. 24. Car. B. r. That he may prepare to give evidence to the Jury that are to inquire of the dammages for the mitigation of them This Court is not bound to take notice of orders made and of things which are done at the Assizes although it be by a Judge of this Court Mich. 24. Car. B. r. For the Justices of Assize c. do Act by special Commissions and not as Judges of the Common Law of any of the Courts at Westminister When either the Plaintiff or Defendant doth intend to move the Court in any matter which may prove disputable the party that thus intends to move ought to give Notice to the other party that he doth intend to move the Court in it and to express for what he will move and when Mich. 1650. B. S. That he against whom the motion is to be made may not be surprized but may have time to provide and may attend the Court to defend himself and answer the motion If the Plaintiff doth tell the Defendant that he will try his cause the first sitting in the next Term this is a good Notice given of the tryal although he do not expresely say upon what day of the moneth or week it is Mich. 1649. B. S. For the Defendant may inform himself of the precise day when that sitting will be although the Plaintiff do not express it and it may be he did not know it himself In the Common Pleas in an Action of Trespass and Ejectment if there be not Notice given to the Tenant in possession of the Land in question who is the Ejector in the Action they will not suffer the Plaintiff to proceed to a tryal upon such a Lease Mich. 1649. B. S. This I conceive is for the better recovering of Costs in case the Plaintiff be non-sute If the Plaintiff do give unto the Defendant Notice for a Tryal before Issue is joyned in the Cause this is no good Notice Hill 1649. 5. Feb. B. S. For before Issue joyned there is nothing to be tried and so this is a vain Notice and to no purpose and it may be there will never be any Issue or Tryal and so the party if he should attend upon such Notice might lose his pains and costs If the Plaintiff carry down his Cause to be tried at the Assizes and it be not then tried for want of time and doth bring it down again at the next Assizes to try it he is not bound to give the Defendant new Notice of this Tryal but if he do not bring it down to be tried at the next Assizes and yet will try it at another Assizes after that he must give the Defendant new Notice before he try it Pasc 1650. 6. Maii. B. S. For the Defendant may doubt whether he will try it or no having desisted so long from trying it and so might be surprized if he should not have new Notice of the Tryal The party that intends to move the Court in a questionable matter ought to give Notice thereof to the party against whom he intends to move or to his Attorney or Sollicitor and not to his Councel for such Notice is not good 1650. 3. Julij 1650. B. S. For the Councel is not concerned to take notice of any thing but from his Clyent It is a sufficient Notice for the Plaintiffs Attorney to tell the Defendants Attorney that he hath put in a Declaration into the Office against his Clyent and he is not bound to give him a Copy of it 13. Nov. 1650. B. S. For there he may take a Copy of it but usually they do deliver Copies to one another of the Declarations and Pleadings in their Clyents Causes If the Assizes that are to be held for that County where an Issue is to be tried do fall out to be fourteen dayes after the end of that Term wherein the Issue was joyned It is not necessary to give fourteen dayes Notice before the Trial that the Plaintiff will try his Cause at that Assizes although the Defendant do dwell above fourty miles from the place where the Assizes are to be held 22. April 1650. B. S. For the Defendant knows the Tryal by the usual course is to be at that Assizes and must attend there at his peril If one be bound by an Assumpsit to do a thing to another he to whom the promise is made must give him Notice when he will have him do it but if he promise that another person shall do it to him there he to whom the thing is to be done is not bound to give Notice to that other person when he will have it done 13. May. 1651. Pasc B. r. For it may be he may not know that other person and there is no privity of Contract between them two as there is betwixt the other two After a ne recipiatur is entred into the Judges Book so that the Cause cannot be tried at that time if the Plaintiff will try his Cause afterwards at another time according to fair practice he ought to give the Defendant new Notice before his Tryal but in strictness of practice he is not bound to give new Notice of it for the first Notice is to serve for all that Term and a ne recipiatur serves only to hinder the Tryal for that day whereon it was set down in the Judges Book to be tried Trin. 1651. B. S. This is to be understood of Causes that are to be tried by the Judges every Term and some dayes after the Term in London and Middlesex and not of Causes to be tried at the Assizes One is not bound to give Notice to another of a Rule of Court made against him except part of the Rule be that Notice shall be given unto him of the Rule Trin. 1651. B. S. For it is intended that his Attorney was in Court when it was made and that he did take notice of it or else that there needs no Notice in the Case because that the party ought to have done that which he is ordered to do without a special Rule made in the Case If a Cause be ready for Tryal and Notice is thereupon given of the Trial and afterwards the Cause is put to a reference and doth depend two or three Terms under reference and being not determined the Plaintiff intends to proceed to
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
satisfaction the Law will not intend that he is damnified and so he hath no Cause of Action When the Court doth order one to plead presently it is to be understood that he shall plead in such convenient time after as the Court shall judge reasonable Mich. 22. Car. B. r. The Defendant may amend his Plea although it be three Terms after it was pleaded if he will pay Costs Mich. 22. Car. B. r. But it must be by leave of the Court because it is against the common Rules of practice Although a Plea do contain divers matters in it upon which an Issue may be taken yet this Plea is not double if the Plea could not have been good without alleadging all those matters in it Mich. 22. Car. B. r. For though the Law doth not allow captious Pleas yet it doth not deny the Defendant to plead all such matters that his Case affords for his just Defence If the Defendant Plead an insufficient Plea and there is a good Issue joyned upon that Plea and a Verdict given upon that Islue for the Defendant the Plaintiff shall not afterwards take advantage of the insufficiency of the Plea Mich. 22. Car. B. r. For it was his own sault to joyn Issue upon it when he might have demurred upon it Where one Pleads Letters of Administration which are granted by such an ordinary whereof the Law doth take notice he may Plead that they were granted unto him debito more but if they be granted by an inferior ordinary of whom the Law doth not take notice of he must Plead that they were granted unto him per ordinarum illius loci Mich. 22. Car. B. r. That the Court may the better Judge whether they be well granted in regard of the power of the ordinary that granted them or not If the Plaintiff do alter his Declaration after the Defendant hath Pleaded to it the Defendant may alter his Plea Mich. 22. Car. B. r. For by the amendment of it it may be so altered in matter that it mâ—y require a different answer from what was formerly Pleaded and in that case if he should not amend his Plea he might be triced for want of a good Plea In an Appeal brought all the Pleadings ought to be in French Mich. 22. Car. B. r. Because the Statute which enacted that all Pleadings should be in Latin extends not to this Action and so the Pleadings therein are to be in French as all Pleadings were before that Statute But now by the late Act they are to be in English Q. Tamen Whether that Act do extend to this Action or onely to such Pleas as were formerly in Latin When the Court doth order that the Defendant shall Plead it is intended that he must Plead an Issuable Plea Mich. 22. Car. B. r. For the rule is made to quicken the Defendant that the Plaintiff be not delayed by his Dilatoriness and if he might Plead a Dilatory Plea and not issueable the rule would be to no purpose The Court will not upon a motion rule the Defendant to Plead peremptorily by a day before the common rules of the Court for Pleading be out but then they will Mich. 22. Car. B. r. For till then it cannot be said that the Defendant hath delayed the Plaintiff If a Scire facias upon a Recognizance be brought against an Infant he cannot Plead Infancy or nonage to it but he must bring his audita querela and set forth his case therein and thereby his age shall be tryed by the Courts inspecting of him and not by a Jury Hill 22. Car. B. r. If the Plaintiff do release his cause of Action to the Defendant yet the Court will not upon a motion stop the Plaintiffs proceedings in the Action but the Defendant must Plead this release Hill 22. Car. B. r. In bar of the Action for the Court cannot take notice of the release upon a motion It is not a good Plea to Plead a Paroll agreement in bar of an agreement made by indenture between the parties Hill 22. Car. B. r. For an agreement by Indenture is a more solemn agreement and of a higher nature then a Paroll agreement and must be discharged by some act of as high a nature as it is A double Plea is such a Plea that one Issue cannot determine all the matter issuable that is contained in it and also where the Defendant is put to a double answer Hill 22. Car. B. r. And such a Plea is not a good Plea If the Defendant do Plead a frivolous Plea to the intent to delay the Plaintiff and to hinder him from going to a tryal the Court will upon the Plaintiffs motion order the Defendant to plead such a Plea as he will stand to or else to accept of a Demurrer from the Plaintiff unto his frivolous Plea Hill 22. Car. B. r. For it is the Justice of the Court to speed the proceedings in Law and to bring suits to determination as soon as with conveniency and Justice to all parties it may be done By the course of practice in the Court of Common Pleas the principle in a Bond may Plead for his Suerty without his leave or knowledge and acknowledge a Judgement upon the Bond but this Court doth judge it hard practice and will not allow it to be don here Pasc 23. Car. B. r. Now it is said they do not allow it there The practice seemed hard in this respect that the Suerty who intended onely to be bound that the principal should pay the Debt should by the falsity of the principal be presently liable to an Execution for the Debt and be enforced to pay it Where the Defendant may plead the general Issue he ought so to Plead that the whole matter in question may come to be tryed Pasc 23. Car. B. r. For else the Plea is not good because it tenders not such an Issue whereupon the cause depending may be determined which every Plea ought to do for to Plead otherwayes is to no purpose If one bring an Action upon a contract it is a good Plea in bar for the Defendant to Plead quod exoneravit se de Contractu Pasc 23. Car. B. r. For it sounds all one as if he had Pleaded that he hath performed the agreement A Concord by Paroll is no good Plea in bar to an Action brought upon a single Bill which is not penall Pasc 23. Car. B. r. For bare words are not of so great force as agreements put in writting Every Plea must be Pleaded either in bar to the Action brought or in abatement of the Writ upon which the Action is framed otherwise it is but a discourse and not a Plea because the Plaintiff cannot take an Issue upon it and therefore if the Plaintiff do demur upon it and his demurrer be adjudged good he shall have Judgement against the Defendant Pasc 23. Car. B. r. Anciently all Pleadings were in French then by the Statute it was Enacted they should be in
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
amend it if it cannot be done without defacing and much altering of the Record Mich. 22. Car. B. r. The Court will not make application of a Record produced to the matter for which it was produced for the benefit of the party that doth produce it but the party and his Councel must do it Pasc 23. Car. B. r. For if the Court should do it it would be for them to act the part of Counsellors and not of Judges which they ought not to do A transcript of a Record which Record was amended in the Common Pleas may by leave of the Court be amended in this Court by a Clerk of this Court but without leave of the Court nor out of the Court it may not be done Pasc 23. Car. B. r. For a Record cannot be amended without a rule of the Court for that is called the leave of the Court for the Court speaks by their rules The Judges cannot judge of a Record given in evidence if the Record be not sub pede sigilli that is exemplified under seal but a Jury may find a Record although it be not so if they have other matter given them in evidence sufficient to induce them to believe that there was such a Record Pasc 23. Car. B. r. For the Judges are to judge onely de existentibus apparentibus but the Jury are induced by things which are but probable for the most part and accordingly they give their Verdict If a Record be removed into this Court by a Writ of Error and the Defendants Councel in the Writ of Error do not open the Record right as it is unto the Court this false opening of it shall not be prejudicial to the Plaintiff in the Writ of Error but he may examine the Record afterwards and rectifie the mis-recitals Trin. 23. Car. B. r. A Record may be contradictory in appearance and yet may in some case be nevertheless a good Record Trin. 23. Car. B. r. A Record that that is razed remains a good Record notwithstanding the rasure in it yet he that razed it is not to go unpunished for his offence Mich. 1649. Apparent faults of the Clerk onely in Records removed out of inferior Courts into this Court are amendable here by the Statute of 8. H. 6. Trin. 23. Car. B. r. But not other faults or errors in them Neither a Deed enrolled or a Decree in Chancery enrolled are Records but it is a Deed and a Decree Recorded Mich. 23. Car. B. r. For a Record of a Court is made up of the proceedinge in some cause in that Court When a Record is to be spoken unto in Court the Councel at the Bar ought to open the Record before it is to be read by the Clerk in Court by the custome of practice yet the Court may suffer it to be first read if they please Hill 23. Car. B. r. There was a rule of Court made that every Atturney of the Court shall enter the whole Record upon the roll after a Tryal had in the cause before the next Term after the tryal so had upon the pain of twenty shillings to be paid by every such Atturney that shall not do it towards the relief of the poor Hill 1649 B. S. That the Record may be spoken to the next Term after the tryal if there be cause which cannot be done untill the Record be perfected and so by this the not perfecting it the Clyent is delayed A Record cannot be removed by a Writ of Error untill the Judgement in that Record be entred Pasc 1650. B. S. 12. Maii. By Rolle Chief Justice it was the ancient custome to enter the Record of the Cause before the cause was carryed down to the Assizes to be tryed but this course was found to be inconvenient because it could not be amended after the entry of it and therefore now they use not to enter the cause before the tryal be past and therefore he ordered a rule to be set up in the Office that if the tryal do not proceed at the Assizes at which the Record was carryed down to be tryed and the Plaintiff will carry it down again that he give the Defendant new notice of the tryal and so likewise is the Defendant to do where he intends to try the cause by provisoe that the adverse party may not attend with his Councel and Witnesses to no purpose Trin. 1651. B. S. Relief A Relief is the fruit of a Rent-service Hill 21. Car. B. r. And it is twofold that is to say 1. A Relief at the Common Law And 2. a Relief grounded upon a custome Rescous An Endictment for a Rescous returned against one into this Court ought not be quashed although it be erroneous except the party that is endicted for it do appear personally in Court 21. Car. B. r. For he cannot in such a case appear by Atturney because the offence was criminal and personal An Endictment of Rescous ought to express the place where and the time when the Rescous was made or else it is not good for the incertainty of it Trin. 23. Car. B. r. So that the Defendant cannot tell what answer to make for himself An Endictment of one that was Endicted for a Rescous supposed to be made in the fifteenth year of King Charles was quashed for its insufficiency and yet the Rescouser did not appear personally in Court contrary to the common rule observed in such cases the cause thereof seems to be because it was an old Endictment and no proceedings had been made upon it against the party Pasc 24. Car. B. Request Where one is to do a Collateral thing he ought to be requested to do it but where the thing to be done is a part of the contract there needs no Request to be made to the party to do it 21. Car. B. r. For by the contract he hath taken notice at his peril to do it Where one brings an Action of Covenant for not paying of moneys according to the Covenant he needs not alleadge that he Requested the Defendant to pay them but where he brings an Action of Debt for money due by Covenant he ought to alleadge a Request Trin. 23. Car. B. r. Q. Where one is bound to make a special Request for the doing of a thing a general licet saepius requisitus in the Declaration is not sufficient Trin. 24. Car. B. r. For those words are too general and meer matter of form and a special Request ought to set forth the time and place and manner of the Request made In an Action of Debt brought for moneys due upon an Obligation it is not necessary to alleadge a Request Trin. 24. Car. B. r. For the very bringing of the Action is a demand of the money in judgement of the Law and the party was bound by his own Deed to pay the money at his peril One may make a Request by Atturney for the payment of moneys due upon an Obligation Mich. 24. Car. B. r.
avoid trouble and charge which may otherwise befall him by executing the Judgement if he have a violent and malicious adversary After a Writ of Error is brought and allowed by the Court where the Judgement was given for the reversal whereof the Writ of Error is brought the hands of the Court are foreclosed that is stopped from proceeding upon the Judgement any further and there needeth no Supersedeas to be directed unto them nor is it necessary to mark the Rolle Mich. 1049. B. S. For every one ought to take notice of such general Writs as may any wayes concern them If a Writ of Error be brought to reverse a Judgement given upon a nihil dicit the bringing of this Writ of Error is a Supersedeas to stay Execution upon the Judgement notwithstanding the late Statute that enacts that a Writ of Error shall be no Supersedeas to stay Execution upon a Judgement Pasc 1651. B. S. 13. Maii. For that Statute onely extends to Judgements given upon a Verdict and not to Judgements given upon a nihil dicit or upon a non sum informatus or upon a demurrer Surprisal The Court is alwayes very cautious that no person that hath any cause depending before them be Surprised especially in such matters as are finall and penall to the party that is surprised Mich. 1649. B. S. Because by Surprisals the parties Surprised are deprived of making their full defence Setlement If one hath hired a dwelling house in one Parish and be settled in that house but a small time yet this is such a setlement in the Parish where the house is that the Justices of the Peace have no power to make an order to remove the party setled out of the Purish wherein he was so setled except the party so setled be lame or blind or likely to be suddainly chargeable to the Parish where he was so setled Mich. 1650. B. S. 11. Nov. Tryal and Proceedings to it NOtice to an under-tenant of a house or land that there is a Lease of Ejectment sealed and delivered to Try the title of the thing of which he is in possession is no good notice in respect to the upper tenant thereof or to him in reversion whose title is properly concerned and therefore if there be a Tryal and a Verdict and a Judgement in such a case where there was notice onely given to the under-tenant as aforesaid the Court upon a motion and proof of this matter will vacate such a Judgement as a fraudulent Judgement Hill 21. Car. B. r. For it is deceitfully obtained as to him in the reversion whose title is concerned in the Judgement No tryal ought to be had at the Bar the same Term that the Defendants plea is put in but the Term following by the Rules of the Court Hill 21. Car. B. r. Except it be by special rule of Court or in causes depending on the Crown side wherein the King is a party This Court will grant a Habeas Corpus to Try a Felon at the Bar although the Felony was not committed in the County of Middlesex isthere be not a Gaol Delivery in the usuall manner in the County where the Felony was committed Hill 21. Car. B. r. This is done for the expedition of Justice and that the prisoner may not lye long in prison for the Law favors liberty A Tryal in that Court where the issue Tryed was not joyned is not a good Tryal Hill 21. Car. B. r. For there was nothing before them to Try and so it was Coram non judice Where the Plaintiff will not Try his cause in such due time as he ought to do by the Rules of the Court the Defendant may upon warning given thereof to the Plaintiff proceed to the Tryal of it himself Hill 21. Car. B. r. That he may free himself from the Action that is brought against him Justices of Peace may by there Commission Try a murder committed in the County where they are Justices Pasc 22. Car. B. r. But they do not often do it but leave such matters to be Tryed by the Justice of the Gaol Delivery at the Assizes If any of the Defendants Witnesses to be used at a Tryal do live above fourty miles distant from London the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes notice of the Tryal before he Try his cause Pasc 21. Car. B. r. That the Defendant be not surprised for want of sufficient time to get his Witnesses to be at the Tryall Upon a Tryal at the Bar when the Jury is at the Bar and the Court ready and the panell of the Jurors names is delivered to the Secondary he bids the cryer call the Defendant which he doth and if his Councel say they appear then the Secondary bids both parties take heed to their challenges and then proceeds to swear the Jurors but if he do not appear after thrice calling by the Cryer the Plaintiffs Councel do pray the Court the Verdict may be taken by default Trin. 24. Car. B. r. It is called a Verdict by default because if it pass against the Defendant where the Defendant had right and might have defended himself it is not the fault of the Court or Jury but his own that would not appear and defend his cause Where a Tryal is had by provisoe the Plaintiff may be called before the Jury is sworn if the Defendant do require it Trin. 22. Car. B. r. For the Plaintiff is as it were in the place of the Defendant because the cause is brought to a Tryal by the Defendant The Court will not grant a Tryal at the bar except there be oath made that the matter to be Tryed is very difficult or of great value Mich. 22. Car. B. r. In which cases it is fit the Tryal should be at the Bar where Tryals are more solemn and where more time may be spent in the Tryal then can be at the Assizes After a Tryal hath been in a cause the Court ought not to order that there shall be a new Tryal of it except it doth appear that there was a surprisall in the Tryal had or some fraudulent miscarriage in it for if they might in any case they please order a new Tryal this would be for the Court to have an Arbitrary power which the Law will not permit Mich. 22. Car. B. r. For this would weaken the Common Laws to the prejudice of the people Where warning is given of a Tryal to the Atturney in the cause and the Atturney cannot give notice of this warning timely enough for his Clyent to prepare for the Tryal the Court will not force the Atturney to go to a Tryal but will give longer time Mich. 22. Car. B. r. Because the Court will not surprise any person and such Tryals very seldome do determine the business but beget more trouble and charges to both parties Where there ought to have been a place alleadged whence the venue should come and there
for which the Action is brought Hill 23. Car. B. r. The Court will not change the venue in an Action brought upon an obligation Hill 23. Car. B. r. Because the Action is personal and transitory and it is at the election of the party to lay it where he pleaseth yet the rules of Court for the laying of personal and transitory Actions have not been very constant of latter times but the Courts do vary as they see cause A Judgment given in an inferior Court was reversed here by a Writ of Error because the Venire was Venire facias c. and not at large Hill 1650. B. S. But such a Venire in the Common Pleas is good For the constant course there is to enter the Venire briefly with an c. The Defendant may move to alter the Venue although the Plaintiffs Declaration be not perfect Mich. 1650. 25 Oct. B. S. For though it be not perfect in all things yet it may be so perfect that he understands where the Venue is laid and that is enough to ground a motion upon to alter it if it be laid where it ought not to be In an Action of Debt brought for Rent due for Land the Venue may not be laid out of the County where the Land lies for which the Rent is due for the Action is a locall action ratione terrae out of which the rent is issuing Hill 1650. B. S. 29. Jan. A Venue cannot be laid in Wales in a transitory Action the Cause whereof did arise in England because this would be to remove the Cause to be tryed out of the jurisdiction of the Court and then this Court can give no judgment in it Trin. 23. Car. B. r. The Venue cannot be changed after the Defendant hath pleaded although the Plaintiff have amended his Plea in a principall and materiall part of it after the Defendant put in his Plea and though the Defendant do imparle by reason of that amendment for all this makes it not a new Declaration 1650. B. S. A Venire out of an inferior Court ought to runne thus Ideo praeceptum est in eadem Curia or per candem Curiam Hill 1649. B. S. 30. Jan. But now those Latine words must be in English It is not necessary to insert the Names of the Jurors in the Venire facias although it was the antient course to do it Hill 1649. B. S. 4. Feb. So that antient forms may be altered upon good reason else not Where the Declaration is good but the Plea is uncertain and yet an Issue is joyned and tryed upon it this is a mis-tryall for there can be no judgment given upon it and therefore there must be a Repleader and a new Venire to summon another Jury to try the Cause again Hill 1649. B. S. 8. Feb. A Venire facias is oftentimes retorned before the Plea be entred and yet it is well enough Pasc 1650. B. S. 24. Maii. For the Plea is a Plea before it is entred so that there is an Issue to be tryed which is a sufficient warrant for awarding and retorning of the Venire A Venue is not to be changed in an Action of Debt brought for Rent or upon an Obligation or in an Action of Covenant or in an Action of Accompt Trin. 1650. B. S. 26. Junii Mich. 1650. B. S. 23. Nov. The Venire ought to be delivered to the Sheriff four dayes before the retorn of it if the Jury do dwell forty miles off and eight dayes if they dwell further off then forty miles from the place where the tryall is to be Pasc 1651. B. S. 13. Maii. If the Defendant do move to change the Venue upon Affidavit made that the cause of Action if any be did arise either in Kent or Surrey for example and not in London where the Action is laid the Plaintiff shall have his election to lay his Action either in Kent or in Surrey upon giving the Defendant notice in which of them he will lay it but shall not lay it in London 1651. B. S. The Attorneys are sworn not to lay personall Actions in forreign Counties but in the Counties where the causes of them did arise and the Statute doth also prohibit it for the laying them in forreign Counties doth put the people to charge for motions to alter the Venues into their proper Counties and therefore it is fit the Attorneys should observe it By Rolle 1650. B. S. But as yet the practice herein is unsetled and inconstant And it may be it is not setled because there might great inconveniences grow by setling of it and tying up the hands of the Court from doing that which the exigency of the case may require Verdict If there be severall ejectors of severall parcels of Land mentioned in a Lease of Ejectment the Jury ought to finde this matter especially Hill 21. Car. B. r. A Verdict which is found against a Record is a void Verdict Hill 21. Car. B. r. For a Record is of a higher nature and more credit is to be given unto it then unto a Verdict If a Verdict may be any wayes construed to make it good there ought not to be made a construction of it to destroy it and make it void Hill 21. Car. B. r. For the Law delights in the preservation of things and would not have things to be done in vain The Court will not take a Verdict by default except the Plaintiffs Councell do pray it Hill 21. Car. B. r. For the Plaintiff may choose whether he will take the Verdict or no and therefore the Court will not take it except he desire it If the Plaintiff doth fail in proving of his Issue the Verdict ought to be found for the Defendant except the Jury do know of their own knowledg that the Defendant is guilty Hill 21. Car. B. r. So that the Jury is not so tyed up by the evidence that they must alwayes give their Verdict according to it If one of a Jury that found a Verdict were outlawed at the time when the Verdict was found the Verdict is not good but may be reversed by error Hill 21. Car. B. r. For an out lawed person is out of the protection of the Law and is debarred from intermedling with any Civil affairs as a person excommunicated is from participating in Divine Ordinances If a Verdict be found for the Plaintiff and he will not enter it if the Defendant move the Court in it they will compell him to enter it and so it is where the Plaintiff doth refuse to enter a Verdict found for him upon the executing of a Writ of enquiry of Dammages Mich. 22. Car. B. r. For the Plaintiff ought to rest satisfied with what the Law gives him Or the Defendant may enter it himself if he will A Declaration that is not good is in many cases helped after a Verdict by the Statute of Jeofailes but where the Declaration doth not make it appear that the Plaintiff had some
cause of Action to warrant his Declaration or where some material and essential part of the Declaration is omitted such Declarations are not helped by the Statute Mich. 22. Car. B. r. Hill 22. Car. B. r. If a special Verdict be drawn up contrary to the notes agreed upon by the Councel on both sides at the tryal the Court upon a motion will rectifie this if the parties cannot agree between themselves to do it or that the Councel on both sides did formerly consent to such an alteration Mich. 22. Car. B. r. If the Court do direct the Jury to finde a speciall Verdict upon the prayer of the Plaintiff or of the Defendant the party at whose prayer the special Verdict was found ought to prosecute this special Verdict that the matter in Law in it may be determined Mich. 22. Car. B. r. Because the Verdict was directed to be so found in his favour Where the Court doth direct the Jury to finde a special Verdict one of the Councel on both parts are to agree upon the notes for it and to draw them up and to set their hands to them and to deliver them in unto the Jury in convenient time or else the Court will take a general Verdict Mich. 22. Car. B. r. The Chief Justice may in some special case take a Verdict out of Court but then the Verdict must afterwards be pronounced in Court Mich. 22. Car. B. r. If a matter in fact be left out in the notes drawn up by the Councel of the special Verdict found by the Jury this cannot be amended afterwards though the Court be moved in it and although the Councel on both sides do consent Mich 22. Car. B. r. For this were for the Court and Councel to make a new Verdict against the finding of the Jury who have found the matter of Fact already If one of the parties whom a special Verdict doth concern will not joyn with the other in prosecuting of the special Verdict the Court upon a motion will order him to joyn in it and if the Verdict be made up and the party will not bring it in to be entred and proceeded in the Court will grant an Attachment against the party Mich. 22. Car. B. r. The Plaintiff and Defendant ought both of them to appear in Court to hear a special Verdict and the Jury is to be called and to have the special Verdict read unto them by the Secondary and upon the reading of it if there be any mistake in the penning of it the Councel on either side hath liberty to except against it and when the Councel is agreed then the Secondary demands of the Jury whether they agree to find it so and if they answer they do then the Verdict is found Pasc 23. Car. B. r. If the Jury will find against the directions of the Court any thing in matter of Law the Court will not receive the Verdict but compell them to find as the Law requires Pasc 23. Car. B. r. For the Court is judge of matters in Law as the Jury is of matters of fact If in an Action upon the Case brought for speaking of scandalous words the Jury do find that the Defendant did speak words which are Actionable against the Plaintiff and so give a Verdict for the Plaintiff and it appears that the words found are not expressed in the Declaration this is not a good Verdict if there be not other words found which are in the Declaration which are actionable Trin 23. Car. B. r. For the words in the Declaration are onely put in issue to the Jury A special Verdict after the notes are agreed upon by the Conncel and drawn up and their hands set unto them is not a special Verdict untill it is allowed by the Court Mich. 23. Car. B. r. For they are to judge whether the matter in question be rightly stated or not Where a Verdict is imperfectly found by the Jury there the Defendant is not to move upon it in arrest of Judgement for there cannot be any Judgement given upon such a Verdict and by consequence the motion is needless but in such case there ought to be a new venire to summon a new Jury to try the cause again Mich. 23. Car. B. r. Where a special Verdict is imperfectly drawn up and entred the Judges will not argue the matter in Law for there can be no Judgement given in the cause by reason that the Verdict is not good but in such a case there must be a new venire that a new Verdict may be found Hill 23. Car. B. r. Mich. 1649. B. S. 13. Nov. A cause depending in Court upon matter in Law found by a special Verdict ought not by the ancient practice of the Court to be read in Court as a Record untill books thereof be given unto the Judges of the Court and so is the use in the Exchequer at this day Pasc 24. Car. B. r. That the Judges may have sufficient time to consider of and to speak to the matter in Law A misdemeanor of the Jury before they give their Verdict is not a sufficient cause to make voide the Verdict Pasc 24. Car. B. r. Although they are punishable for it If a Verdict be given where there is no issue joyned this is a Jeofaile and there can be no Judgement given upon such a Verdict but there must be a repleader to bring the matter to a tryal Pasc 24. Car. B. r. For there was nothing tryed before for want of an issue joyned A special Verdict ought to be prepared by Councel and delivered to the Jury to consider of before they deliver their Verdict in private to the Judge and not the next morning when the Jury come to deliver their Verdict openly in Court Pasc 1650. B. S. 2. Maii. For then the Court cannot expect till they consider of it In criminal causes if there be any errors in the proceedings they are not helped after a Verdict by the Statute of Jeofailes Pasc 1651. B. S. 11. Mati For the Statute montions not criminal matters and it shall not be extended to equity because it is in abridgment of the practice of the Common Law Although the Court do bid the Secondary Record a non sute yet if be not Recorded the Court may take the Verdict afterwards Trin. 1651. B. S. For the non-sute is no non-sute before it be recorded If the Plaintiff and the Defendant do consent to have the Jury find a special Verdict the Jury ought not to refuse to finde it Trin. 1652. B. S. Q. A Verdict by default is found in this manner in an Action of Trespass and ejectment When the Jury is ready at the Bar to try the cause the Secondary bids the Cryer call the Defendant which he doth thrice and if he do not appear the Plaintiffs Councel do pray the Court to take the enquest by default thereupon the Jury is sworn and the Record is read unto them then the Plaintiffs Councel do
of Action did first arise Mich. 22. Car. B. r. Transitory Actions ought not to be brought within Corporations for their priviledges do properly and onely extend for the tryal of such Actions the causes whereof do arise within their own jurisdictions Mich. 22. Car. B. r. Either an Action upon the Case or an Action of Detinue at the Election of the Plaintiff may be brought for goods detained from him 22. Car. B. r. An Action of Trover and Conversion is in its nature but an Action upon the Case to recover dammages Mich. 22. Car. B. r. An Action upon the Case doth lye by the Statute against the Court of Admiralty for holding Plea of a matter which is not within their jurisdiction Mich. 22. Car. B. r. Where a promise is made by a Fem Covert or by a Servant for the Husband or the Master the Action for breach of this promise ought to be brought against the Husband or the Master for it is their promise and the Wife and the Servant are but instruments Mich. 22. Car. B. r. An Action upon the Case doth lye against one for speaking such words falsly and maliciously of another as if they were truly spoken of the party he might be punished as a Felon or by some Statute fined or imprisoned Mich. 22. Car. B. r. as for calling him Theef c. There is a difference betwixt bringing of an Action and the laying of Action Mich. 22. Car. B. r. It is cause sufficient to ground an Action upon the Case for one to put another to the trouble and charges to Sue for that which is his own Mich. 22. Car. B. r. The cause for bringing an Action upon the Case for the speaking of words against one is the temporal loss or dammage which may accrew to the party against whom they are spoken by the speaking of them and not the words themselves Mich. 22. Car. B. r. An Action upon the Case doth lye for speaking of words against a man by reason of which he lost his marriage Mich. 22. Car. B. r. An Action upon the Case doth not lie for Arrerages of Rent due upon a Lease for yeers because the Law gives a proper Action for it to wit an Action of Debt Mich. 22. Car. B. r. Upon a promise made upon an insimul computaverunt the party to whom the promise is made may either have an Action of Debt or an Action upon the Case at his Election for the thing which was before in dispute and uncertain is by the account and promise reduced to a certainty Mich. 22. Car. B. r. For a Debt certain referred amongst other things to an Arbitration an Action of Debt doth not lye but an Action upon the Case Mich. 22. Car. B. r. It is not safe to be too particular or over curious in the laying of an Action for it is often times a cause that the Action doth fail Hill 22. Car. B. r. An Action upon the Case lies for calling one Whore in London but this is by the special custome of the City Hill 22. Car. B. r. yet 24. Car. Pasc The Court was divided in opinion in this question whether an Action doth lye or not An Action upon the Case lies for a private nusance but not for a publike Rasc 23. Car. B. r. An Action upon the Case doth lie for scandal or for molestation Pasc 23. Car. B. r. Where a Joynt Action doth lie against divers persons of whom some are known to the Plantiff and the rest are not known unto him the Action may be brought against them that are known by their particular names and against them that are not known generally with a Simul cum aliis c. Pasc 23. Car. B. r. In a tryal upon a Trespas and Ejectment or a Replevin touching the title of the Land in question although the Verdict pass against the Plaintiff yet he may bring a new Action for the same Land for such tryals are not final Pasc 23. Car. B. r. because the Land is not recovered in them but the possession In a Case betwixt one Nichols and Webb in the Common Pleas for calling the Plaintiff being an Atturney at Law Knave a Verdict and judgement was given for him and this judgement being afterwards remoyed by a Writ of Error into this Court the Judgement was affirmed in Trin. 12. Car. Rot. 102. Pasc 23. Car. B. r. An Action brought for Rent or breach of Covenant upon a Lease may be laid either in the County where the Lease was made or in the County where the Lands do lie that are let by the Lease Pasc 23. Car. B. r. Vexatious Actions are not favoured in Law nor by the Court but may be referred to the Master of the Office to consider of them Trin. 23. Car. B. r. A violent intendment may bring one within the compass of an Action Mich. 23. Car. B. r. by Rolle One may in some Case bring an Action at the Common Law for that for which he may also have his remedy in the Eclesiastical Court for the Common Law is to be preferred before the Eclesiastical Law where they stand in equal degree in respect of the matter to be tryed Mich. 23. Car. B. r. By a special custome an Action doth lie in some Cases in which at the Common Law no Action doth lie and so was it adjudged 8. and 13. Car. Mich. 23. Car. B. r. The Kings Charter cannot enable the Pattentee to bring an Action which the Common Law allows not Mich. 23. Car. B. r. If one bring an Action upon the Case for divers words spoken whereof some are Actionable and some of them are not yet the Action lies Trin. 24. Car. B. r. The Husband may bring an Action alone for scandalous words spoken against him and his Wife and recover and yet may afterwards bring another Action for to recover dammages done to his Wife by the speaking of the same words Trin. 24. Car. B. r. for the Husband and Wife are both particularly damnified by the speaking of the words An Action upon the Case doth not lie upon a contract which sounds in the realty Q. if the contract be mixt with other matters which are not in the realty whether it will then lie or no Mich. 24. Car. B. r. If one take out a Latitat within the time limited by the Statute for the limitation of Actions it is a good bringing of the Action in due time and he is not barred by the Statute although he do no declare against the party within the time limited by the Statute Mich. 1649 B. S. An Action of the Case doth lie against one that doth Arrest another without cause Pasc 1650. 6. Maii B. S. One may have an Action upon the Case against a Witness that is served with a Subpoena to appear at a tryal and doth not appear but by the Statute Pasc 1650. B. S. 18. Maii 13. Nov. A Joint Action of the Case doth not lie against two several persons for
speaking the same scandalous words for the words of one are not the words of the other but they must be severally spoken and consequenly several Actions ought to be brought against them but a Joynt Endictment doth lie in such a Case 27. Jan. 1650. B. S. So ruled by the Court. One may joyn two Debts due upon two several Obligations in one Action and so it is of other personal Actions but it cannot be done in real Actions 6. Feb. 1650. B. Sup. If a Carriers servant or his son conspire to rob the Carrier and do rob him the Carrier not being privy to the conspiracy an Action will lie for the Carrier against the Hundred where he was robbed upon the Statute of Winchester but this matter may be urged to the Jury upon the tryal in mitigation of dammages by Rolle Chief Justice Amendment Original Writs are not amendable at the Common Law for if the Writ be not good the party may have another Hill 22. Car. B. r. The leaving out of the Atturneys name in the Imparlance Roll is Amendable upon a motion made to the Court to have leave to do it but not without leave of the Court so that the Atturnys name be not left out in the Issue Roll for then it is not Amendable Hill 21. Car. B. r. If in a Replevin the Avowant do amend his Avowry before the Term and do pay costs the Plaintiff ought to reply the next Term following but if he pay not costs he is not bound to reply the next Term. 21. Car. B. r. Any fault in pleading which would be Amendable if the cause were depending in an inferior Court may be amended where the cause depends in a superior Court but not è contra 21. Car. B. r. Where two several persons joyn in one Declaration and one of them dye depending the Sute the Declaration cannot be Amended but the other party that survives must have a new Writ for there is great difference betwixt a Joynt Action and a several Trin. 22. Car. B. r. A Plea may be amended upon giving of notice thereof to the other party and paying of costs if the Plea be only entered in Paper but if it be entred in Parchment it cannot be amended for then it is a Plea upon Record Mich. 22. Car. B. r. The Court of the Kings Bench will not Amend a Transcript of a Record removed thither by a Writ of Error out of an inferior Court but they will Amend a Record removed thither out of the Common Pleas if they see cause Mich. 22. Car. B. r. If the Plaintiff desire to alter his Declaration it is in election of the Defendant to take costs of the Plaintiff and to let him amend his Declaration or to refuse to take his costs and to Imparle to the next Term. 22 Bar. B. r. and 1650. B. S. A Return upon a Habeas Corpus or upon a Certiorari to remove Orders of Sessions of the Peace c. cannot be Amended the Term after the Return is made but it may be Amended the same Term in which it is made Hill 23. Car. B. r. The Clerk of the Peace may Amend an Endictment removed into this Court at any time during the Term in which it came in here but afterwards it cannot be Amended Hill 23. Car. B. r. The Plaintiff may Amend his Declaration though it be seven years past since he Declared if it be but in Paper Hill 23. Car. B. r. If the Plea Roll be rightly entred though the Postea be mistaken in the transcribing of it yet the Postea may be amended Paso 24. Car. B. r. A Declaration grounded upon an Original Writ if it be erroneous cannot be amended but if it be upon a Latitat or Bill of Middlesex it may be amended Pasc 24. Car. B. r. If a Transcript of a Record removed out of the Common Pleas into this Court be to be Amended here the Clerk in the Common Pleas is to bring in the Original Record out of the Common Pleas into this Court that the Transcript may be here Amended by the Record it self Trin. 24. Car. B. r. The Clerk of the Assizes may Amend the Postea by his Notes if he be mistaken after that he hath returned it into this Court Trin. 24. Car. B. r. An Indictment removed into this Court may be amended the same Term it came in but not afterwards but upon some extraordinary matter Pasc 24. Car. B. r. After the parties have joyned in Demurrer the Demurrer may be Amended if it be but in Paper Pasc 24. Car. B. r. A Postea may be Amended by the Record in such things whereby the Amendment may not bring the Jury within the Compass of an Attaint Trin. 24. Car. B. r. A Record may be Amended in a small matter after Issue joyned so that thereby the Plea be not altred Trin. 24. Car. B. r. A Record may not be altred by the consent of the Atturneys on both sides without a Rule of the Court and if it be if the party grieved thereby will inform the Court of it the Court will order to make the Record as it was before the Amendment and will punish the Atturneys 3 July 1650. B. S. If the Plaintiff Amend his Declaration though it be by Rule of the Court yet the Defendant may plead do nove The Imparlance Roll cannot be Amended by the Plea Roll but the Plea Roll may be Amended by the Imparlance Roll Mich. 22. Car. B. r. The Court Amends false Latine forme in Bills presented unto them by the grand Enquests by their consents but they may not alter matters of substance in them Mich. 22. Car. B. r. The Plaintiff may Amend his Declaration after the Defendant hath pleaded to it paying costs if it be not entred but if he do Amend it the Defendant may also after his Plea if he will Mich. 22. Car. B. r. And Issue entred upon Record may upon leave by the Court be Amended in a small matter but not in a material thing or in that which will deface the Record Hill 22 Car. B. r. An Original Writ cannot be Amended because the party may take out another Writ Hill 22. Car. B. r. A thing that is Amendable by Statute may be Amended in an upper Court before it be Amended in the inferior Court if the matter be apparent and needs no examination Hill 22. Car. B. r. An Error in the Postea may be Amended but not in the Plea Roll Hill 23. Car. B. r. A Plea cannot be Amended after the Plea is Demurred unto not after Issue joyned Mich. 24. Car. B. r. yet if the Demurrer be but in Paper though it be two or three Terms after the Plea was Demurred unto the Demurrer may be Amended if the party Demurring will pay costs though the other party have joyned in Demurrer 21. Nov. 1650. B. S. A Return of a Habeus Corpus may be Amended in matter of form onely the same Term the Return was made but not
For then the Defendant is to go only upon common Bail If the Plaintiffs Atturney do onely tell the Defendants Atturney that his Clyent is to put in special Bail it is sufficient and there common Bail is not to be admitted although the Roll be not marked for special Bail 3. Feb. 1650 B. S. For the notice that there ought to be special Bail is the thing required and the marking of the Roll is but to give notice If one that lies in Execution do bring his Audita Querela he is Bailable 7. Feb. 1650 B. S. So held in Trittons Case By a Rule of the Court the Plaintiffs Atturney must receive the Bail given before the Judge from the Judge himself the same Term it was put in upon pain of five shillings 21. Feb. 1650 B. S. When one becomes Bail for another in an Action of Debt he doth in Law assume or take upon him to render the body of the Principal if he be condemned or else to pay the Debt he is condemned in Pasc 1652. per Rolle B. S. Untill a Capias be Returned against the Principal the Bail shall not forfeit his Recognizance for the principals not appearance by the Ancient course of the Court but at this day by the indulgence of the Court he shall not forfeit his Recognizance if the Principal come in at any time before the Return of the second Scire Facias against the Bail Trin. 1652. B. S. If one be sued in this Court for twenty pounds or above the Plaintiff may by the course of the Court require special Bail but if he sued for a less some common Bail must be accepted Per Barrell Clerk there Special Bail is not generally to be given in an Action of Battery yet in some such cases the Court will compell the Defendant to put in special Bail viz where they perceive it was a foul Battery and much dammage done by it else an Action of Battery is thought a slight Action and not worthy of special Bail If there be no Writ in the Roll nor any notice given for special Bail and common Bail is filed the Plaintiff cannot by the course of the Court require special Baile By Rolle Chief Justice Bail is not to be accounted Bail properly until it be filed for then and not before it is upon Record By Rolle Chief Justice If the Defendant put in Bail before a Judge and it is allowed and yet he will not file it the Plaintiff may if he will at his own charge file it By Rolle Chief Justice Pasc 1655. To avoid Error If Bail be taken by the Judge de bene esse the Plaintiff ought by the Rules of the Court either to allow the Bail or to shew cause to the contrary By Rolle The sufficiency or non sufficiency of Bail ought to be first exaimed by the judge at his Chamber before the Court is to be troubled with the matter but if the Judge cannot make the Plaintiff and Defendant agree in the giving and taking of the Bail then the Court is to be moved in it whereupon they will order both parties to attend and the Bail also and will examine the cause of Action and the Bails sufficiency and settle the matters in difference according to reason By Rolle Chief Justice The cause of marking the Roll for special Bail in this Court is because the cause of Action doth not appear upon the Latitat by which the party was Arrested but it is to be made appear by the Declaration By Glyn Chief Justice But in the Common Pleas where they proceed upon an Original the cause of Action doth appear Burglary Burglary may be committed by one though he do not break a house open for if he be within the house and steal away the goods in the house and open the door on the inside and go out and carry away the goods this is Burglary 22. Car. Trin. B. r. Bankrupt He that is a Bankrupt to one Creditor is accounted in Law to be a Bankrupt to all 22. Car. B. r. He that is once adjudged to be a Bankrupt is to be alwayes accounted to be a Bankrupt 22. Car. B. r. If one shall with an intent to support the credit of a Bankrupt suffer him to have his goods in his custody and to dispose of them the property of these goods shall be accounted to be in the Bankrupt and the true owner of the goods shall lose the property in them 18. Ap 1501. B. Sup. As a punishment for his false dealing herein and of the mischiefs which may grow by such devises to evade the Laws Bench. Where one brings an Action for a Covenant broken he ought to Assign the breach of it in such manner that the Defendant may justifie or take an Issue Hill 22. Car. B. r. Else the party can make no defence for himself If one bring an Action of Covenant against another for not repairing houses c. demised unto him he ought to Assign particularly wherein the want of reparations do consist and not to declare generally Hill 22. Car. B. r. For reparations do consist of particulars If an Action of Debt be brought upon an Obligation for breach of the condition thereof the Plaintiff is not to Assign in what the breach is untill the Defendant hath pleaded performance of the condition Hill 22. Car. B. r. Baliff A Bailiff may execute a Writ out of the Hundred where he is Bailiff Pasc 23. Car. B. r. For he is Bailiff all the County over if he be the Sheriffs Bailiff and not a Bailiff of some Liberty within the County A Bailiff is a servant or minister of the Law and by consequence he is a servant to the party at whose Suite he is to Arrest any one Pasc 24. Car. B. r. A Sheriffs Bailiff is not an Officer of the Court but the Sheriff himself is the Officer that the Court takes notice of Pasc 24. Car. B. r. Bargain and Sale A Bargain and Sale made by one who is not in possession though it be by Deed inrolled is not good if there be no Livery made thereupon Mich. 23. Car. B. r. If one buy a thing of another he that buyes it ought to pay the money he hath agreed to pay for it before the seller of it is bound to deliver it Pasc 23. Car. B. r. One may upon a good consideration dissolve by Paroll onely an absolute Bargain Pas 24. Car. B. r. One may sell his priviledge given him by the Law as his birthright as a freeborn subject for a good consideration Trin. 24. Car. B. r. If one that is indebted do really and bona fide sell his Lands though it be with an intent to avoid the paiment of his Debts this sale is good if the Vendee be not privy to his intent Mich. 24. Car. B. r. If one Bargain and Sell Lands of which another is in possession and claims title to them this Bargain and Sale is not good Trin 1651. B. S. Because
alter the Taxes if they see cause Taxes ought not to be Taxed untill the Atturneys on both sides be heard for their Clyents before the Secondary Mich. 22. Car. B. r. Except it be where either of the Atturneys doth neglect to appear before the Secondary having notice thereof If an Endictment taken in any County be removed by Certiorary into the Kings Bench and the Court be moved that it may be sent back again into the County where it was taken and if the Court upon good cause shewed doe order it accordingly it shall be removed back again at his costs who dedesires it to be removed Mich. 22. Car. B. r. For it shall be intended that the removing of it is for his benefit and ease When upon a tryall the plaintiff becomes non-suit the Defendant must pay the Jury their Costs Mich. 22. Car. B. r. For it is intended he receiveth benefit by the non-suit If there be any such fault in the entring of a speciall verdict so that it must be amended the Plaintiff or Defendant who was the occasion of making the fault must pay the Costs for the amending it Mich. 22. Car. B. r. if it be such a fault that Costs must be expended to amend it If a tryall at the Barr be put off in favour of the Plaintiff or the Defendant and the party that was not the cause of putting it off be compelled by putting it off to keep his Witnesses in Town he that caused the tryall to be put off shall pay such Costs for keeping them in Town as shall be taxed by the Secondary Hill 22. Car. B. r. If one will give leave to another to sue in his Name he that grants the leave shall pay the Costs of the suit Hill 22. Car. B. r. For he is the person upon record of whom the Law takes notice of and the Court takes no notice of the agreement between the parties Costs are not to be allowed for unreasonable motions but only for such as the party was necessarily put unto by the course of the Court. 22. Car. B. r. Arbitrators are to make the Writings touching their arb trement at their own proper Costs and ought not to award that the parties that submitted to the award shall pay for them Pasc 23. Car. B. r. Where the Judges of the Court doe desire to have Books of the Cause depending before them to be advised of the matter in Law the better by considering of the pleadings the Plaintiff and the Defendant ought to joyn in the Costs for the copying of the Books to be delivered to them Trin. 23. Car. B. r. It is the course of the Court to refer the taxing of the Costs to the Secondary of the Office and not to make any speciall rules for such matters Mich. 23. Car. B. r. No Costs are to be allowed upon a Repleader Mich. 23. Car. B. r. For both the parties were in fault to suffer such an insufficient issue to be joyned It is not necessary that the Jury should give Costs but they may leave it to the Court to doe it Mich. 23. B. r. Upon a Judgment upon a Nihil dicit in the Common Pleas that Court will give Costs and dammages generally Trin. 24. Car. B. r. If there be a speciall verdict found in a Replevin the Costs and dammages shall be given either against the replevyer or against the avowant as the issue shall be found for or against them Pasc 24. Car. B. r. The Court will not order any thing concerning the encreasing or mitigation of Costs but the parties are to attend the secondary in it and to abide by his order 13. Nov. 1650. B. S. Except it be in extraordinary Cases If a Juror appear upon a tryall which is to be at the barr and the Jury is adjourned and he doth not again appear at the day of adjournment he shall have no Charges allowed him for his former appearance 2. May 1651. B. S. Chancery A Master of the Chancery hath not power to take an Oath but in a Cause which is depending in the Court of Chancery 21. Car. B. r. The Chancery is not a fixt Court neither in respect of the place where it sits nor of the time when they may sit for they may sit out of the Terme and what place they please 12. Nov. 1650. B. S. By Rolle Chief Justice Capias A Capias duely sued out may be filed afterwards 21. Car. B. r. Challenge When the Jury appear at a Tryall before the Secondary calls them particularly by Name upon the panel to be sworne he bids the Plaintiff and Defendant to attend their Challenges 21. Car. B. r. It is not a sufficient cause to Challenge a Juror because he had delivered his opinion touching the title of the Land in question Pasc 23. Car. B. r. Q. tamen If one take a principall Challenge against a Juror he cannot afterwards Challenge that Juror for favour and waive his former Challenge Pasc 23. Car. B. r. If the Defendant doe not appear at the Tryall when he is called he loseth his Challenge to the Jurors although he doe afterwards appear Mich. 23. Car. B. r. If one Challenge a Juror and doe not make his Challenge good and after the Jury is adjourned he shall not Challenge that Juror again at another day except it be for some matter which is hapned since the adjournment Mich. 23. Car. B. r. If one Challenge a Juror he cannot afterwards have him to be sworne if the Secondary have entred the Challenge Pasc 24. Car. B. r. Q. Whether he may have him sworne if the Challenge be not entred It is a good Challenge against a Juror to say that he was a Juror in a former tryall for the same Land in question and upon the same title though the tryall was between other parties Mich. 24. Car. B. r. When the Array that is the whole Jury is Challenged the Councell of the party that makes the Challenge must read his Challenge in French and after he hath so read it it is to be delivered to the Secondary who is to read it in Latine 6. Nov. 1650. B. S. Which was then done in a Challenge for want of Hundreders But now by the late Statute this is to be done in English After the fore-man of the Jury is sworne the Array cannot be Challenged 6. Nov. 1650. B. S. For then it is too late for to Challenge the Array is to Challenge the whole Jury A Challenge to a Juror for favour is not accounted to be a principal Challenge If some of the Jury be Challenged for favour they shall be tried by the rest of the Jury their companions upon their Oathes whether they be indifferent to try the matter in question or not without going from the barre when they have heard all the evidence that is given against them by the Councel of the party that takes the Challenge 1655. B. S. In a Case tryed at the Barr between the Earl of Leicester and
by my acceptance of the rent I have assented to his entry Distress and Distringas The seising of a stray is not a Distress of it for he that doth seise it claims a property in it 21. Car. B. r. And no man can Distrain that which is his own for to Distrain is but to take one thing from another and to put it into the custody of the Law as a pledge for another thing which is due to him that doth Distrain from him that is distrained An amercement lies not against a Sheriff out of his Office for a misdemeanour done by him whilst he was in his Office but a Distringas nuper Vicecomiti lies against him for it Pasc 24. Car. B. r. The Writ of Venire facias for the Sheriff to summon a Jury is retornable by him into the Court and upon the retorne made of it by him there issues out of the Court another Writ called a Distringas Juratores to cause the Jury to appear in Court at the tryal of the Cause if the tryal be at the Barr in this Court or at the Assises in the County where the Action lies if the tryal be to be there Mich. 24. Car. B. r. The Writ of Distringas Jurators ought to be delivered unto the Sheriff so timely that he may warn the Jury to appear four dayes before the Writ is retornable if the Jurors live within fourty miles of the place of tryal and eight dayes if they live further off 13. May. 1651. B. S. Discontinuance A Discontinuance in process is helped if there follow a verdict in the cause and the party do also appear upon the verdict 21. Car. B. r. Q. Whether every discontinuance of process may be thus helped Where a Vouchee may be essoigned and the essoigne is not adjourned this is a Discontinuance but where it is not necessary the vouchee should be essoigned there the want of adjournment of the essoigne makes no Discontinuance Hill 22. Car. B. r. An appeal may as well be Discontinued by the defect of the process or proceeding in it as it may be by insufficiency of the original Writ Hill 22. Car. B. r. The Plaintiff cannot Discontinue his Action after a generall verdict found against him nor after a special verdict is found upon matter of Law arising upon the evidence given at the tryal in the cause 22. Car. B. r. The Plaintiff may Discontinue his Action by the leave of the Court after he hath joyned in demurrer with the Defendant paying Costs to the Defendant if the demurrer was only upon matter of form in the pleading But if the demurrer was as well upon matter of substance as upon matter of form there he cannot Discontinue his Action by leave of the Court Mich. 24. Car. B. r. Except the Defendant will consent unto it A discontinuance of an Action or Suit is not a perfect Discontinuance untill it be entred upon the Roll but if this Discontinuance be to be pleaded it is not necessary to plead the entry of it Trin. 23. Car. B. r. Where a Demurrer is a generall Demurrer whereas it ought to have been a speciall Demurrer this is a Discontinuance and there can be no judgment given in the case upon such a Demurrer Hill 23. Car. B. r. After a Demurrer upon an Arbitration pleaded it is not usual to Discontinue the Action Mich 24 Car. B. r. Demand Where there is a Demand of a thing to be made there the Demand must be a Legal Demand that is it must be made in such manner as the Law requires otherwise he that made the Demand can take no advantage in Law upon this Demand Hill 21. Car. B. r. If there be no place expressed in a Deed where a rent for Land or a nomine poenae or any other thing demandable shall be made the Law doth then direct that the Demand shall be made upon the Land c. out of which the rent or nomine poenae or other thing demandable do issue or go out of Hill 21. Car. B. r. A Demand of a rent reserved upon a Lease made of a Messuage with Lands belonging to it ought to be made at the Messuage because the Messuage is the most eminent part and place of the thing let and most notorious for the Lessee to take the best notice of the Demand 21. Car. B. r. For the Lessee shall be presumed to be more conversant there then in any other place Yet if the Demand were made upon any part of the Land and the Lessor can prove that the Lessee was there and took notice of it I suppose it is a good Demand but if he were not there when the Demand was made Q. whethâ—r it be a good Demand The parties bringing of an Action of Debt for monies due upon an Obligation and the taking of a distress for rent by him unto whom the rent is due is a good Demand in Law of the Debt due by the Obligation and of the rent Trin. 22. Car. B. R. A Demand in a precipe to recover Lands ought to be more certain than a Demand in a Writ of Dowr 18. Nov. 1650. B. S. For Dowr is one of the things favoured in Law Declaration A Declaration may be against one that is in custody of the Marshall of this Court upon an information although he do not appear to an Action Hill 21. Car. B. R. The Plaintiff is not compellable to file his Declararation yet if it be not filed and afterwards judgment is given in the Cause the judgment is erroneous for want of a Declaration Hill 21. Car. B. R. For before it is filed it is not upon record and so there is no Declaration to warrant the judgment If the Plaintiffs Attorney do file a Declaration against the Defendant in the Kings Bench Office the Defendant is bound to take notice of the Declaration at his peril 21. Car. B. r. A Declaration ought not to vary or differ from the Plaint that is the Cause which the Plaintiff doth express in his Writ why he brings his Writ 21. Car. B. r. For the Writ is the ground of the Declaration and that which warrants it If the Plaintiff declare against the Defendant upon a corrupt Contract made against the Statute of 21. Jac. made against Usury he must express in the Declaration that the Defendant corrupte agreavit or else he must shew that the Contract was made pro usura contrary to the Statute 21. Car. B. r. For he must pursue the words of the Statute One may not Declare against one that is in the Kings Bench prison that is not either in custodia Mareschalli or that hath not filed his bail or that is not a priviledged person in this Court 21. Car. B. r. If one be in custody of the Marescall of this Court at the suit of J. S or have put in bail in this Court to the Action of J. S any other person may put in a Declaration against him the same Terme he
was committed in custody or did put in bail as aforesaid 21. Car B. r. If the Plaintiffs Attorney deliver a Declaration to the Defendants Attorney and after doth amend his Declaration and tenders another Copy to the Defendants Attorney viz. as he hath amended it the Defendants Attorney is not bound to receive it except the Master of the Office do order him to receive it or that the matter be moved in Court and thereupon the Court do order him to receive it Mich. 22. Car. B. r. The Plaintiff in this Court is not bound by the Law to Declare against the Defendant within three Termes next after his apparance in Court to the Plaintiffs Action but if he do not declare against him in three Termes next after the Plaintiff must then take common bail of him Mich. 22. Car. B. r. and Mich. 1650. B. S. For it shall be presumed if there had been cause for speciall bail the Plaintiff would not have been so dilatory in his proceedings and besides the Defendants imprisonment is made longer by the Plaintiffs delay and is considerable A Declaration must be certain and the Court is not to take things in it by implication and also if it be not certain the Defendant cannot make a direct answer unto it Mich. 22. Car. B. r. and Pasc 24. Car. B. r. As he ought to do The Plaintiff is to enter his Declaration in the Office and all Copies which are made of it and the record it self of the Cause ought to be directed and warranted by it 22. Car. B. r. If an Action upon the Case be brought upon an Assumpsit the Plaintiff must declare upon the whole promise made and not upon part of it else the Declaration is not good Mich. 22. Car. B. r. Where the Plaintiff doth declare upon a Will or upon Letters of Administration he ought to set forth the Probate of the Will and the Letters of Administration granted unto him in his Declaration otherwisy the Declaration is not good but the Defendant may demurre upon it Mich. 22. Car. B. r. For without shewing them they do not entitle themselves to the Action brought nor make themselves persons enabled by Law to bring the Action If a Declaration be defective in matter of form only and the Defendant doth take no exception against it but pleads to issue and a verdict is thereupon found for the Plaintiff the Defendant cannot afterwards take advantage of this defect in the Declaration for the defect is helped by the verdict but if the Declaration be insufficient in matter of substance the verdict will not help it but the Plaintiff may take advantage of the insufficiency of it after a verdict Mich. 22. Car. B. r. All matters which do lye in the cognisance of the Court ought to be set forth certainly in a Declaration but it is not necessary to set forth certainly matters of fact which are tryable by the Jury Hill 22. Car. B. r. If the Plaintiffs Attorney cannot finde the Defendants Attorney to deliver a Declaration unto him he may deliver the Declaration into the Office and that shall be accounted a good delivery of it so that if the Defendant do not plead according to the Rules of the Court judgment may be entred against him Pasc 23. Car. B. r. For it is intended that Attorneys ought to attend in the Office and there to inform themselves in the proceedings of their Clyents Causes Q. Whether if he can finde him whether he must deliver the Declaration unto him for the Court held he need not but Hodsden the Secondary held the contrary A thing that is good and warrantable to be put in a Writ is good and warrantable in a Declaration Trin. 23. B. r. For the Declaration is grounded upon and warranted by the Writ If there be words in a Declaration which have no signification the words shall be adjudged to be void words and shall not hurt the Declaration but the Declaration shall be taken as if those words were left out of the Declaration Hill 23. Car. B. r. Pasc 24. Car. B. r. A Declaration in English is not good for all pleadings in Law ought by the Statute to be in Latine Pasc 24. Car. B. r. But this is now altred by a late Statute which doth exact that all proceedings in Law shall be in English An Audita quaerela and a Scir facias are in the nature of a Declaration Pasc 24. Car. B. r. For they do set forth at large the cause of the Plaintiffs Action Declarations which are grounded upon originall Writs as all Declarations in the Court of Common Pleas are if they be faulty they cannot be amended but Declarations grounded upon a Bill as the Declarations in the Court of the Kings Bench are are amendable if they be faulty Pasc 24. Car. B. r. If a Declaration be drawn in one Terme but is not delivered to the Defendants Attorney that Terme but is delivered unto him before the first Essoine day of the next Terme after this shall be accounted for a Declaration of that Terme when it was drawn and not of that Terme when it was delivered Trin. 24. Car. B. r. For before the Essoine day the Terme as to such purposes is not said to be begun A Declaration may be filed in the Office many years after it was first drawn if it appear that it was onely the Attorneys neglect that it was not filed as it ought to have been 24. Car. B. r. 19. Apr. 1648. B. r. If bail be filed for the Defendant the Plaintiff may declare against him in any other matter besides the matter that is contained in the Writ brought by the Plaintiff against the Defendant Mich. 24. Car. B. r. The Defendants Attorney is not bound to receive a Declaration against his Clyent in the vacation time Mich. 1650. B. S. For proceedings in Law ought to be in the Term time A Declaration delivered with a Ly lo is in the language and meaning of Attorneys such a Declaration that is delivered with leave for the Defendant to emparle untill the next Term. Hill 1649. 12. Feb B. S. The words by Ly lo do mean Licentia inter loquendi which is as much as leave to emparle or to advise and speak with his Clyent to know what he should plead for him When one is arrested by a Latitat or Bill of Middlesex out of this Court he is not said to be in custody of the Marshall untill he hath put in bail to the Plaintiffs Action and the bail be filled and if from that time the Plaintiff do not declare against the Defendant in three whole Termes after which he cannot be compelled to do then he must accept of common bail and discharge the former bail Trin. 1650. B. S. The Plaintiffs Attorney is not bound to give a Copy of the Declaration against the Defendant to the Defendants Attorney 13. Novem. 1650. B. S. For the Defendants Attorney may take a Copy of it out of the
possession out of his possession of it for the Law doth not countenance fraud If divers persons come together upon the Land in question next after the Ejectment Lease to try the title of the Land is Sealed and Delivered it is in the election of the Plaintiff that intends to try the title to bring his Action against which of them he pleaseth 1650. B. S. For if the Plaintiff have right they be all Trespassors and it is no wrong to bring the Action against any of them If a Lease of Ejectment be made to one to try a title of a house and the Lessee to whom the Lease is made go into the Entry of the house to make his Entry by vertue of the Lease and one that is in the house shut an inner door of the house and keep the Lessee out of an inner room of the house this is not an Ejectment nor is that person such an Ejector as an Action may be brought against Mich. 1650. B. S. For when he is entred in at the door of the house he is in possession of the house and is not Ejected out of it though he have not possession of the whole house An ejectione firmae doth not lie of a close of land without expressing either the name or the nature of the Land Hill 1649. 30. Jan. B. S. Because it is not known certainly what is meant by a Close without some description of it either by its name or nature It was then said an ejectione firmae doth lye of a Croft of Land sed Q for it was formerly doubted If one Seal a Lease of Ejectment and do thereupon give his Lesse possession of the Lands let and the Lessee is not ejected at that time the Lessee may enter into the Lands again at another time and if the Lessee be then Ejected he may bring an Action of Trespas and Ejectment upon this Ejectment Pasc 1650. B. S. 10. Maii. An ejectione firmae doth lye of a Cottage Pasc 1650. 12. Maii. Evidence The Allegation of the Councel at the Bar is no Evidence to the Jury but the matter which ensues upon this Allegation to prove it is good Evidence upon a tryal at the Bar. Mich. 22. Car. B. r. Witnesses who are to be made use of to give their Testimony at a tryal at the Bar if by reason of sickness or otherwayes they be not able to travel and come to the tryal may by order of the Court be examined upon Oath touching their knowledge in the Country where they live and their Depositions so taken are to be admitted to be read as Evidence to the Jury at the tryal Mich 22. Car. B. r. Depositions taken in Chancery may be order of the Court be read as Evidence to a Jury upon a tryal at the Bar by the Plaintiff or the Defendant or both if the Depositions were taken in the cause which is to be tryed at the Bar and between the same parties that are Plaintiff and Defendant in the tryal Mich. 22. Car. B. r. And so it is of Bills Answers Replications c. in Chancery But if the parties that Deposed in Chancery be living at the time of the tryal they ought to be examined ore tenus in Court and their Depositions are not in such case to be made use of Pasc 1650. B. S. The admittance of one to be an Administrator in an inferior Diocess is a Bar against the person that doth so admit him to give Evidence at a tryal that the Intestate had not bona not a bilia in divers Diocesses at the time of his death Mich. 22. Car B. r. For such Evidence would be contrary to what he hath formerly admitted The Court will not permit the Jury upon a tryal at the Bar to carry any wrightings with them out of the Court as Evidence for them to consider of but such as are under Seal and have been proved in Court Mich. 22. Car. B. r. For others are of no credit An Evidence given to a Jury may be answered by the Councel either by confessing and avoiding it or else by encountring the Evidence given with giving stronger Evidence and of greater credit on the other side Mich. 22. Car. B. r. A thing which is concluded in the Ecclesiastical Court which doth concern Lands is not to be given in Evidence to a Jury at a tryal concerning those Lands Mich. 22. Car. B. r. For the Courts of Common Law are not to be guided by their proceedings A person that may be admitted as a Witness at a tryal may give words in Evidence to the Jury which were spoken to him by another person who by the Rules of the Court might not be admitted as a Witness at the tryal Mich. 22. Car. B. r. For it is but matter of Evidence and is left to the Jury how far they will give credit to them It is not of necessity that a Deed or a Record given in Evidence to a Jury be shewed in Court but if it be proved that there was such a Deed or such a Record as are given in Evidence it is sufficient Trin. 23. Car. B. r. For a Deed or a Record may be imbezled or lâ—st and so not to be produced The Judges of the Court cannot try a matter of Fact in question upon a Demurrer to an evidence and therefore the Plaintiff and the Defendant must agree upon it and confess it Trin. 23. Car. B. r. For else the Court will not proceed to deliver their opinions touching the matter in Law Demurred upon Matter in Law ought not to be given in Evidence at a tryal but onely matter of Fact is to be given in Evidence and the matter in Law if there be any that is disputable is to be reserved to be spoken to in Arrest of Judgement Trin. 23. Car. B. r. For the Jury are onely to try matters of Fact If a Fem Covert acknowledge a thing at a tryal which is for the advantage of her husband but is for her own disadvantage yet this is no good Evidence to a Jury Mich. 23. Car. B. r. For her husbands present advantage is Hers also and is more looked upon then her future disadvantage The Defendants Councel ought to conclude by way of answer to the Evidence that is given unto the Jury by the Plaintiffs Councel Pasc 24. Car. B. r. For if the Plaintiffs Councel doth begin the Evidence it is reason the Defendant should speak last because he is upon the defensive part and is to give an answer to all that is said against him in matter of Evidence but the Plaintiffs Councel is to sum up his Evidence last to the Jury An ancient writing that is proved to have been found amongst Deeds and Evidences of Land may be given in Evidence to a Jury although the executing of it cannot be proved Mich. 24. Car. B. r. For it is very hard to prove things that are very ancient and the finding them in such a place is a presumption that
they were preserved as things of value and to be made use of A writing that is permitted to be read to prove one part of an Evidence given to a Jury may be read to prove any other part of the whole evidence to be given Mich. 24. Car. B. r. If the Plaintiff or Defendant will give some part of an answer in Chancery in Evidence to a Jury the Court may order that the whole answer be read Mich. 24. Car. B. r. That the Court and the Jury may the better consider what it makes to the Evidence and it may be if part onely be read it may prove good Evidence for the party whereas the whole answer taken together may be against him He that takes out a Copy of part of a Record out of any Office with intent to give the Copy in Evidence to a Jury must take out so much of the Record at least as doth any wayes concern the matter in question at the tryal or else the Court will not suffer such Copy to be read in Evidence to the Jury Pasc 1650. 2. Maii. B. r. For if it be not so taken out it cannot be sworn to be a true Copy of so much of the Record as concerns the matter in question which is to be done before it can be read A transcript of a Record which is in another Court or an Enrolement of a Deed may be given in Evidence to a Jury Mich. 1649. B. S. For they are things to be credited being made by Officers of trust Upon a tryal at the Bar the Councel of that party who doth begin to maintain the Issue that is to be tryed whether it be the Councel of the Plaintiff or the Councel of the Defendant ought to conclude the Evidence Pasc 1650. 1. Maii. B. S. If any one of the Jury that is sworn to try the Issue be desired to give his Testimony concerning some matter of Fact that lies in his particular knowledge and concerns the matter in question as Evidence to his fellow Jurors the Court will have him examined openly in Court upon his Oath touching his knowledge therein and he is not to deliver his Testimony in private unto his fellow Jurors 31. Oct. 1650. Mich. B. S. For the Court and Councel on both parts are to hear the Evidence as well as the Jury In the case of Miller Plaintiff and Collumbine Defendant upon a tryal at the Bar in an Action of Trespas and Ejectment It was said by Rolle Chief Justice That an Office which is found after the death of one that died Seised of Capite Lands in a County wherein the Lands found in that Office do not lye but in another County may notwithstanding it was not found in the County where the Lands do lye be given in Evidence to a Jury that is to try the title of those Lands if there was a special Livery granted unto the Heir of those Lands 1654. B. S. The Jury may view Depositions taken in Chancery if they be exemplified under the great Seal and they may also have them with them from the Bar to consider of as part of the Evidence but if they be not exemplified under the great Seal they may only look upon them at the Bar but not have them with them out of Court 1655. B. S. If one do produce a Lease made upon an Out-lawry in Evidence to a Jury to prove a title he must also produce the Out-lawry it self but if he produce the Lease to prove other matter he needs not to shew the Out lawry but may have the Lease onely read in Evidence and so it is of an extent without shewing the Statute or Judgement on which the extent is grounded So held in a tryall at the Bar between Johnson and Spencer Pasc 1655. B. S. By Glynn Chief Justice it was said That all the Judges have agreed that upon the Meal Act the Defendant shall give matters in Evidence to the Jury which do onely tend to prove the Issue in question and no other matter Trin. 1655. B. S. For that act is so mischeivous that it is no way to be favoured Emparlance If the Plaintiff do amend his Declaration at any time after it is delivered to the Defendants Atturney or after it is filed in the Office in any thing that is matter of substance the Defendant may by the Rules of the Court Emparle to the next Term after that the Declaration is so amended if the Plaintiff do not pay costs to the Defendant for his amendment but if the Defendant do accept of Costs of the Plaintiff then the Defendant cannot Emparle Mich. 22. Car. B. r. In what Term soever a declaration comes in against the Defendant the Defendant may by the Rules of the Court Emparle to the next Term after before he can be compelled to plead Mich. 22. Car. B. r. For the Law doth not force any one to do any thing rashly and without advice but gives the party time to deliberate what to answer for himself Where the Defendants Case doth necessitate him to plead a special Plea and the matter is difficult which is to be pleaded the Court upon a motion made to inform them of it will if the Defendant desire it grant him longer time to Emparle and put in his Plea then otherwise by the Rules of the Court he ought to have Hill 22. Car. B. r. Where the Plaintiff doth keep any Deed or Writting or other thing from the Defendant which doth belong unto him and whereby he is to make his Defence and is disabled by the detaining thereof to plead for his best advantage the Court upon motion and information thereof will grant an Imparlance to the Defendant untill the Plaintiff do deliver it unto him and a convenient time after till he can draw up his Plea Hill 22. Car. B. r. For the Law doth give every Defendant convenient time to make his best defence If the Plaintiff alter the venue from the place where he first laid it the Defendant may Emparle to the next Term after Trin. 23. Car. B. r. For thereby he may be forced to alter his Plea If the Plaintiff do declare against the Defendant but doth not proceed further thereupon for three whole Terms after the Defendant may Emparle to the next Term by the Rules of the Court Hill 23. Car. B. r. If the Plaintiff amend his Declaration and pay Costs to the Defendant the Defendant may not Emparle but if the Plaintiff give the Defendant a new Declaration or do so amend the old Declaration that it is upon the matter a new Declaration then the Defendant may Emparle Mich. 1654. B. S. By Rolle Chief Justice If the Plaintiff and the Defendant have proceeded so far as to Issue in the Cause and after that the Defendant do amend his Plea the Defendant shall pay the Plaintiff Costs yet the Court will not grant an Emparlance unto him although the cause be not entered in the Judges book for tryall if there
be warning given to the Defendant of the tryal 1655. B. S. Executor If one be indebted to I. S. in a certain summe of mony and I. S. makes his Will and deviseth this debt due unto him unto A. B. and makes I. L. his Executor and dyes this debt devised unto A. B. must be paid unto I. L. the Executor and not to A. B. the devisee Mich. 22. Car. B. R. For the Executor and not the Devisee can give a sufficient discharge for this debt If a Scire facias be brought against an Executor to shew cause why he should not pay a Debt unto the Plaintiff recovered against the Testator the Executor cannot plead fully Administred but he must plead that no goods of the Testators are come to his hands whereby he might discharge the Debt Mich. 22. Car. B. r. For he may have fully Administred and yet be liable in Law to pay the debt demanded upon the Scire Facias An Executor which hath Administred goods of the Testator as Executor or that is Executor of his own wrong by disposing of the goods of the party deceased without authority given unto him cannot waive a term of years for Land c. of which the deceased dyed possessed of Mich. 23. Car. B. R. For he hâ—th charged himself to be answerable to all persons concerned as far as the deceased parties personal estate will amount unto But if he have not Assets he may waive the Term. Trin. 24. Car. B. r. An Executor of his own wrong is not by Law chargeable for more then the value of the goods of the deceased doth amount unto and which did come unto his hands and with which he hath intermedled Mich. 23. Car. B. r. The word Executor is a word collective and doth comprehend in it the Executor of an Executor Hill 23. Car. B. r. For he is accountable for the first Testators goods An Executor may recover a duty which was due to the Testator although the Executor was not named in the creation of that duty Trin. 24. Car. B. r. For he represents the very person of the Testator An Execut or may be charged upon a Collateral promise made unto the party by the Testator if the promise was broken in the life time of the Testator else not Mich. 149. B. S. And 16. April 1650. B. S. Escape An Administrator may bring an Action of Escape for an Escape suffered of a Prisoner of the Intestate in his life time Trin. 23 Car. B. r. An Escape in one place is an Escape in all places so that for an Escape the party whose prisoner is escaped may bring an Action for this Escape in what County he pleaseth for the Action is not Local or fixt to any certain place Trin. 24. Car. B. r. But transitory Endictment An Endictment that is framed upon a Statute ought to pursue the words of the Statute Trin. 23. Car. B. r. The Justices of Assize will stay the proceedings against a person for a thing done by him during the time of war and in relation to the war Trin. 23. Car. B. r. For Indictments are to be preferred against persons that act any thing in the disturbance of a peaceable and setled Government If any one be perjured in an Affidavit made in any Court of Record touching any Cause depending in that Court an Indictment may be preferred against him for this perjury upon the Statute Trin. 23. Car. B. r. An Indictment of forcible Entry doth not lye upon the Statute of 8. H. 6. against one for entring forcibly into a Copy-hold but an Endictment doth lye in such a Case by the Statute of 21. Jacob. Hill 23. Car. B. r. Although exceptions be taken against an Endictment to the intent the Court should quash it yet the Court will grant time to maintain the Endictment unto the Kings Councel if they desire it Hill 23. Car. B. r. The Court doth not usually quash Endictments for perjury although the Endictments be faulty but will put the party to plead to the Endictment Hill 23. Car. B. r. For perjury is counted a great offence and therefore the Court doth not favour such offenders An Endictment ought to be more certain then common pleadings in Law need to be Hill 23. Car. B. r. An Endictment ought to express the year of our Lord in which it was taken Hill 1649. 30. Jan. B. r. If an Endictment be drawn so generall and so uncertain that the party Endicted cannot tell how to make a certain answer unto it such an Endictment is not good but may be quashed Pasc 24. Car. B. r. If a word be left out in an Endictment which is but onely in matter of form yet the Endictment is good but if be in matter of substance it is not good Trin. 24. Car. B. r. If one be Endicted for doing of any thing for which he is not by the Law to be Endicted for as for the enclosing of a Common or some other Trespas for which an Action at the Common Law is to be brought such an Endictment is not good but may be quashed Pasc 24. Car. B. r. If one do interrupt a long continued possession of Lands by an unlawful means and the person that is so interrupted of his possession do regaine his possession by unlawful means also yet an Endictment of forcible entry doth not lye against him for doing thereof Mich. 24. Car B. r. For the Law favours long possessions and doth not countenance the disturbers of them In most Cases the Endictment for a Fact done ought to be laid in that County where the Fact was done But this holds not in all Cases Mich. 24. Car. B. r. And Mich. 25. Oct. 1650. B. r. If one be Endicted at a Sessions in London or in any other County and the party Endicted do remove the Endictment by a Certiorari into this Court and do not thereupon quash the Endictment the party that did remove it ought by the Rules of the Court to try the Endictment at his own costs the next Term after that the Indictment is removed 13. Nov. 1650. B. S. Exposition The best Exposition of the Starute Law is to be had by the consulting with the makers of them and how they did in their times interpret them Hill 23. Car. B. r. For they knew best for what end they made the Statutes Contemporarea expositio legis est optima The word videlicet in a Deed is put to expound or make plain the premises of the Deed in which it is put and therefore that which it brings in ought not to be contrary to it for if it be the videlicet is void Pasc 23. Car. B r. If all the words of a Deed can stand together without any absurdity the Law will make such an exposition of them that the whole Deed may be good in Law Pasc 24. Car. B. r. Election An Action of Trespas upon the Case or an Action of Trespas vi armis may be brought against one
and so it is as if nothing were done in the cause If there be two Issues joyned in one cause and one of them is a good Issue and well joyned and the other is not a good Issue but ill joyned and upon trial of the Cause entire Dammages are given upon both the Issues this is erroneous 31. Jan. 1649. Hill B. S. For here are Dammages given for a matter which is not rightly tried for want of joyning a good Issue to bring it in question An affirmative on the one part and a negative on the other part although it be but an implied negative do make a good Issue 15. Maij. Pasc 1650. B. S. For an implied negative doth deny what is affirmed although not so plainly as an expresse negative When a Plea is pleaded to the Plaintiffs Declaration and the Plaintiffs Attorneys hand is set to this Plea then the Issue is joyned betwixt the Plaintiff and the Defendant and not before 6. Feb. 1650. B. S. For then both parties are agreed of the matter in question betwixt them Judgement Upon a Recovery in any Action where the Plaintiff doth declare for a thing done vi armis the Judgement ought to be entred with a Capiatur for a Fine for the King But in an Action upon the Case where the Plaintiff is not to declare with a vi armis there the Judgement against the Defendant ought to be that he be in miscricordia 21. Car. B. r. The Capiatur which is imprisonment of the Party and the Fine for the King are for the breach of the Publick Peace which every Action vi armis doth imply But Trespasses on the Case do not so and therefore there the Party is only to be amerced and not to be imprisoned or fined Where there are several Judgements against the Defendant one of those Judgements may be reversed as erroneous and yet the other Judgments stand in force 21. Car. B. r. This is meant where there are several Judgements upon one Record All Judgements given in any Court of Record ought to be entred in Latine And if they be in English they are reversable by a Writ of Errour 21. Car. B. r. This is now altered by the late Statute that enacts all proceedings in Law to be in English No Councel ought by the Rules of the Court to move any thing in arrest of Judgement except the Roll wherein the Judgement is entred or the Postea be in Court 22. Car. B. r. That the Court may be satisfied that the matter moved in arrest of Judgement is truly recited from the Record There is difference between a customary Judgment and a Judgement given according to the Common Law Trin. 22. Car. B. r. It is sufficient matter for the Defendant to move in Arrest of Judgement to prove that he had not sufficient notice given unto him of the trial before the trial according to the Course of the Court. 22. Car. B. r. Hill If a Judgement be given which is erroneous and the Plaintiff do take out a Scire facias upon that Judgement and have a Judgement upon that Scire facias The Judgement upon that Scire facias is erroneous also Mich. 22. Car. B. r. For if the foundation be naught that which is built upon it must needs fall And here the first Judgement is the ground of the second A Judgement which is given contrary to the Verdict which was found in the Cause is a void Judgement Mich. 22. Car. B. r. For the Judgment is to be warranted by the Verdict and is but the affirmance of the Verdict and therefore it must not contradict the Verdict The COurt will not reverse a Judgement given upon a Nihil dicit and by the Rules of the Court but by the Consent of the Plaintiff and the Defendant the Court will grant a Repleader in the Case Mich. 22. Car. B. r. If a Verdict be given after the term no Judgement can be given upon that Verdict untill the next Term following Mich. 22. Car. B. r. 23. Car. B. r. For such proceedings in the Law ought not to be in the Vacation time but in Term time For the Judgement is the Act of the Court and the Court sits not but in Term. If a Judgement be obtained but the Plaintiff doth take out no Execution upon this Judgement in two whole years next after the Judgement given The Plaintiff cannot then take out Execution untill he have revived this Judgement by a Scire facias which Writ he may have without motion by the course of practice of the Court but if there be an old Judgement upon which no Execution hath been taken out such a Judgement cannot be revived by a Scire facias without a motion and leave of the Court Mich. 22. Car. B. r. But the Court doth not use to deny a Scire facias in such a case If the Defendants Attorney do enter a Plea for his Clyent in the Office the Plaintiffs Attorney cannot enter a Judgement against the Defendant upon a Nihil dicit or for want of a Plea although the Plea be not given unto him by the Defendants Attorney Mich. 22. Car. B. r. and Pasc 24. Car. B. r. For the Office is the place where the Attorneyes on both sides are to inform themselves of the proceedings in their Clyents Causes and the delivery of Declarations and Pleas c. by one Attorney to another in their Clyents Causes is rather matter of courtesie and civility than of any necessity or duty Four days after the Plaintiffs Attorney doth bring the Postea into the Court he may enter Judgement for his Clyent by the course of the Court Mich. 22. Car. B. r. Except the Defendant doe then or before move something to the Court to arrest or stay the Judgement Where a Judgement is arrested only for mispleading there the Court will grant a Repleader Mich. 22. Car. B. r. A Judgement was reversed in this Court for tautology used in it Mich. 22. Car. B. r. That is for repeating the same thing over and over For the Law will not suffer Barbarismes in the proceedings thereof If a Judgement be unduly obtained and sufficient proof be made thereof unto the Court the Court will vacate the Judgement and restore the party damnified by it to be in the same Condition that he was in before the Judgement Mich. 22. Car. B. r. Without putting him to a Writ of Errour Pasc 22. Car. B. r. For the Court will not be made a stale to do any person injury If one will take advantage of a Defeasance of a Judgement to avoid the Judgement whereupon it was made he must plead this Defeasance in Court otherwise the Court cannot take notice of it Mich. 22. Car. B. r. For the Defeasance is a private thing between the Parties and no part of the Record A Judgement in an Action of Detinue is given conditionally that is to say that the Plaintiff recover the thing it self which is detained if it may be
Mich. 23. Car. B. r. But Q Whether they will grant it because by the Writ of Error their hands are foreclosed but now by the late Act a Writ of Error is no Supersedeas and so the Law in this point is altered In a Judgement given for the Plaintiff to recover a sum of money the sum must not be written in figures for if it be it is error but it must be expressed in words at length Mich. 23. Car. B. r. For a Judgement consists in words and words are made of letters and not of figures which can spell nothing If a Judgement be given upon an Issue tryed in a cause wherein there is also matter of Law in dispute upon another Issue in that cause before the matter in Law be determined yet the Judgement is good Hill 23. Car. B. r. Upon the Affirmance by the Parliament of a Judgment given in this Court and removed by a Writ of Error brought in Parliament to reverse this Judgement the Parliament useth to have a Remittitur entred upon the Judgement Roll to send it back into this Court that this Court may award Execution upon the Judgement Hill 23. Car. B. r. For Execution ought alwayes to Issue out of that Court where the Judgement was given If a prisoner which is Endicted for Felony will not plead to the Endictment he is by the Law to be pressed but if a prisoner endicted for Treason will not plead at all to the Endictment or answers impertinently and not to the purpose judgement shall be given against him as if he were found guilty Pasc 23. Car. B. r. In Sir John Stowels Case as I remember If there be not four dayes of a Term to come after a Postea is returned in Court before the Term be ended so that the Defendant cannot have four dayes liberty to speak in Arrest of Judgement as by the course of the Court he ought to have there ought not to be any Judgement given in the cause untill the next Term after that the Defendant may have so much time to speak in Arrest of Judgement as he ought to have Pasc 24. Car. B. r. If a Judgement be but seven years old the party may by the course of the Court have a Scire facias to revive it without moving of the Court for it and if the Judgement be under ten years old the party may move for a Scire facias to revive it at the side Bar but if it be ten years old or more a Scire facias to revive it must be moved for in Court Pasc 24. Car. B. r. One may speak in Arrest of a Judgement given upon a nihil dicit at any time during the same Term that the Judgement was obtained Pasc 24. Car. B. r. For the Defendant is more favoured in a judgement given against him upon a nihil dicit then where a Judgement is given against him upon a Verdict because in the former Case he makes no defence but in the latter case it is intended he hath made his full defence Where one entire Judgement is given against two several persons and one of them is an Infant the whole Judgement is void Trin. 24. Car. B. r. For it being void to the Infant and being an entire Judgement which cannot be divided it must necessarily be void as to the other and so void in toto If a peremptory rule be given for the Defendant to plead at a certain day if he do not plead accordingly the Plaintiff may enter Judgement against him without any further moving of the Court Trin. 24. Car. B. r. For it was the favour of the Court to give him that day to plead and if he make no good use of it it is his own fault and the Court will not further delay the Plaintiff If the Plaintiff do demur to the Defendants Plea and the Defendant do joyn in the demurrer if the Plaintiff will not maintain the demurrer Judgement shall be given against him Trin 24. Car. B. r. For thereby it is implyed that he confesseth the Defendants Plea to be good and consequently that he hath no cause of Action That which a Judge of this Court doth act in his Chamber as a Judge of this Court is accounted to be done in Court Trin. 24. Car. B. r. For it is in order to the proceedings in the Court Q. Where a Judgment is entire it cannot be reversed in part and stand good as to another part but if it be not an entire Judgement it may Trin 24. Car. B. r. For an entire Judgment cannot be divided to make one part of it good and another part of it to be erroneous If the Plaintiff do give the Defendant two rules for him to plead according to the course of the Court and the Defendant do not plead when the time of those two rules are out the Plaintiff may enter a Judgement against him upon a nihil dicit but not before Mich. 1644. B. r. If a man bring an Action of Debt against two Executors and they plead they have not Assetts and thereupon Issue is joyned and it is found that one of the Executors had Assetts at the time of the Action brought but that the other Executor had not Assetts the Plaintiff shall have Judgement to recover the Debt against that Executor who was found to have Assetts and a nil Capiat per billam shall be entred against the Plaintiff as to the other Executor who was found to have no Assetts Mich. 24. Car. B. r For the possession that one Executor hath of the Testators goods is not the possession of the other Executor It is against the course of practice in this Court to admit the principal to acknowledge a Judgement for his Bail but in the Common Pleas they use to admit it Mich. 1649. B. S. But it is said that the Common Pleas will not admit it now since the rules of regulation made If in an Action of Trespass and Ejectment brought to try the title of the Land the owner of the Land whose title is concerned will not save the party that is made Ejector harmeless from all prejudice that may befall him by reason of the Suite he may confess Judgement unto the Plaintiff for the Land in question Mich. 1650. B. S. For to avoid further trouble and charge by reason of the suite which concerns him not either in gaine or loss If a Judgement is given which is not warranted by the Verdict upon which it is given that Judgement is not good Mich. 1649. B. S. If a Judgement given in an inferior Court be not according to the ancient form of Judgements given there such Judgement is erroneous and this Court will reverse it upon a Writ of Error brought Pasc 1650. 24. Maii. B. S. If an Action of Trespass or Trover and Conversion be brought for divers several things and the Verdict doth finde that the Defendant had but some of the things for which the Action was brought yet the
Jury doth give costs and dammages for all the things laid in the Declaration if the Plaintiff will release his costs and dammages for those things which were not found he may have Judgement for the other things which are found Mich. 1649. B. S. It is dangerous to take a Judgement acknowledged in the vacation as of a preceding Term and it ought to be made a Judgement of the subsequent Term. Mich. 1649. B. S. Yet it is common practice to do it If one be Out-lawed in an Action brought upon a Jugdment by a nihil dicit and that Out-lawry is reversed by a Writ of Error the Judgement is also to be reversed Mich. 1649. B. S. For it seems one may not be twice Out-lawed upon one Judgement which might be if the Judgement should not be reversed for the Plaintiff might bring a second Action upon the same Judgement and Out-law the Defendant again If one take a Judgement he cannot consent to vacate it Mich. 1649. B. r. But he may acknowledge satisfaction upon record If the Defendant in an ejectione firmae will not plead according to the rules of the Court Judgement ought to be entred against him by the ancient Rules of the Court without moving of the Court and the moving for it is grown in use but of late times and it is a new charge brought upon the Clyent to put him to this motion and there was no inconvenience in the old way and therefore this order is to be set up in the Office and to take effect the next Term and in the mean time the Clyents to have notice of it Hill 1649. 23. Jan. B. S. By Rolle Chiefe Justice A Judgement was reversed because it was given for more then was demanded in the Declaration Pasc 1650. 3. Maii. B. S. A Judgement was reversed for these errors because the time when the Judgement given was in figures 2. Because the sum recovered was expressed in figures 3. The venire facias was with an c. And 4. the cause of Action did not appear by the Record to be within the jurisdiction of the Court where the Judgment was given 1649. Hill B. S. This was a Judgment given in an inferior Court A Judgement was reversed because it was entred thus Ideo consideratum est ad eandem curiam whereas it ought to be per eandem curiam Hill 1649. 30. Jan. and 1. Feb. For it might be considered at the Court which is onely the place where the Court is held and yet not be the Act of the Court. After an Issue is joyned to be tryed by the Plaintiff and the Defendant the Plaintiff may if he will without going to tryal accept of a Judgement from the Defendant without any Verdict in the Case Pasc 1650. B. S. 24. Maii. For the Defendant is not prejudiced by it if he will acknowledge the Judgement and the Plaintiff could have recovered no more if he had had a Verdict and may waive his costs if he please If a thing be entred in a Judgement which is not mentioned in the Plaintiffs Declaration upon which the Judgement is given the Judgement is not good Pasc 1650. B. S. Judgement was given against one of not sane memorie and held good for by Rolle Chief Justice the Defendant may bring a Writ of Error to reverse the Judgement and Assigne this for error This was in the Case of Disne and Grigson Trin. 1650. B. S. 26. Junii A Judgement ought not to be entred untill the costs be taxed and the Judgement Signed by the Secondary of the Office 2. Julii 1650. Trin. B. S. A Rule of Court was made upon a motion at the Bar that the Secondary should enter a Judgement in a Cause wherein a Tryall was to be had as a Judgement of the Term next preceeding the Term wherein the Tryal was to be and that the Secondary should express in the Rule that the Rule was made by the consent of the Plaintiff and of the Defendant in the Cause 2. July 1650. B. S. For consensus tollit errorem and otherwise the Court would not have made such a Rule This Court will not admit the principal in an obligation to suffer a Judgement for his suerties that are bound with him in an obligation but the Court of Common Pleas doth usually admit it 12. Nov. 1650. B. S. By Rolle Chief Justice But now they have altred that course in the Common Pleas as it is said and in truth it was not reasonable for though a man may be contented to be a Suerty in an obligation for another yet it followes not that he would be contented to be liable to a Judgement for him whereby his goods may be swept away by an Execution before he is aware of it The course for one to acknowledge a Judgement is for him that doth acknowledge it to give a general Warrant of Atturney for any Atturney or some particular Atturney of that Court where the Judgement is to be acknowledged to appear for him at his suite who is to have the Judgement acknowledged unto him and to receive a Declaration from him and to plead Non sum informatus and thereupon Judgement is entred for want of a Plea 14. Nov. 1650. B. S. A Judgement upon a nihil dicit is not a perfect Judgement untill the Writ of Enquiry of dammages taken out upon this Judgement be executed 16. Nov. 1650 B. S. For the dammages are to be exexpressed in the Judgement which cannot be known what they are untill the Jury Empanelled by the Sheriff to enquire of the dammages have found them When a Plea is pleaded if the Atturney on the other side will not set his hand unto it as he ought and joyn in the Issue Judgement may be entred against him by the Defendants Atturney 6. Feb. 1650. B. S. Q. If a Judgement in an ejectione firmae be quod recuperare debeat and a Writ of Error be brought to reverse this Judgement this Writ of Error is not well brought but must abate for here is no Judgement given for the present for then it should be recuperet in the present Tence Trin. 1651. B S. By Rolle Chief Justice a Judgement ought not to be entred for want of a Councellors hand set unto a special Plea as by the Rules of the Court there ought to be without first acquainting of the Secondary of the intention to enter Judgement for such a Plea without a Councellors hand is a Plea and it may be there needeth not a special Plea and the party must not be his own Judge whether it be good or no. B. S By Rolle Chief Justice in an Action of Trespass brought quere vi armis a Capiatur ought to be entred upon the Judgement where the Judgement is given before the Act of Oblivion was made but if Judgement be to be given in an Action brought for a Trespass done since the Act of Oblivion was made and which is pardoned by the Act pardonatur ought to be
a Messuage is an entire thing of it self and cannot be apurtenant to another thing Non-sute UPon a Trial when the Jury comes in to deliver in their Verdict and the Plaintiff is called to hear the Verdict If he do not appear after he is thrice called by the Crier of the Court he is to be Non-sute and the Non-sute is to be recorded by the Secondary by the direction of the Court at the prayer of the Defendants Councell Hill 21. Car. B. r. When a Plaintiff is Non-sute if he will again proceed in the same Cause he must put in a new Declaration and cannot proceed upon that Declaration whereupon he did proceed in the Cause wherein he became Non-suite 22. Car. B. r. 16. Ap. 1650. B. S. For by his being Non-suit it shall be intended that he had no such cause of Suite as he deelared in and so that declaration is void The King of Spain hath been Non-suit in England Mich. 22. Car. B. r. And this stands with reason for if a foraign Prince will take the benefit of the nationall Laws here he must proceed and stand to the Rules and orders of the Court wherein he prefers his Action If the Plaintiff will not proceed upon his Declaration as he ought to do by the Rules of the Court the Defendant may Non-suit him Mich. 1649. B. S. Although upon a tryal the Plaintiff be called to hear the Verdict and do not appear to hear the Verdict when he is called and thereupon the Court direct the Secondary to record the Non-suite yet if afterwards the Plaintiff do appear before the Non-suite be actually recorded the Court may proceed to take the Verdict Trin. 1651. B. S. For it is not a Non-suit untill it be recorded by the Secondary and then it is made part of the record and is in the nature of a Judgement against the Plaintiff If the Plaintiff be not ready at the tryal with his Record when the Jury is called the Court will call him Non-suit By Rolle Chief Justice 1651. B. S. For it shall be intended he will not proceed in his cause any further Nolle Prosequi A Nolle Prosequi is where there are divers Issues joyned between the Plaintiff and the Defendant and the Plaintiff enters upon the Roll a Nolle Prosequi That is to say that he will not proceed upon one or more of the Issues joyned and yet he may proceed to tryall upon the rest of the Issues Hill 23. Car. B. r. Nusance A Nusance made in a Port or Haven by the sinking of a Ship there ought to be removed by the owner of the Ship and if he do it not he may be endicted for it as for making a Common Nusance 21. Car. B. r. For it is prejudicial to the Commonwealth in hindering of Trade An Action upon the Case ought to be brought against one that makes a private Nusance and he ought not to be endicted for it Pasc 23. Car. B. r. For Endictments ought to be in the Kings name and do presume to be preferred for offences done against the publike A common Nusance may be abated or removed by those persons who are prejudiced by it Pasc 23. Car. B. r. Nomine Poenae A Nomine Poenae for the non-payment of a Rent ought to be legally demanded if the Rent be behind as well as the Rent is to be demanded before the grantee of the Rent can distrain for it 21. Car. B. r. For the Nomine Poenae is of the same nature as the Rent is and is issuing out of the Land out of which the Rent doth issue Notice The Plaintiff and Defendant are both bound at their perill to take notice of the general Rules of practice of this Court but if there be a special particular Rule of Court made for the Plaintiff or for the Defendant he for whom the Rule is made ought to give Notice of this Rule unto the other or else he is not bound generally to take notice of it nor shall be in contempt of the Court although he do not obey it Pasc 24. Car. B. r. Mich. 1649. B. S. For general rules are the general practice of the Court whereof every one must take Notice of that hath to do there but particular rules are made upon particular and extraordinary matters happening in the proceedings upon the motion of one of the parties made to the Court of which the other may be ignorant The Court is bound Ex Osicio to take Notice of all matters which do appear upon the Record depending before them but of matters Dehors viz. to search the Almanack for dayes and to compute times mentioned in the Record they are not bound Ex Oficio to do it 21. Car. B. r. 24. Car. B. r. Q. The Court is not bound to take Notice of the new stile but of the old English stile 21. Car. B. r. For the old is that whereby all accounts in the Common Law are guided and not by the new which is foreign and goes ten dayes before the English stile or account The Plaintiff ought to give the Defendant eight dayes Notice exclusive before he executes his Writ of Enquiry of Dammages or else the Court will quash it although he have executed it and put him to a new Writ of Enquiry upon the motion of the Defendant made to the Court of his want of such Notice and proof thereof by Affidavit Trin. 22 Car. B. R. and Pasc 1652. B. r. Exclusive is meant that the day upon which the Notice is given is not to be one of the eight dayes but the Writ is to be executed upon the ninth day and so long Notice is to be given that the Defendant may have time sufficient to defend himself by his Councel and Witnesses upon the evidence given against him before the Sheriff and the Jury by the Plaintiff The Common Law doth not take Notice of the intentions of the party to do any unlawful Act except it be in case of high treason Trin. 22. Car. B. r. For mans Law is to regulate the words and Actions of men and not the thoughts of which it cannot have conusanse But Gods Law extends to the thoughts This Court is to take Notice of a general Ordinance of Parliament viz. such a one as concerns the Publique but not of a Parliament Ordinance which concerns some particular persons Mich. 24. Car. B. r. Except such particular Ordinance do appear before them by pleading or otherwise If a Declaration be put into the Office although it be not filed yet is the Defendants Atturney bound to take notice of it Mich. 22. Car. B. r. For it is the Duty of the Plaintiffs Atturney onely to put the Declaration into the Officer and the Officer in the Office is to file it and though it be not filed yet may the Defendants Atturney take a Copy of it None is bound by the Law to give Notice to another of that which that other person may otherwise inform himself
a Trial there he must give the Defendant new Notice but if such Trial be to be the next Term after the reference it is not necessary to give new Notice of it for it may be tried by proviso Trin. 1652. B. S. If one give Notice of a Trial to the Defendant and yet doth not try his Cause at the day appointed but do defer his Trial for longer time than one Term after If after that he will try it he must give a whole Terms Notice before his Trial but if he try it the next Term after there needs no new notice For if the Plaintiff try it not than the Defendant may try it by proviso Trin. 1652. B. S. If an Action be laid in London and the Defendant do live fifty miles off the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes Notice of the Trial before he proceed to it By Rolle Chief Justice In regard of the distance of place it is fit he should have time for his travel and to prepare for his Defence If the Defendant will try the Cause by proviso he ought to give the Plaintiff due Notice that he will try it and may not take advantage of the Notice formerly given by the Plaintiff 1654. B. S. Because it lies in the Election of the Defendant either to try the Cause by proviso or not to try it And the Plaintiff cannot presume he will try it being Defendant in the Action except the Defendant give him Notice that he will try it If one give Notice to another that he will move the Court in one thing and tell him in what and at the time he moves the Court in another matter and not in that whereof he gave Notice that he would move the Court in This is not good Notice of the motion but the Court will give the partie further time to answer the motion By Rolle Chief Justice For by such deceitfull Notice the party concerned cannot prepare to answer the motion Notice given to the party concerned by the Councel in the cause that he intends to move the Court against him at such a time is not to be taken by the Court for good Notice upon the bare averment of the Councel at the Barre that he gave such Notice but if the Councel will make Affidavit in writing that he gave such Notice the Court will allow it This Court is not bound ex officio to take notice of private Orders made by the Councel of State By Rolle Chief Justice For they are matters but of particular concernment and not matters of Law or publique businesses whereof as Judges they are to take Notice Notice given in the night of a robbery by the party robbed with an intent that Hue and Cry should be made after the Fellons is good Notice according to the Statute if it be given in convenient time after the robbery was done By Rolle Chief Justice It is not necessary to give Notice of a robbery to the Vill that is next within the Hundred where the robbery was done and unto that place where it was done For if the next Vill be out of the Hundred yet Notice given there is good Notice according to the Statute of Winchester Non omittas If the Bailiff of a Liberty do not retorn a Warrant made upon a Latitat out of this Court to arrest one within the Liberty directed unto him the party that is prejudiced by his not making a retorn of it may by the course of this Court have a Writ called a Non omittas directed to the Sheriff of the County in which the Liberty lies commanding him to enter into the Liberty and to make Execution of the Writ viz. the Latitat 21. Car. B. r. For Liberties must not be priviledged to hinder or delay the Execution of Justice and if they or their Ministers do neglect their duties herein this Court may intermeddle notwithstanding their priviledges to put the process of this Court in Execution that the Law may receive no obstruction by them Negative preignans A Negative preignans is when two matters are put in Issue in one plea. Hill 23. Car. B. r. And this makes the plea to be naught because the Plaintiff cannot tell in which of these matters to joyn Issue with the Defendant for the incertainty upon which of the matters the Plaintiff doth insist upon Oath OFficers of Justice are by the Common Law bound to take an Oath for their due Execution of Justice and if they refuse to take such an Oath they may be imprisoned for refusing to take it Trin. 22. Car. B. r. So carefull is the Law to have Justice done to all parties One that is to testifie on the behalf of the King upon an arraignment of a Felon cannot be examined upon his Oath for the prisoner against the King but he may be examined without giving him his Oath Mich. 22. Car. B. r. He is suffered to give his testimony for the prisoner against the King and without his Oath in favour of life The Court will rather believe the Oath of the Plaintiff than the Oath of the Defendant if there be Oath against Oath because it is supposed that the Plaintiff hath wrong done him and that the Defendant is the wrong doer and may therefore be rather supposed to swear falsly to protect himself from the Law than the Plaintiff that is forced to flie to the Law to obtain his right Pasc 23. Car. B. r. One that is to be a Witness in a Cause may have two Oaths given him one to speak the truth to such things as the Court shall ask him concerning himself and the other to give testimony in the Cause in which he is produced as a Witness The former is called an Oath upon a Voyre dire Pasc 23. Car. B. r. Obligation One ought not to be admitted to be a Witness to prove an Obligation or other Deed which he takes in the name of another 21. Car. B. r. For if he might be so admitted this would be upon the matter to suffer him to be a Witness to prove a Bond or Deed made to himself which is not reasonable If a Sheriff take a Bond of the Defendant for his apparance to the Action upon which he is arrested by the Sheriff at the Plaintiffs sute and the Defendant doth not appear accordingly and according to the Condition of the Bond the Plaintiff may by the leave of the Sheriff sue this Bond in the Sheriffs name and proceed to Judgement upon it against the Defendant but without his leave it cannot be done but it is at the election of the Plaintiff to sue this Bond or not for he may proceed if he please by amercements upon the Sheriff untill he make a retorn of the Writ directed unto him Hill 22. Car. B. r. For the Bond is only to save the Sheriff harmless against what may befall him if the Defendant do not appear and doth no way concern the
cause proceeded in be entred Mich. 1649. B. r. For not till then the Record is made perfect An appearance will help a miscontinuance of Process 9. Nov. 1650. B. S. The bringing of a Writ of Error is a continuance of the Action 10 Feb. 1650. B. S. Hill For the Action is not determined by the Judgement if a Writ of Error be brought but is still depending for the Judgment it may be may be reversed If a cause to be spoken to in Court be entred into the paper of causes for the day in the Office although it be not put into the paper of the causes of the day delivered to the Judges yet the Court will proceed in them if they be enformed of it Trin. 1651. B. S. For it was but a mistake of the Clerk and it may be Councel on both sides are entertained for that day to speak in it Upon a Verdict or a Demurrer sometimes the continuances in the cause are not entred until after a Writ of Error be brought Pasc 1652. B. S. Miscontinuance of Process is where one Process is used for another Process viz. a wrong Process in stead of a right Trin. 1652. B. S. Provisoe A Provisoe in a Deed which sounds in Covenant is Collateral 21. Car. B. r. That is a Provisoe which is so penned that it implies a Covenant in it for there is difference betwixt a Provisoe and a Covenant of a Deed for a Provisoe doth often go by way of destruction of the whole Deed or some part of it or of the estate created by it but a Covenant alwayes stands with the Deed and onely an Action lyes upon the breach of it A tryal by Provisoe was ordained by the Statute to the end that the Defendant might free himself of suits brought against him by trying the issue depending betwixt him and the Plaintiff in case the Plaintiff doth not try it as he ought which he may do the next Term after the Plaintiff should have tryed it or at any time after that when he pleaseth Hill 22. Car. B. r. If a Provisoe in a Deed be insisted upon at a tryal to destroy the Deed in which it is there must be punctuall proof that the thing provided to be done or not done was done or was not done according as the Provisoe directeth Mich. 1650. B. S. For the Law doth not favour the destruction of Deeds or estates but doth favour the supporting and maintenance thereof as much as may stand with the rules of Justice Pledge The Plaintiffs Pledges that he shall prosecute 〈◊〉 suite may be entred at any time pending the suit Trin. 22. Car. B. r. For the putting in of Pledges is now but a meer formal thing but what was the ancient use of putting them in Q. Pardon A general Pardon doth discharge not onely the punishment which was to have been inflicted upon the person of him that did commit the offence Pardoned but also the guilt of the offence it self Mich. 22. Car. B. r. A Pardon may dispence with the burning in the hand of a person that is convicted for Felony but without a Pardon it may not b◠dispensed withall Pasc 23. Car. B. r. The words Pardonavit remisit relaxavit in a Charter of Pardon granted to one for Felony do not restore unto him the goods which he forfeited to the King by his Felony but the word restituit in the Pardon doth restore him to his goods Trin. 23 Car. B. r. For the former words go but only to the Pardoning of the offence but the latter to restoring to the estate forfeited by the Felony A Pardon for treason cannot be pleaded untill the prisoner be charged with the Endictment for the offence committed Pasc 24. Car. B. r. For before he is charged by the Endictment it doth not appear to the Court that he is the person that is pardoned by the Pardon If one have a Charter of Pardon for Felony committed by him the Court ought to allow it upon the prayer of the party that hath it but he must produce it at the Bar and pray upon his knees that it may be allowed 13. Nov. 1650. B. S. And so it was then done in one Goffs case A general Pardon doth Pardon publicke offences done to the Commonwealth but it doth not Pardon private injuries done to particular persons Pasc 1652. B. S. Postea The Postea is the issue or record engrossed in parchment upon which a tryal is had and which is afterwards to be entred in the roll of the Court where the Action tryed was brought when the party enters his Judgement upon the Verdict had at the tryall Mich. 22. Car. B. r. It is called the Postea from the word Postea which begins that which is entred by a Clerk of Assize upon the record that was tryed after the tryal setting forth that Postea that is afterwards after the issue joyned at such a day and place and before such a Judge the Plaintiff and Defendant came c. to hear Judgment that is to try the cause and hear the Verdict and so sets forth the tryal particularly and the Verdict The Court may stay the Postea not suffering the party to enter Judgement upon his Verdict if they find cause to do it Mich. 22. Car. B. r. viz. For undue proceedings in the tryal The Defendant hath four dayes by the rules of the Court to speak in arrest of Judgement after the Postea is brought into the Court and if the party for whom the Verdict passed will not bring it in upon notice given to him by the other party that he intends to move in arrest of Judgement the Court upon a motion setting forth this matter will order Judgement to be stayed untill four dayes after it shall be brought in There is no general rule of Court for the Clerk of the Assize to bring in the Posteas into this Court by a percise time but if he be negligent and return the◠not in convenient time the parties grieved may more the Court and thereupon the Court will make a rule that he bring them in speedily Mich. 22. Car. B. r. If the Clerk of the Assize have mistaken himself in drawing up of the Postea he may amend it by his notes which he took and drew it up by although it be returned Trin. 24. Car. B. r. But it must be before it be filed for then it is a record of this Court After the Postea is entred upon record and the record hath been read in Court in order to the speaking to some matter in Law in it the Atturney in the cause ought not to have the Postea any longer in his custody but it ought to remain in Court Trin. 24. Car. B. r. The Defendant may give rules in the Office for the Plaintiff to bring in the Postea and if he will not do it he shall be non-suite 18. Nov. 1650. B. S. For though he have a Verdict yet he hath no Judgement and so his
a Procedendo that the cause may be removed into London that the Custome may be tryed there for it cannot be tryed here and so if a Procedendo should not be granted the cause would remain untryed and the party that brought the Action would be without remedy Hill 22. Car. B. r. After the Defendant hath filed Baile in this Court a Procedendo ought not to be granted much less after issue is joyned in the cause Pasc 23. Car. B. r. For by admitting of the Bail the Plaintiff hath admitted the jurisdiction of the Court and it is then too late to move for a Procedendo It is not necessary that a Procedendo do agree in form with the Habeas Corpus by which the cause was removed into this Court but it is sufficient if it do agree in the matter with it Trin. 24. Car. B. r. If the Defendant hath put in Bail in this Court upon the removal of the cause hither by Certiorari or Habeas Corpus cum causa if afterwards the Bail be disalowed by the Court if the Defendant shall refuse to put in better Bail such as the Court shall approve of a Procedendo may be granted to the Plaintiff to remove the cause back again to try it where the Action was first said Mich. 24. Car. B. r. For disalowing of the Bail makes the Defendant to be in the same condition as if he had put in no Bail If a Certiorari to remove a cause be returned before a Judge and not in Court and their follows no proceedings in the cause after the Certiorari returned if the party who is concerned will move for a Procedendo he must move for it before the Judge before whom the Certiorari was returned and not in the Court whether the cause is removed Mich. 1649 B. S. Because the Judge hath been formerly acquainted with the return of the Certiorari and may have better knowledge why it was granted and therefore the Court will not intermedle to undo what the Judge hath done Practice If the Atturney for the Plaintiff do tell the Defendants Atturney that he is content to stay for a Plea till such a time and yet doth in the mean time enter Judgment for want of a Plea this is not fair practice but if this be made to appear to the Court the Court will vacate the Judgement and force him to accept of a Plea Hill 22. Car. B. r. For the Law will not countenance fraud and falshood in the proceedings thereof but loves plain and fair practice It is not fair practice for the Defendants Atturney to Demur to the Plaintiffs Declaration without probable cause but onely to gaine time to plead Trin. 23. Car. B. r. For this is apparent cause of delay Peace and Justice of Peace A Justice of Peace in one part of York-shire is not a Justice of Peace throughout the whole County but onely in that division of York-shire where he is authorised by his Commission to be a Justice Hill 22. Car. B. r. This is in regard of the large extent of that County for in other Counties a Justice of Peace in every County is a Justice of Peace throughout the whole County The Peace was granted against one upon an Article sworn in Court amongst others that he did threaten to burn down the Plaintiffs house Hill 22 Car. B. r. For such menaceing words are accounted to be a breach of the Peace and such persons are dangerous persons in the Commonwealth and to be restrained from doing mischief A Justice of Peace ought not to binde a man to his good behaviour upon a general Information and if the party shall refuse to put in sureties for his good behaviour upon such an information yet the Justice ought not to send him to the Gaol for his refusal Pasc 23. Car. B. r. But the information must be particular and shew wherein the misbehaviour consists for accusatio generalis non est applicabilis personae particulari It is the duty of Justices of Peace to attend duly at the quarter Sessions and at the Assizes held for the County where they are Justices Pasc 23. Car. B. r. For there are the most important businesses which concern the Peace and Government of the County managed The Commission of Oyer and Terminer doth extend to Justices of the Peace Pasc 23. Car. B. r. A Justice of Peace may himself actually arrest and commit a Felon for a Felony done in his own view without any Warrant made to another to do it but he may not command one to be apprehended for Felony upon a bare information made against the party but by a warrant under his hand and Seal and not by Paroll Pasc 23. Car. B. r. It is the course used in the Capital Office to continue one that is there bound to the Peace to be so bound during his life but by Rolle Chief Justice this is not reasonable Pasc 1651. B. S. 13. Maii. If the person that is to be bound unto the Peace be a dangerous person and the cause for which he is to be bound do require great security a Justice of Peace may require him to find extraordinary sureties to be bound with him and in what sum he shall judge the cause doth require Pasc 1652. B. S. If this Court do see cause to bind one to the Peace they may do it although no person doth make Oath that he goes in fear of his Life of the party Pasc 1652. B. S. For such Oath is but evidence against the purty that there is cause to bind him to the peace and if the Court be satisfied that there is cause to do it without such evidence the not having of such an Oath is no hindrance unto them to do it If one do swear the Peace in Court against another that is doth make Oath that he goes in fear of his life or corporal hurt of him the party against whom this Oath is made ought to be committed if he do not find sureties for the Peace although there be no Articles exhibited and sworn against him Mich. 1652. B. S. Priviledge A Committee man of Parliament that is not a Member of the Parliament is not Priviledged from serving upon the grand enquest Hill 21. Car. B. r. A Clerk of this Court is not to be compelled to lay his Action out of that County where this Court doth sit Mich. 22. Car. B. r. By reason of the constant attendance he is bound unto in this Court No Priviledge is to be allowed to one that hath an Indictment preferred against him although he be a Peer of the Realm Mich. 22. Car. B. r. For an Endictment is at the sute of the King and against him no Priviledge is to be allowed One that was coming unto this Court to attend upon his cause was arrested as he was coming and was forced to put in Bail but upon a motion and making it so to appear unto the Court he and his Bail were both discharged Mich. 22.
before a Deed can be enrolled the party to the Deed doth acknowledge it before a master of the Chancery that the Deed to be enrolled is his Deed if the Deed be to be enrolled there or before a Judge of that Court where it is enrolled which is a sufficient authority to enroll it and to give credit to the Deed. A provisoe in a Deed which provisoe goes in destruction of the estate passed by the Deed must be punctually proved Mich. 1649. B. S. For the Law doth not favour things which sound in destruction of estates but such things as tend to the affirmance and preservation of them If a Place be named with an alias it is not necessary upon a tryal to prove both the names By Rolle Chief Justice Mich. 1650. B. S. Q Tamen For Crawley when he was Justice was of another opinion A Deed which is enrolled and is not acknowledged before a Master of the Chancery as a Deed which is enrolled act perpetuam rei memoriam and not to pass an estate may be must be Proved by Witnesses if it be given in evidence at a tryal Mich. 1649. B. S. For the acknowledging of it before the master is that which gives credit to the Deed and not the Endorsement of the Enrollment which is but the act of a Clerk in the Office A thing which is Proved to have been and continued for so long time as any one living can remember shall be presumed to have been beyond the memory of man and will be accounted a good prescription Pase 1650. B. S. 11. Maii. Because the contrary cannot be proved Plaint A Plaint is the cause which the Plaintiff doth express in the Writ for which he complains to the King against the Defendant and for which he doth obtain his Writ 21. Car. For as the King denys his Writ to none if there be cause to grant it so he grants not his Writ to any without there be cause alledged for it for as the King is bound to help them to right that suffer wrong so he is bound as much as in him lies to defend his people from causeless vexation A Plaint in an inferior Court is in the nature of an original Writ Pasc 1652. B. S. For therein is briefly set forth the Plaintiffs cause of Action Poor If the Father of Children do leave the Parish where he dwelleth and there is a Grandfather of the Children to be found this Grandfather if he be able is chargeable with the keeping of the Children and not the Parish Mich. 24. Car. B. r. For the tye of Nature is a neerer tye then the Law can or doth enjoyn Presentment A Presentment taken before Commissioners of Sewers was quashed because 1. it did not appear in the Presentment by what authority the Commissioners did sit that took the Presentment And 2. because it did not appear that any of the Commissioners before whom the Presentment was taken were of the Quorum Hill 1649. B. S. As is directed by the Statute that gives them their authority Parliament The Parliament is not accounted to begin untill the first day of the sitting thereof although Writs are returned and many adjournments may be before Pasc 1650. B. S. 21. Maii. The Writs mentioned are meant the Writs directed to the Sheriffs of the several Counties and to the Cities and Borrought to Elect Members for them to serve in Parliament Presidents If there be a special cause to alter the ancient President of a Writ the Cursitors are not to keep the old form but are bound to alter it as the case requires and if they shall refuse to do it this Court will compell them to it Trin. 1650. B. S. Else it would be very mischievous to the people who by that means may have their Writs abated and be put to the trouble and charge of purchasing of new Writs by reason of their willfulness and ignorance Prisoner and Prison One that is imprisoned upon a Capias utlagatum ought to be imprisoned as strictly as he that is in prison upon an Execution Trin. 1650. B. S. 3. Julii For he that refuseth to answer the Law offends in as high if not in a higher nature then he that is condemned by the Law and is to be punished as highly It is the course of the Court when a Prisoner is delivered over by this Court unto the Marshal of the Court to endorse the day of this delivery upon the back of the Writ Mich. 1650 B. r. 20. Nov. This Court may send for a Prisoner out of the Prison of the Marshal Sea without a Habeas Corpus because that Prison doth belong to this Court but they cannot send for a Prisoner out of any other Prison but by a Writ of Habeas Corpus By Rolle Chief Justice Mich. 1650. B. S. Possession If one do make an Entry into the Lands of another and that other doth notwithstanding the Entry keep the Possession of the Lands entred into with his servants and cattel the entry is no entry in Law but if the servants and cattel be put out to gain the Possession he that is put thus out of Possession if he will prove a Possession in himself after this he must prove an actual entry afterward Pasc 1650. B. S. 25. Ap. The proving of ones cattel to be upon the Land in question is not a sufficient proof that he whose cattel they were was in possession of the Land at that time when the cattel were there Pasc 1650. B. S. For the cattel might be upon the Land Dammage feasant Peremptory By the rules of the Court a Peremptory day is not to be given to the Defendant upon a Judgement given against him upon a non sum informatus at the first reading of the record but the Court will appoint a day to hear Councel Mich. 22. Car. B. r. If the Defendant do tender an issue in abatement of the Writ and the Plaintiff doth Demur upon the issue and upon arguing of the Demurrer the issue is over-ruled that is is adjudged by the Court to be no good issue the Defendant is onely to answer over that is to tender a better issue for the over-ruling of the former was not Peremptory to him Trin. 24. Car. B. r. But otherwise it is where such an issue and demurrer is in bar of the Action for there the merits of the cause is put upon it but in the former the validity of the Writ is onely in question and whether the defendant is thereby compellable to plead to the Plaintiff or not If a Peremptory be put off by the Court the party that will take advantage by the putting of it off ought to enter the rule of Court that was made for the putting of it off Trin. 1651. B. S. A Peremptery is when a business is by a rule of Court to be spoken unto at a precise day and if it cannot be spoken unto then by reason of other businesses of the Court the Court in such
is no place alleadged but an issue is joyned and the venire is de corpore comitasus and a Tryal is thereupon had this is good Tryal and there ought not to be a repleader Mich. 22. Car. B. r. For here is a good pleading and a good issue joyned and well Tryed and a repleader is to be onely where the Pleading is vicious and hath not brought the issue in question which was to have been Tryed If the Court do know that the Jury have given their Verdict against the evidence given unto them they may order a new Tryal to be in the case Mich. 22. Car. B. r. Q. Tamen For the Jury are upon their Oaths and it may be they know something of their own knowledge more then the evidence which moved them to give their Verdict so and the party against whom the Verdict is given is not without remedy for he may bring his Attaint against the Jury yet new Tryals have sometimes de facto been awardes in such oases There may be a good Tryal in a cause although the Defendants plea be ill Hill 22. Car. B. r. For the Tryal depends not upon the plea but upon the issue joyned and if there be a good issue joyned the Tryal is good what ever the plea be Where the Plaintiff will not try his cause after issue is joyned the Defendant may try it afterwards when he pleaseth Hill 22. Car. B. r. That he may free himself from the sute When the Defendants Atturney hath told the Plaintiffs Atturney what plea he will plead the Plaintiffs Atturney may give him warning for a Tryal although the issue be not made up in the cause Hill 22. Car. B. r. For after plea pleaded it is in the Plaintiffs choice whether he will reply or no for he may make up the issue when he pleaseth If a cause to be tryed be not entred into the Judges Book before whom it is to be tryed four dayes before the cause is to be tryed the Plaintiff may enter a ne receipiatur in the Judges book that it may not be entred after that to be tryed at that time if the Defendant please Hill 22. Car. B. r. If upon a Tryal to be had at the Bar the Jury be not ready at the day to try the cause the cause cannot be tryed at the Bar any other day of that Term without the consent of both parties Pasc 23. Car. B. r. For it would be too long to keep the Witnesses in Town to another day and if they should go out of Town it might be too short a time and too much trouble to bring them up again the same Term. The agitation of a cause in one Court is no cause to put off the Tryal of the same cause depending in another Court. Pasc 23. Car. B. r. For the proceedings of one Court of Law ought not to clash with the proceedings of another Court but it is not so betwixt the Courts of Law and the Chancery as it is a Court of equity The King may try his own cause in what Court he pleaseth Pasc 23. Car. B. r. By his prerogatine for they are all his Courts and it is not reasonable he should be streightned in his choice where he will proceed A local matter generally is not to be tryed in a foreign County but in the County where the cause of Action ariseth Pasc 23. Car. B. r. For there may the best knowledge of the matter be had and it is also for the greater ease of the people and less charge If one be committed to the Gaol for one Felony yet the Justices may try him for another Felony for which he was not committed Trin. 23. Car. B. r. By Bacon Justice A Decree in Chancery shall be tryed by a Jury and not by it self for it is not a Record but it is a Decree recorded Mich. 23. Car. B. r. And there is difference betwixt a Record and a thing recorded for a Record is a Judgement or other act recorded done in a Court of Record but the Chancery as it is a Court of equity is not a Court of Record but an arbitrary Court although it be a Court of Record as touching things agitated in the pettibag Office Although the Plaintiff after issue joyned and at the Assizes where he was to try his cause do enter a retraxit yet he may try the cause at the next Assizes after if he please for the retraxit doth onely import that he intends to forbear to try his cause hac vice onely and if he do not try it at the next Assizes after then the Defendant may if he will try it by provisoe and if the Defendant do not then try it by provisoe the Plaintiff may give new notice of a Tryal to the Defendant and try it at the next Assizes following Mich. 23. Car. B. r. One that is not served with process to give his testimony at a Tryal may not be examined upon a veire dire concerning any matter which concerns the Tryal Mich. 23. Car. B. r. A Tryal at the Bar ought not to be had for houses lying within the City of London Mich. 23. Car. B. r. If the Plaintiff give notice to the Defendant that he will try his cause that Term although it be not tryed at the day appointed yet he is not bound to give new notice of a Tryal if he try it any time within that Term for one notice is sufficient for the whole Term. Hill 23. Car. B. r. According to the old use of practice in this Court there ought to be but ten Tryals at the Bar in Easter Term. Pasc 24. Car. B. r. Because Tryals at the Bar are a great hindrance to other businesses which are more proper for the Court yet now they are encreased many times to donble the number If there be warning given for a Tryal and no Jury appear at the day there ought to be a new notice given if the party will try his cause at another day Pasc 24. Car. B. r. The consent of the owner of the Land to make one Ejector to try the title of the Land is good if it be not a plot betwixt him and the Ejector to oust the Lessee of the Land of his possession Mich. 24. Car. B. r. A Tryal at the Bar may not be had by the consent of the parties without leave of the Court Mich. 24. Car. B. r. For the Court is not bound Ex Officio to grant a Tryal at the Bar but it is in their discretion to grant it or not to grant it In a Tryal for substracting of tithes in an Action grounded upon the Statute of 2. Ed. 6. the Plaintiff ought first to begin with the proof of the value of the Tithes before he proceeds to shew his title to them Mich. 24. Car. B. r. It is a mis-tryal for a thing to be tryed before a Judge who hath interest in the thing in question and the request or consent of the
parties concerned in the Tryal will not help it Mich. 24. Car. B. r. For such a Tryal cannot be supposed to be indifferent for none ought to be Judge in his own cause A mis tryall is helped by the Statute of Jeofailes but not a voide Tryal to wit where there is no issue joyned to be tryed but in such cases there must be a repleader that the matter in question may be put in issue to be tryed Mich. 24 Car. B. r. The day for a Tryal ought to be entred into the Clerks book in the Office viz. the Clerk of the Papers Mich. 1649. B. S. And before it be so entred there ought not to be notice given at the Tryal Q. Tamen One that is a priviledged person in this Court ought not by reason of his priviledge onely to have a Tryal at the Bar granted unto him but there must be difficulty in the matter to be tryed or else it must be of great value Hill 1649. B. S. 4. Feb. A Tryal at the Bar ought not to be granted before the Defendant hath pleaded and issue be joyned Hill 1649. B. S. 11. Feb. 12. Feb. 1656. For before that the cause is not ready for a Tryal nor doth it appear that the parties intend to proceed to it Tryall Of latter times there hath been twenty Tryals granted to be at the Bar in Easter Term but not above Pasc 1650. B. S. 1. Maii. But anciently not above half the number Although the Defendant do go to a Tryal without sufficient notice given unto him of the Tryal and there be a Tryal accordingly this Tryal is not binding unto the Defendant but he may if he please have a new Tryal granted for want of due notice Pasc 1650. B. S. 19. Ap. For the Rules of the Court are not to be broken by the consent of the parties By the ancient practice of the Court all the Tryals at the Bar which are had in Easter Term ought to be tryed a fortnight before the end of the Term. Pasc 1650. B. S. 1. Maii. And the remainder of the Term was to be spent in other businesses more proper for the Court. In ancient times there were wont to be Tryals in Parliament by Juries but of latter times no such Tryals have been Pasc 1650 B. S. 24. Maii. The prosecutor in an information brought in this Court ought to bring the cause to a Tryal at his own costs but in an Endictment which is folely at the sute of the King he that is Endicted must bring the cause to a Tryal at his own charges Pasc 1650. B. S. 24. Maii. An information is preferred as well for the benefit of the informer as the King and therefore it is reason he should bring it to Tryal at his own charges If at a Tryal the Court do see that one of the parties is surprised but not by any fault or laches of his own but by some other casualty they may in their discretion put off the Tryal to another time untill the party surprised may be better provided for his Tryal Trin. 1650. 3. July B. S. For this is not to delay justice but to give time that clearer justice may be done In criminal causes Tryals may be at the Bar in Hillary Term and in Easter Term but not in other causes Mich. 1650. B. S. But onely in Michalemas and Easter Term. This was the old course but of late in some special cases Tryals have been granted to be at the Bar in Hillary Term and Trinity Term. The Court of Chancery will not stay a Tryal at Law by an injunction when the parties are ready for the Tryal and have expended their costs for the Tryal but after the Tryal they will grant an injunction to stay Judgement Pase 1652. B. S. If the Plaintiff in an Action of Trespass and Ejectment do bring his cause to be tryed at the Bar he cannot compell the Defendant to confess the Lease Entry and Ouster for the Tryal at the Bar was not granted in favor of the Defendant but of the Plaintiff but if the Defendant bring the cause to be tryed at the Bar there he must confess the Lease Entry and Ouster because the Tryal was granted to be at the Bar in his favor Pasc 1652. B. S. If a cause be appointed to be tryed in one Term and the Plaintiff doth not then proceed in his Tryal but rests for a year or more after if he will after so long time try the cause he must give the Defendant a whole Terms notice before his Tryal Pasc 1652. B. S. If a Tryal be had the last day of a Term Judgement cannot be entred upon that Verdict untill the next Term after By Rolle Chief Justice 1652. B. S. Nor till the four first dayes within the Term be passed for so long time hath the Defendant by the Rules of the Court to speak in arrest of Judgement It was said by Rolle Chief Justice that the City of Bristol will not bring a matter to be tryed here at the Bar no more then the City of London will 1654. B. S. If at a Tryal at the Bar in a Trespass and Ejectment the Plaintiff and the Defendant do consent that the Jury shall have a view of the Lands in question there can no Tryal proceed in the cause that Term. By Rolle Chief Justice 1654. B. S. It is not usual to grant a Tryal at the Bar the same Term it is moved for but the next Term after 1654. B. S. Yet sometimes upon special reasons it is done A voluntary Affidavit made before a Master of the Chancery is not to be given in evidence at a Tryal at the Bar. Pasc 1655. For a Master of the Chancery hath not authority to administer such an Oath and therefore if the party did swear falsly it is not perjury nor can he be endicted for it because it is Coram non judice and therefore such oaths are of little credit to be given in evidence If a Tryal be had and a Verdict thereupon given the same issue may not be tryed again by the Jury that tryed it before 1655 B. S. For it is more then probable they will give the same Verdict Traverse A Traverse ought to have an inducement to make it relate to the foregoing matter or else it is not good and formal Mich. 22. Car. B. r. If the Court shall change the venue and lay it in a County where the cause of Action did not arise the party may Traverse the County if he please and so draw the venue into the right County where the cause of Action did arise Trin. 23. Car. B. r. If one will take a Traverse to a Declaration he ought to Traverse that part of it that the doing thereof will make an end of the matter for which the Plaintiff declares and then is the Traverse good Pasc 24. Car. B. r. Where the Defendant hath given a particular answer in his Plea to all the material matters
contained in the Declaration there he needs not to take a Traverse Pasc 24. Car. B. r. Pasc 1648. B. S. For a Traverse is a denyal of a thing and when a thing is answered what need is there of a denyal of it Where there is a Disseisin and a descent alleadged in a Declaration if the Traversing of the Disseisin will make an end of all the matter there the Disseisin is to be Traversed and not the descent that is in such cases where by supposition the party may come to the estate by Disseisin Pase 24. Car. B. r. Where the Defendant hath confessed and avoided all the matter that is contained in the Declaration there he needs not to take a Traverse Pasc 24. Car. B. r. For a confessing and avoiding is a full answer of the matter alleadged and so there needs no Traverse of it Title If there be an Inquisition found by which the King is Intitled unto Lands and the Inquisition is not answered nor Traversed the Lands found in the Inquisition shall be suppossed to be in the hands of the Kings 21. Car. B. r. Because there appears nothing to the contrary to question the Kings Title If one be admitted to traverse an Office this admission of the party to the traverse doth suppose the Title to be in him 21. Car. B. r. If in an Action of Trespass and Ejectment neither the Plaintiff nor the Defendant can make out a good title then the party that hath had the most ancient possession of the Lands in question shall be judged to have the best Title Pasc 23. Car. B. r. Mich. 1649. B. S. For an ancient possession of Lands is a badge of a Title to them In Action of Trespass brought for taking away of goods the Plaintiff needs not set forth his Title to the goods Pasc 23. Car. B. r. For by the bringing of the Action and by the Declaration it is supposed that they were in his possession before the Defendant took them away from him and that possession is Title enough to maintain the Action He that is made Ejector to try the Title of Land is not bound to defend the Title of the Land if he whose Title is truely concerned will not save him harmeless if the tryal shall pass against him but he may confess a Judgement and save himself of the trouble which otherwise may befall him by being made Ejector Mich. 1650. B. S. The Officer of this Court whose title was to be called the Clerk of the Crown is now called and Intitled Coroner and Atturney for the Keepers of the Liberty of England by Authority of Parliament Mich. 1650. 24. Oct. B. S. But now that Title is also altred and he is called Coroner and Atturney for the Lord Protector Tenement A Tenement may be said to be any House Land or other such like thing which is any way held or possessed and it is a word of a very large and ambiguous meaning and therefore not fit to be used to denominate or express any thing which requires a particular description 21. Car. B. r. Tipstaff The Court will not grant an Attatchment against an Officer of the Court for a misdemeanor committed by him as an Officer of the Court but one of the Tipstaffs which are Officers of this Court called by that name by reason of a staff which they carry tipped with silver is to bring him into the Court. 21. Car. B. r. And they are in the nature of Messengers or Pursuivants c. If a Sheriff do commit a misdemeanor in relation to the Court during his Office and afterwards a new Sheriff is elected whereby the old Sheriff is out of his Office the Court may grant a Tipstaff to bring him in to answer the misdemeanor for being out of his Office the Court cannot fine him for his misdemeanor Pasc 24. Car. B. r. A Tipstaff is to be granted for one that is in London or Westminister but if he be in the Country an Attatchment is to be granted and not a Tipstaff Hill 22. Car. B. r. 23. Car. Pasc 1650. For the Tipstaffs are Officers to attend the Court and are not therefore to be sent out of Town Treason An intention of Treason if it can be proved by circumstances is Treason in the eye of the Law Trin. 22. Car. B. r. To shew the odiousness and greatness of the offence of Treason by punishing the very intentions of it which are not punishable in other offences criminal Time Where the Law doth not imply a certain Time for the doing of a thing nor is there any certain time agreed upon between the parties for the doing it there the Law doth allow the party a convenient Time for the doing of it Mich. 22. Car. B. r. To wit such as shall be adjudged reasonable In some cases one hath time during his life for the doing of a thing if he be not hastened to do it by request of the party for whom it is to be done but if he be hastened by request then he is bound to do it in convenient Time after such request made Hill 22. Car. B. r. Trespass An Action of Trespass doth lye for him that hath the possession of goods or of a house or Lands if he be disturbed in his possession Mich. 22. Car. B. r. If goods be taken by the Sheriff in Execution and the goods be rescoued out of his hands an Action of Trespass lies against him that did rescue the goods Hill 22. Car. B. r. viz. By the Sheriff or by the party at whose sute they were taken and the party may be endicted for a rescous also at the sute of King for disturbing the peace and hindring the Execution of the Law One Action of Trespass may be brought for a Trespass committed in Lands which lye in several Towns or Vills Pasc 23. Car. B. r. So that those Vills do lye in one and the same County An Action of Trespass doth lye for a Parson against him that doth take away his Tithes after they are set forth Pasc 23. Car B. r. For after they are set forth the person hath a property in Law in them although the Parson never had an actual possession of them If divers Actions of Trespass be brought for one and the same cause with an intent onely to vex the Defendant if the Court be moved in it and proof thereof made by Affidavit the Court will order the Plaintiff to joyn all his Actions into one Pasc 23. Car. B. r. For the Judges of the Law do not favor unjust vexations of the people If one do carry another with force into the house of a third person he who carries the other by force into the house is the Trespassor unto the third person and not he who is carryed thither by force and so if one do drive my cattel into the ground of a third person he that drives my cattel into the ground is the Trespassor and not I who am owner of
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
the Lady Anne Holborne a Juror was Challenged because he was retorned by the Name of Mathew whereas in truth his Name was Mark although he was also called Mathew as he affirmed being examined upon a voire dire to say what his Name was and upon this Challenge the Juror was drawn and the Jury could not be taken for want of him but a tales was granted It is neither a principall Challenge nor a Challenge for favour to say that the Juror challenged was a supernumerary Juror in a former Jury retorned for the same parties in a Cause betwixt them and did receive money for his charges of the party for whom the verdict passed By Glynn Chief Justice Certiorary It is not necessary to have a Judges hand to a Writ of Certiorari to certifie a Writ of Error 21. Car. B r. A Certiorari to remove an Endictment doth lye by the course of the Court without moving the Court to it Mich. 22 Car. B. r. After a Writ of Error is brought there must be a Writ of Certiorari directed to the Court where the judgment was given for the reversing whereof the Writ of Error is brought to certifie the record into this Court Mich. 22. Car. B. r. A Certiorari to remove an Endictment is good although it doe bear date before the taking of the Endictment which is to be removed by the Certiorari Mich. 22. Car. B. r. For the date is not materiall When a certificate of a Record is made out of an inferior Court they ought to make the Certifiâ—ate as they will stand to it at their perill and it cannot be afterwards amended Hill 22. Car. B. r. For a Writ of diminution is not grantable to an inferior Court Q. This Court will upon motion grant a Certiorari to remove a judgment given in an inferior Court to the intent that the Plaintiff may have a Scire facias against the Defendant to shew cause why he should not have execution upon his judgement Hill 22. Car. B. r. This was done in the Case of Rooke against Knight to remove a judgement given in Dymchurch a member of one of the Cinque Ports in Kent upon the motion of Lancelot Johnson of the Inner Temple The Justices of Assize may certifie to this Court if a Jury doe finde a verdict against the evidence given them Pasc 23. Car. B. r. That judgement may not be speedily entred upon such a verdict It was doubted whether a Certiorari do lye to the Cinque Ports Pasc 23. Car. B. r. Notwithstanding it was done in the Case of Rooke and Knight If one party pray a Certiorari and have it granted the other party cannot have another Certiorari Pasc 23. Car. B. r. viz. For the same thing If there be cause to certifie the Court touching a custome used in the City of London this Certificate is not to be made in wrâ—ting but the Recorder of London is to certifie the Custome to the Court ore tenus or by word of mouth Trin. 23. Car. B. r. But not if the Custome do concern the Lord Major particularly By Rolle Chief Justice When Justices have authority given them by a Statute within a Liberty a Certiorari lyes to them if the Liberty be not excepted Hill 23. Car. B. r. A Certiorari ought to be granted upon a matter in Law only and not upon a matter of fact Pasc 23. Car. B. r. Out of an inferiour Court the original Record ought to be certified into this Court upon a Certiorari directed to them upon a Writ of Error brought to reverse their judgement but the Common Pleas do only certifie a transcript of the Record before them Trin. 24. Car. B. r. The Pronotaries of the Common Pleas will not make a certificate of any matter before them unto this Court without a Rule of this Court to enjoyn them Trin. 24. Car. B. r. A Certiorari ought to be directed to the Custos brevium and to be retorned by him and is not to be directed to his deputy or retorned by him Mich. 24. Car. B. r. A Certiorari doth not lye to remove a Cause after a verdict is given in it Mich 24. Car. B. r. For then the Cause is determined If a Certiorari to certifie a Record be by some mishap so torn or defaced that the Record cannot be perfectly certified by it the party may have an alias Certiorari Mich. 24. Car. B. r. Vpon motion to the Court. A Certiorari may be granted to remove an Act of Common Councel of the City of London if the Act be made against the Law 6. Maii. 1650. B. S. The Court may grant a new Certiorari to remove a Record before them upon a Writ of Error brought after that in nullo est erratum is pleaded if it be ad informandum conscientiam in affirmance of the judgement but at the prayer of the party that brings the Writ of Error and after in nullo est erratum pleaded they will not do it Trin. 1651. B. r. For judgements are favoured in Law and are to be supported as much as justice will permit Rolle Chief Justice said That he did not use to grant a Certiorari to remove an Endictment but where the party that prayes it doth shew good cause why it should be granted viz. that there cannot be an indifferent tryal had in the County where the Endictment was found And where he doth grant it he orders that it shall be tryed the next Terme following B. r. 24. Car. A Certiorari ought not to be granted to remove an Endictment after the party endicted hath traversed and pleaded to the Endictment By Rolle Mich. 1654. B. r. A Certiorari to remove an Endictment ought not to be made by any of the Clerks in the Capital Office without moving the Judges in it and obtaining a Judges hand to it and a Warrant from the Master of the Capital Office Customes The Customes of London are confirmed by Magna Charta C. 9. Customes which are unreasonable are not good nor to be allowed Trin. 22. Car. B. r. Any Custome which may be intended to have had a lawfull beginning is a good custome 11. H. 7. 14. Mich. 24. Car. B. r. Any thing which may be good and lawfull to be done which had its original from the Consent and agreement made betwixt parties may be good and warranntable to be done by vertue of a Custome Mich. 23. Car. B. r. By the Custome of London an Action upon the Case doth lye against one for calling a woman Whore Hill 22. Car. B. r. But she must be an Inhabitant of London But Q whether it lye or not for by the Common Law it lyes not and Bacon Justice thought the Custome not good And quere it lye for a lodger The Customes of the Universities are confirmed by Act of Parliament Pasc 23. Car. B. r. The Customes of London if there be a question in this Court whether there be such Customes or not are to be
may either have an Alias Capias against the party that Escaped to take him again in Execution or an Action upon the Case against the Sheriff that suffered him to Escape Mich. 23. Car. B. r. An Escape in one place is not an Escape all England over 6. Nov. 1650. B. S. Extent Lands in the hands of a Trustee may be extended for a Debt due to the King Hill 23. Car. B. r. Q Whether they are extendable for any other Debt Escheator The King may by his special Commission make one or more Deputies Escheators to find an Office and this is used to be done after the death of a Noble man or other person of great quality Pasc 24. Car. B. r. Fine A Fine for a licence of Alienation to alien Lands held in Capite is to be paid in Chancery for there is the pardon for Alienation of such Lands without licence to be sued forth 21. Car. B. r. If an Officer of this Court do not give his due attendance upon the Court as his place requires the Court may set a Fine upon him for his neglect Trin. 22. Car. B. r. This Court may set a Fine upon the Clerk of the peace who returns an Endictment into this Court upon a Certiorari directed to remove the Endictment into this Court if the Endictment be not good in matter of form Trin. 22. Car. B. r. For it shall be intended that it was his negligence that the Endictment was not well drawn for it shall not be presumed that he can be ignorant in the form of drawing Endictments The Court cannot set a Fine upon a Sheriff that is out of his Office Mich. 22. Car. B. r. For then he ceases to be an Officer of the Court. If the Conusee of a Fine levyed of Lands do pay mony unto the Conusor of the Fine at the time of the Fine levyed and there is no use declared to lead the use of the Fine levied of these lands the Law will construe the Fine to be levyed of these Lands to the use of the Conusee to whom the Fine is levyed but if there be no money paid by the Conusee nor any use declared the Fine shall enure to use of the Conusor that levyed the Fine Pasc 23. Car. B. r. For nothing appears whereby it can be supposed that the parties had any intention the estate in the Lands should be altred by the Fine but that the Fine was levyed in Corroboration onely of the title of the Connsor If Justices of peace do proceed upon an Indictment after a Certiorari out of this Court is deliveed unto them to remove the Endictment into this Court This Court may set a Fine upon them for their contempt to this Court Hill 23. Car. B. r. This was done heretofore in the Case of Sir John Sedly and Sir Thomas Stile two Justices of the peace of the County of Kent If a Habeas Corpus do issue out of this Court and the party to whom it is directed do make an insufficient return of it this Court may set a Fine upon the party for making this insufficient return Pasc 24. Car. B. r. A Fine and recovery cannot destroy an estate executory which depends upon contingencies but it will destroy a Remainder Q. Pasc 24. Car. B. r. If part of a Fine that is set upon one that is convicted upon an Endictment or information for an offence done by him contrary to a Statute do belong to a subject as it may if the Statute do so direct all the fine set upon the party ought not to be estreated into the Exchequer Pasc 24. Car. B. r. But the Kings part onely ought to be estreated A fine sun Cognisance de droyt come ceo que il ad de lour done c. levyed of Land doth admit the possession of the Lands of which the Fine is levyed to pass by the Fine but a Fine come droyt levyed of Lands doth only pass the right of the Conusor in the Lands of which the Fine is levyed Mich. 1649. B. S. A Fine sur Cognisance de droyt come ceo c. is a Fessment upon Record of the Lands comprised in the Fine and doth imply a Livery and Seisin to be made of those Lands Hill 1649. 29. Jan. B. S. A Fine of twenty nobles was set upon one for bringing an Attaint against a Jury after the Jury had been formerly acquitted Hill 1649 4. Feb. B. S. A Fine set upon one which is voideable that is may be avoided is not void absolutely but continues to be a good Fine untill it be avoided by the Plea of the party that is Fined Pasc 1650 4. Feb. B. S. One may declare the use of a Fine by Paroll and if there be such a Declaration by Paroll made to lead the use of a Fine and it be defective to declare the intent of the parties it may be afterwards supplyed and made good by subsequent Parolls 8. Nov. 1650. B. S. Filing of Process or other thing A Capias that is duly sued forth may be filed afterwards and it is not necessary to File it at the time when it is taken forth 21. Car. B. r. For the Fileing of it doth contribute nothing to the essence of the Writ A Declaration may be Filed in the Office after a Writ of Error is brought to reverse the Judgement given in the cause wherein that Decleration was given and so is it of a Warrant of Atturney Pasc 24. Car. B. r. For the Defendant is at no prejudice by the filing of them and he did take notice of them as appears by his pleading and going to issue with the Plaintiff Affidavits which are not read in Court may not be filed there untill the secondary hath made his report in the cause touching which such Affidavits were made but if they be read in Court they may be presently filed Trin. 24. Car. B. r. For the Court takes no notice of them untill they be read in Court An original Writ may be Filed after Judgement given in the cause for which it was sued forth if it were sued forth before the Judgement given Trin. 1650. 26. Junii B S. The Court will not compell the Plaintiff to sile a venire facias after a Verdict if the venire will make an Error for if there be no venire that defect is helped by the Statute of Jeofailes but if there be a venire and that venire is erroneous this is not helped by the Statute Trin. 1651. B. S. False Latine and Form The Court doth use to amend False Latin and Form in Bills presented unto them by the grand Enquests every Term by their licence and consent but the Court cannot amend matter of substance in them Mich. 22. Car. B. r. For that were to make new Bills Forma Pauperis If one that is admitted to sue in Forma panperis will not proceed according to the Rules of the Court but useth delayes to vex his adversary the Court will Dispauper him
Car. B. r. A Tenant that is within the distress of a Lord of a Mannor or Leete ought not to serve upon a Jury in a Cause that concerns the Lord Mich. 23. Car. B. r. For it shall be presumed he may not be indifferent in regard of fearing to displease his Lord. After a Juror is sworne he may not go from the Barr untill the evidence be given and the directions of the Court for any cause whatsoever without leave of the Court and although he have leave he must have a keeper with him Pasc 24. Car. B. r. If a Juror be challenged and the Challenge entred by the Secondary that Juror cannot be after that sworne as a Jury man to try that Cause wherein he was challenged viz. at that tryall 24. Car. Pasc B. r. Q. Whether before the Challenge entred he may be sworn Where a tryall is to be for a thing that concerns the Under-Sheriff there the High-Sheriff shall retorne the Jury Trin. 24. Car. B. r. For here shall be no favour supposed but if the tryall concerne the High-Sheriff the Vnder-Sheriâ—… shall not retorne the Jury for there may be presumed to be favour for the servant depends upon the master and not the master upon the servant The Jury ought not to have any writting with them when they go from the Barr which hath not been proved although such a writting hath been given in evidence unto them Mich. 24 Car. B. r. The Jury may finde matter of Record if they do know it of their own knowledge Pasc 1650. B. S. 10. Maii. For a mans own knowledge is more certain than any evidence can be given There are three grand-Juries retorned every Term to serve in this Court every Jury consisting of 16 17 18 19 or 20 Jurors or more Though a man be very aged yet if he be of an able body and not infirm he is not to be excused from serving upon the grand Jury One _____ Butler a man of 72. years of age was denied by Rolle Chief Justice to be excused to serve because he was of an able body Hill 1651. B. S. One that hath no Freehold in the County or is a Constable or a Surveyor of the high-way or is a sequestred person are not thereby to be excused from serving upon the grand Jury Pasc 1651. B. S. By Rolle Chief Justice But Q. of a sequestred person The Jurors that appear at a tryall shall not have their charges allowed them if the Cause be not tryed for want of Jurors Pasc 1652. B. S. For their apparance is to no benefit of any body When a Juror is withdrawn he is strook out of the panell by the Secondary Upon a generall issue the Jury may finde a Record but not upon a nul tyell Record Pleaded 1651. If but eleven of the Jury be sworne if the twelfth man do stand by and hear all the evidence that was given to his fellowes he may be sworne afterwards and pass upon the tryall By Rolle Chief Justice 1654. Pasc B. S. For the Jurors are sworne to try the issue upon the evidence they shall hear so that it seems the time of being sworne is not materiall whether before or after the evidence Q. The Jury may take Depositions taken in Chancery and exemplified there given in evidence to them from the Barr with them but if they be not exemplified they may only look upon them in Court but not take them with them out of the Court 1654. B. S. For to see them is no more then to hear them read Issue Every Issue is to be joyned in such a Court that hath power to try it otherwise the Issue is not well joyned 21. Car. B. r. For if the Cause cannot be tryed the issue is fruitless If an Action of Trespass be brought against two for entring into the Plaintiffs Land and one of them pleads that the Land is his freehold and the other that he entred into the Land by the commandment of him that pleads it is his freehold here is to be but one Issue joyned 21. Car. B. r. For but one of the Defendants claimes an interest in the Land and the other justifies but as a servant unto him and if the tryal pass for him that claimes the interest there is no colour of Action to be maintained against the other If there be a Demurrer to an evidence and the party whose evidence is demurred unto do plead to the demurrer and joyn Issue with the Defendant upon it this Issue must not be joyned upon a matter in fact in the evidence but that must be agreed or else the Issue is not well joyned for the Court are not to try matter of fact for that would be for them to give a verdict Mich 22. Car. B. r. Whereas the Court are only to declare the Law whether admitting that all the matter given in evidence by the Plaintiff be true it doth prove the Issue in question or not By the Rules of the Court if the Plaintiff will not try his Issue after it is joyned in such time as he ought by the course of the Court to do the Defendant may try it by Proviso if he will Hill 22. Car. B. r. That he may free himself if he can of the danger and trouble he may be subject to by the depending of the Action brought against him and to recover his dammages for his unjust vexation A judgment may be entred as to one part of an Issue and a nolle prosequi to another part of the same Issue Pasc 23. Car. B. r. This is only where the Issue may be divided Where there is a demurrer to part of an Issue and the other part of it remains to be tryed by a Jury the Tryal of it may be either before or after the arguing of the Demurrer at the Election of the Plaintiff Pasc 23. Car. B. r. For the Demurrer and the Issue have no depondancy one upon the other Every issue ought to be joyned upon the most material thing in the Cause depending that all the matter in question between the parties may be tried Hill 23. Car. B. r. For else the triall will prove to little purpose If an Issue be once joyned between the parties this Issue cannot afterwards be waved except both parties do consent unto it although the Issue be but in paper and not engrossed in parchment Trin. 24. Car. B. r. Therefore it is good to be well advised before the Issue be joyned The place ought not to be made part of the Issue in a transitory action Trin. 24. Car. B. r. For the place is not material as it is in a real and mixt action An immaterial Issue joyned which will not bring the matter in question to be tried is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader 26. Jan. Hill 1649. Pasc 1650. 4. Maij. B. S. For this is matter of substance For if there was no Issue there could be no Verdict
Plaintiff but by agreement made afterwards betwixt the Plaintiff and him of which the Court doth not take notice except they be moved in it An Obligation cannot be delivered as an escroe unto the Obligee himself but it may be delivered to another to the use of the Obligee as an escroe Trin. 24. Car. B. r. For the very delivery of it to the Obligee himself and his receiving it makes it work as a Deed in the very instant of the delivery of it according to the effect of the Deed but being delivered to another to the use of the Obligee it cannot operate so because he is no party to the Deed nor can take any thing by it and doth but only take it as an escree and as an instrument to deliver it to the Obligee at such time and in such manner as the Obligor shall direct and if he deliver it otherwise the Obligor may plead non est factum if he be sued upon it by the Obligee If one be bound unto J. S. in an Obligation of twenty pound to be paid unto J. D. this Obligation is not good Trin. 24 Car. B. r. For to J. S. it cannot be good for the Obligor is not bound to pay him the twenty pound in which he is bound for the solvendum is to J. D. and to J. D. it cannot be good for if he pay him not the twenty pound he cannot sue for it For the Obligor is not bound unto him by the Obligation and so the Obligation is void to all intents If money be not paid according to the Condition of an Obligation the Obligation doth thereby become a single Obligation that is it shall be taken as an Obligation without a Condition for the benefit of the Condition which the Obligor might have taken advantage of by the paiment of the money according to the Condition is lost by the not paying of it and so the Obligation rests in force as if it had no Condition Mich. 24. Car. B. r. An Obligation is a good Obligation although it do want a date Hill 1649. B. S. 8. Feb. For the date is not of the essence of the Deed but the sealing and delivery of it For if the sealing and delivery of it be proved although the time precisely of the doing it cannot be proved yet it is a good Deed. Orders This Court may quash any Orders made at any publick or private Sessions of the Peace or made by any other Commissioners if they see good cause for it Mich. 22. Car. B. r. For this Court is the superintendent Court over all other Courts and is to regulate their proceedings where they be irregular and illegal If a Cause be put in the paper of Causes that it may be spoken unto in matter of Law by the Order of the Court and the Attorney in the Cause doth not attend the Cause at the day the Cause is to be put out of the paper and not to be put in again that Term. Mich. 22. Car. B. r. Except very good cause be shewed to the contrary This Court doth not take notice of Orders made in Chancery Trin. 23. Car. B. r. Nor in any other Court as to be bound by them but will proceed according to the Rules and Orders of this Court By the Orders of this Court the three last dayes of the Term the Judges have no paper of Causes either of Records or Conciliums delivered unto them for those three dayes are to hear motions Trin. 23. Car. B. r. That is the three last dayes of Hillary Term and Trinity Term which are Issue Terms for the two last dayes of Michaelmas Term and of Easter Term only are for motions Tuesdayes Thursdayes and Saturdayes are the proper dayes by the Orders of this Court to hear matters of Law Mich. 1649. B. S. But chiefly Saturday Outlawry The Court will not reverse an Outlawry although both the parties consent to it viz. the party outlawed and the party at whose sute he is outlawed except there be errour assigned in the Outlawry Mich. 22. Car. B. r. For matters of Record are not to be destroyed without sufficient cause and the Outlawry also doth concern the King as well as the Parties An Outlawry which is grounded upon an Endictment grounded upon the Statute against forcible entries preferred against divers persons may be reversed as to some of the parties endicted and yet may stand good as to others that are outlawed upon the same endictment Hill 22. Car. B. r. For the Outlawries against them are several and not entire and the proceedings to the Outlawry may be good as to the Outlawing of some of them and the proceedings to the Outlawry as to others may not be good An Outlawry that doth not express that the party outlawed was proclaimed as he ought to be is not good but may be reversed Trin. 23. Car. B. r. If the Defendant do not appear upon the quinto exactus made by the Sheriff of the County at his County-Court in the County where the Defendant doth dwell then he is outlawed by the Coroner Pasc 1650 22. Maij. B. S. For the Coroner is the chief Officer in criminal matters in the County Office and Officer The chief Cryer of this Court hath his Office by Patent from the King and this Office may be granted in resersion Pasc 23. Car. B. r. For the Court is the Kings own proper Court where himself used to sit in person and it is for his honour to have such Officers by Patent who are upon the matter to attend his own Person and not to leave them to be disposed of by others and it may be granted in reversion because it is but a ministerial place The Office of Assurance cannot assure the life of one that hath an Office for his life as it may do the life of one that is at Sea or beyond Seas and imployed in Merchants affairs Mich. 1649. B. S. For they have no power to assure the life of any but in case of Merchants affairs by the Statute which gave them their power which is the Statute of 43. Eliz. Oyer of a Deed c. If one be sued upon an Obligation he may pray Oyer of the Obligation and before he hath Oyer of it he is not bound to plead to the Plaintiffs Declaration yet he may plead without Oyer of it if he please But if he do plead without Oyer of it he cannot after his pleading wave his plea and demand Oyer of it 18. April 1650. B. r. To demand Oyer of the Obligation is not only for the Defendants Attorney to desire the Plaintiffs Attorney to reads the Obligation unto him as the word Oyer seems only to import or to have a sight of it but that he may have a Copy of it that his Clyent may consider by it what to plead to the Action Plaint THe Plaint is the Cause which the Plaintiff doth express in the Writ for which he doth complain to the King and for
ruled to put in a better Plea but upon over-ruling of a Plea which is Pleaded in bar of the Action Judgement shall be given against the Defendant for such a Plea is peremptory Trin. 24. Car. B. r. But a Plea in abatement is onely dilatory and is not to bring the matter in question to an Issue but to delay the Plaintiff If a Plea be put into the Office in due time it is well enough although it be not delivered to the Atturney of the Plaintiff Trin. 24. Car. B. r. So that he may not enter Judgement for want of a Plea In an Action of Debt brought for Rent upon a Indenture of Demise for years the Defendant may Plead payment without shewing the Deeds for the Lease shall be intended to be in being at the time of the Action brought Trin. 24. Car. B. r. A colourable Plea ought to be entred but that which is no Plea ought not to be entred Trin. 24. Car. B. r. For a Colourable Plea is a Plea untill it be over-ruled Q Whether one may Plead a Lease for years by Indenture without shewing the Indenture Trin. 24. Car. B. r. In an Action of Debt brought upon an Obligation the Defendant is not bound to Plead untill he have Oyer of the Condition of the Obligation Trin. 24. Car. B. r. But he may Plead without Oyer of it if he please and if he do Plead without Oyer he cannot afterwards have Oyer of it If one Plead a Plea that is not good and the Plaintiff doth demur upon it he cannot afterwards amend that Plea without the Plaintiffs consent Mich. 24. Car. B. r. For the Defendant shall not take advantage of his own ill Pleading to delay the Plaintiff and to put him to more trouble then by the Law he may do A Dilatory Plea ought to be Pleaded upon the giving of the first rule in the Office for the Defendant to Plead and a Plea in the chief must be pleaded after the second Rule given in the Office for the Defendant to Plead and this is the reason that Judgement cannot be entred against the Defendant for want of a Plea untill the time given by the two rules to Plead be past Mich. 24. Car. B. r. The ancient course of practice was for the Defendant to put in his Plea into the Office before that the Defendants Atturney did deliver it to the Plaintiffs Atturney Mich. 1649. B. S. The Master of the Office of the Upper Bench ought not to suffer the original Pleas to be delivered out of the Office but onely Copies of them Mich. 1649. B. S. For by the Pleadings in the Office are the Pleadings made up for the Issue to be tryed and if any question arise about altering of them they are to he examined and rectified if any alteration be by the Pleas in the Office A Plea that is grounded upon a Statute if it be not good is not helped after a Verdict Mich. 1649. B. S. For the Statute being the foundation of the Plea if it be not well laid the Plea is naught in the very substance of it and such Pleas are not helped by the Statute of Jeofailes If an Action be brought in this Court to recover Lands and the Defendant emparls yet he may as it hath been held Plead that the Lands in question are ancient Dernesne and demand Judgement whether this Court may hold Plea of them but if he plead to the Defendant and make a full defence he cannot after that plead to the jurisdiction of this Court Mich. 1649. B. S. 8. Ap. 1650. B. S. Pasc Q. For it hath been doubted and held it could not be after Imparlance Pasc 1650. 4. Maii. If the Plaintiffs Atturney deliver an imperfect Declaration to the Defendants Atturney and he accept of it yet he is not bound to Plead untill the Plaintiff have perfected his Declaration Mich. 1649. B. S. For untill it be perfected it is no Declaration Q. Whether he may not demur to it If it be doubtful between the parties whether a Plea be good or not it cannot be determined by the Court upon a motion made that the Court would deliver their opinions whether it be good or not but there ought to be a Demurrer upon the Plea and upon hearing of arguments thereupon the Court is to judge whether that Plea be good or bad Hill 1649. B. S. Jan. 26. If an indenture be onely Pleaded by way of inducement it is not necessary to say per indenturam suam in curia hic prolat but if the party do derive any title unto himself by the indenture Pleaded he must Plead it so Hill 1649 B. S. Jan. 26. That the Court may judge whether the title he makes by the Indenture be warranted by it and that the other party may consider what answer to give unto it If an Action be laid in London and be afterwards removed by a Habeas Corpus into this Court the Defendant ought to Plead the same Term the cause is removed and proceed to a tryal Hill 1649. B. S. 9. Feb. For the Court will not grant the party to take any advantage by the removing of the cause hither to delay the other party in the course of his proceedings If an immaterial Issue be joyned it is not helped by the Statute of Jeofailes but there ought to be a repleader Pasc 1650. 5. Maii B. S. vid. Issue A Plea that the Plaintiff hath not taken the Engagement according to the late Act ought to be Pleaded in this manner petit advisamentum curiae si volunt procedere quia querens non subscripsit engageamento And when the Plaintiff hath subscribed the Engagement and made it appear to the Court that he hath done it it shall be entred upon the Roll Quod querens subscripsit engageamento and then the Plaintiff may proceed It may also be averred upon the Roll that the Plaintiff hath not taken the Engagement although he have Judgement in the cause and thereby Execution shall be stayed untill he have subscribed it Trin. 1650. B. S. 3. July Now all this Pleading is out of doors by the taking away the Act made for the subscribing of it by an order of the Protector and his Councel If the Defendants Plea do not answer all the matter contained in the Plaintiffs Declaration it is no good Plea but the Plaintiff shall have his Judgement intire against him for want of a Plea although the Declaration be nought in some part of it Hill 1650. B. S. 31. Jan For although the Defendant was not bound to have Pleaded to the Declaration but might have Demurred unto it for the insufficiency of it yet the Defeudant not doing it it shall be intended he had no cause for it and then not Pleading Judgement may be entred against him When a Plea is Pleaded the Atturney ought to set his hand to the Plea and then the Issue is joyned and if he will not set his hand to the Plea Judgement may be entred
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
Car. B. r. And the party that arrested him had been also punished had he not pleaded that he knew not that the party came about his business depending in the Court. One may have a Priviledge in the Land of another by prescription although he hath no title to the Freehold or soil Pasc 23. Car. B. r. For although he now have it by prescription it might arise originally by grant and whatsoever lies in grant may be claimed by prescription One that is Priviledged in this Court ought not thereby to claim his Priviledge to have a tryal at the Bar for to try the title of Lands which he claims in reremainder Trin. 23. Car. B. r. For it is incertain whether the remainder may fall whilst he continues a Priviledged person and for the present he claims no present interest in the Lands Nay though he had a present claim to them yet he ought not to be so Priviledged if the Lands in question be not of a great value or else the title very difficult to be tryed and in such cases any other person though not Priviledged may have a tryal at the Bar. A Priviledged person shall not be allowed his Priviledge upon a motion for it to the Cours but he must appear and plead his Priviledge and upon his pleading it he shall be allowed it Mich. 23. Car. B. r. A Philisers Clerk did claim to be Priviledged in this Court but was denyed it Mich. 23. Car. For though the master may be Priviledged yet the Court takes no notice of the servant The Lord Major of the City of London is Priviledged from all Actions during his Maioralty in regard of his Office except it be for Felony or Treason or Actions which concern Free-hold Pasc 24. Car. B. r. For these are matters of a high nature and it much concerns the Publicke to have speedy Justice to be done in them A Member of Parliament is Priviledged as well in his Lands and goods as in his person By Rolle Chief Justice Mich. 24. Car. B. r. In the Case of the Lord Moon for by being disturbed in any of them he is hindred in serving of the Commonwealth An Atturney of this Court may Plead his Priviledge here after he hath made his defence in the cause in another Court. Pasc 1650. B. S. 4. Maii. For his pleading there doth not take away his Priviledge here but doth onely dispence with it for that time The wife of an Atturney of this Court cannot claim her Priviledge as his wife for the Priviledge is inseperabley annexed unto his person Pasc 1650. B. S. 7. Maii. But if she be arrested her husband must put in Bail for her An Atturney of this Court that is sued as an Executor is not to be Priviledged for he is sued in the right of the Testator and not in his own right Pasc 1650. B. S. 7. Maii. The Prayer of Priviledge is not properly a plea for a Priviledged person did anciently demand his Priviledge by Writ but of latter times the party hath been admitted to his Priviledge upon his prayer to the Court. By Latch Apprentise 1654. B. S. Party and Privy Where one desires to be made a party to defend the title of the Land in question in an ejectione firmae the Court will grant it so that he will confess Lease Entry and Ouster Pasc 23. Car. B. r. In Prince and Warners Case 2. Maii. 1648. But now that rule is enlarged for he must now confess Lease Entry and actual Ouster and must not except against the Jury for want of Hundreders but insist onely upon the tryal of the title and if at the tryal he do not all this then Judgement is to be entred against the Lessors owne ejector Purchase An Alien cannot purchase Lands in England because by this means the Realm would be impoverished by transporting the treasure out of the Realm into foreign Countries and by putting thereby part of the Lands of this Realm that is to say the Lands Purchased by the Alien under the power of a foreign prince Pasc 23. Car. B. r. Praescriptions One cannot prescribe to have two several wayes by one joynt Prescription but he must make several Prescriptions for them Trin. 23. Car. B. r. Two Tenants in Common cannot Prescribe for one Warrein Trin. 23. Car. B. r. That is severally for they cannot both have it severally A Copy-holder for life cannot Prescribe against his Lord by reason of his Copy-hold but a Copy-holder in Fee may Prescribe for he holds his Copy-hold in the nature of an inheritance Mich. 6. Nov. B. S. 1650. Parish A Parish may comprise many Vills within it Hill 23 Car. B. r. 24. Car. Pasc Yet generally a Parish shall not be accounted to have any more then one Vill in it except the contrary be shewed Hill 23. Car. B. r. It shall not be intended that there is more then one Parish in a City except the contrary be made to appear Trin. 23. Car. B. r. For some Cities have but one Parish If the father of poor children leave the Parish and leave his children in the Parish if the children have a Grandfather in the Parish that is able to keep them the Parish is not bound to maintain them but the Grandfather Mich. 24. Car. B. r. If a High-way lye within a Parish the Parish within which it lyeth is bound to repair it of common right if it do not appear that some other persons are bound by Law to repaire it Mich. 1650. B. S. 24. Oct. For it shall be intended that the Parishioners where it lyes have the greatest benefit of it and do make the most use of it Presentation If the King do present to a Church by Laps where he ought to present pleno jure and as Patron of the Church such a Presentation is not good Hill 23. Car. B. r. For the King is deceived in his grant The King may present to a Church by his letter sent to the Ordinary to institute and induct such an one his Clerk to the Living Mich. 1649. B. S. Q. Whether he may do it by Paroll and it seems to me he may for a letter is but a signification of his pleasure which he may as well signifie by word as by writting Principal and Accessory One that is present and aiding to the stabbing of another is not a Principal but only an Accessory to the stabbing within the Act of 1. Jac. that made stabbing to be murder Hill 23. Car. B. r. Proof Although a record of a thing be lost yet the matter may be proved by circumstances to a Jury Pasc 24. Car. B. r. For the right doth not wholly depend upon the Record but a Record is to make the right more clearly appear and to preserve the memory of it to posterity If a Deed which is to be given in evidence at a tryal be enrolled there needeth no other proof of the Deed then to shew the endorsement of the Enrollment Mich. 1649. B. S. For
Upon a contract in the nature of a Debt Request or no Request is not material but it is otherwise if the contract be a special contract for a Collaterall thing Mich. 1650. B. S. Repeal The Defendant cannot Repeal his Warrant of Atturney given to an Atturney to appear for him but he is compellable to appear by his Atturney according to his Warrant by the rules of the Court that he may not delay his appearance by that means to the prejudice of the Plaintiff Trin. 22. Car. B. r. Reversal The chief Justice or the ancientest Judge in the Court in his absence doth alwayes pronounce the reversal of an erroneous judgement to be Reversed by a Writ of Error openly in Court upon the prayer of the party and he pronounceth it in French to this effect Pur les errors avandit et auters errors manifest in les record soyt les judgement reverse le Defendant restore a tout ceo que il ad per ceo perd In English thus For the aforesaid errors and other manifest errors in the Record let the Judgement be Reversed and the Defendant restored to all that which he hath lost by it Trin. 22. Car. B. r. But now the Seignior Judge pronounceth it and doth it in English The Reversal of a Judgement may be pronounced conditionally that is that the Judgement is Reversed if the Defendant in the Writ of Error do not shew cause to the contrary at an appointed time Trin. 22. Car. B. r. Where divers persons stand Out-lawed for a forcible entry if the Out-lawry be erroneous it may be Reversed as to one of the persons Out lawed and stand good as to the others but the possession of the Land cannot be restored untill the Out-lawry be Reversed in the whole Hill 22. Car. B. r. The Judge will not pronounce the Reversal of an erroneous Judgement though it be adjudged to be erroneous except the Councel for the Plaintiff in the Writ of Error do pray it may be pronounced Hill 1649. B. S. 30 Jan. For the Judges are only to do justice to those that desire it Restitution and Rerestitution No Restitution is to be granted by the Court upon the suggestion of the insufficiency of an endictment of forcible entry or other matter untill the Certiorari granted to remove the endictment into this Court be returned Mich. 22. Car. B. r. For before the retâ—rn the Court hath nothing before them upon record to judg upon Where an endictment of forcible entry is quashed the Court upon motion doth usually grant the party endicted a Writ of Rerestitution to restore him to the possession of the Land yet the Court may if they please settle the possession of the Land in question according to their own discretions viz. where they shall conceive the most right to be for the possession Mich. 22. Car. B. r. There ought to be no Restitution or Rerestitution granted of the possession of Lands where it cannot be grounded upon some matter of record Hill 22. Car. B. r. A Writ of Restitution lies to restore one to the place of one of the Common Councell of London or to the place of a Constable if he be illegally put out of such a place Trin. 22. Car. B. r. Or to a Church-wardens place or to a Recorders or Town-Clarks place and generally to any publike Office or place of profit or trust but not to a private Office or place The words remisit relaxavit expressed in a Charter of pardon granted by the King unto one for a felony committed by him do not restore him unto his goods which he forfeited unto the King by being convict of the felony but there ought to be the word restituit which doth properly and in its genuine signification import a Restitution to a thing which he hath not whereas the words remisit relaxavit may signifie the remitting or releasing of the claim which one hath to a thing which is in his possession to whom the release is made Trin. 23. Car. B. r. The proper nature of a Writ of Restitution is to restore the party that hath it unto the possession of a free-hold or other matter of profit Trin. 23. Car. B. r. Yet this doth not generally hold for one may have a Writ of Restitution in some Cases to be restored to a place of no profit as is before expressed The Law doth oftentimes restore the possession to one without a Writ of Restitution to wit by a Writ of Haberefacias possessionem and otherwayes in common course and proceedings of justice Trin. 23. Car. B. r. A Writ of Restitution is not properly to be granted but in such Cases where the party cannot be restored by an ordinary way of justice or course of Law and many times such cases do happen Trin. 23. Car. B. r. If one be endicted for a forcible entry and the party endicted do traverse the endictment he cannot have restitution granted unto him before a tryall and a verdict and judgment also given for him although the endictment be erroneous Mich. 23. Car. B. r. Mich. 24. Car. B. r. For it is too late to move to quash the endictment after he hath taken his traverse and so the endictment must stand good against him till the tryall The Justices of Peace only before whom an endictment of forcible entry is found must give the party Restitution who was put out of possession by force and not other Justices of Peace of the County but the Judges of this Court may grant a Writ of Restitution though the endictment was not found before them Hill 23. Car. B. r. For they have a superintendent power over all England Where a Judgment for Land is reversed in this Court by a Writ of Error the Court may grant a Writ of Restitution to the Sheriff to put the party in possession of the Land recovered from him by the erroneous judgment Pasc 24. Car. B. r. There may a Writ of Restitution be granted to one that stands endicted for a forcible entry after he hath traversed the endictment and before the tryall if there do appear to be apparent delay in the proceeding of the Defendant upon the traverse else not as is aforesaid Trin. 24. Car B. r. There cannot be a Writ of Rerestitution granted where there doth not appear to have been a Writ of Restitution formerly granted in the Case Mich. 1650. B. S. For the very word Rerestitution doth imply that there was a Writ of Restitution formerly granted A Writ of Rererestitution may be granted upon a motion for it if the Court see cause to grant it By Ask Justice Pasc 1650 B S. 2. Maii. Upon an endictment of forcible entry found against the party if he do neither traverse nor plead to the endictment the party put out of possession may be restored to his possession without moving the Court. Pasc 1650. B. S. 22. Maii. Rule The Court will not make a Rule for a thing which may be done by the
of Error if he do proceed and take out execution upon the Judgment it is no contempt to the court Mich. 1649. B. S. For it shall not be presumed he knew there was a Writ of Error brought yet though it be no contempt in him to take out the Execution yet the Execution shall be superseded quia improvide emanavit for by bringing of the Writ of Error the hands of the Court where the judgment was given were foreclosed from proceeding any further Replevin A Replevin ought to be certain in setting forth the number and kindes of the Cattell distrained or else it is not good because if it be incertain the Sheriff cannot tell how to make deliverance of the Cattel because he knows not particularly what the cattel are that were distrained Trin. 23 Car. B. r. Replication If the Plaintiff do Reply to a Plea in Bar which is not good by his replying to it he hath confessed it to be good Trin. 23. Car. B. r. And so it shall be now taken to be for he hath lost his advantage of demurring unto it by passing by the defects of it and replying unto it If an Action for the breach of the condition of an Obligation be brought and the Defendant do plead that he hath performed the condition the Plaintiff in his Replication must shew in what particularly the Defendant hath broken this condition Pasc 24. Car. B. r. That the Defendant may be able to give a particular answer to the breach assigned and if he do not assign a particular breach his Replication is idle for it sayes no more then what was formerly said in the Declaration Reservation If the Lessee for yeers assign over all his term to another and reserve a Rent the Reservation is void Pasc 24. Car. B. r. For by the assignment of the whole term he hath no interest in the thing let for the which he can challenge any Rent to be due Recovery A Recovery cannot destroy a thing executory which doth depend upon a contingency Pasc 24. Car. B. r. Because it was uncertain at the time of the Recovery suffered whether it would ever be or no and a Recovery will not work upon so remote and uncertain an estate If a Recovery be suffered by Baron and Fem of Lands whereof the Fem hath an estate in Fee Simple although there was no Tenant to the precipe of the Lands yet this Recovery shall be a good estople against the Baron and Fem and their Heirs but it would be otherwise if the Lands had been Entailed at the time of the Recovery By Rolle Chief Justice Mich. 1650. B. S. 8. Nov. It is not necessary for the Judge to examine a Fem Covert when she joyns with her husband to suffer a Recovery of her own Lands yet it is prudential to do it Trin. 1651. B. S. By Rolle and he said that he used to do it Release If the Defendant in an ejectione firmae will not defend the title of the Land in case the Verdict pass against the Plaintiff the Ejector may Release the dammages to the Plaintiff Hill 1649. B. S. 11. Feb. For he is the Defendant in Law although the title do not concern him and it is the others fault that he was not himself made Ejector to defend the title One is not bound to give a Release unto the Sheriff for moneys which he receives from him which he levyed for him by vertue of an Execution but he must give him a note under his hand that he hath teceived it Hill 1650. B. S. By Rolle Chief Justice Q. tamen Whether he be bound to give him such a note for the Sheriff is an Officer of the Law and upon payment of the money the Law gives him his discharge Recital and Misrecital If a Statute be Misrecited in pleading in a matter which goes to the ground of the Action which is brought upon the Statute it is not helped after a Verdict by the Statute of Jeofailes but if it be Misrecited onely in a circumstancial matter and which goes not to the ground of the Action it is helped after a Verdict by that Statute Trin. 1650. B. S. For the Statute helps onely matters mispleaded in matter of form and not matters of substance Report By the custome of the Court the Secondary ought not to make any report of any matters referred unto him by the Court upon the last day of the Term for that day is properly appointed for motions onely Trin. 1650. B. S. Reversion If one have a Reversion expectant upon a Lease for years he may make a Lease of this Reversion unto the Lessee for years for one year and after make a Release in Fee to the Lessee for years of the Reversion and by this conveyance the Reversion in Fee will pass to the Lessee Mich. 1650. B. S. Reference Matters of Fact betwixt the party in a cause depending in Court are not to be Referred to the Secondary for such matters are tryable by the Jury that is to try the cause but matters concerning the due proceedings or undue proceedings in the cause by either of the parties are properly to be Referred unto him and for him in some cases to compose the differences and in others to make his report to the Court how the matters do stand Pasc 1650. B. S. If a matter in difference betwixt the Plaintiff and the Defendant be referred to the Secondary and one of the parties will not attend at the time appointed to hear the business referred the other party may proceed in the Reference alone and get the Secondary to make his report without hearing of the other party Trin. 1651. B. S. For one party cannot compell the other to attend and therefore such References would many times take no effect for want of the presence of both parties if a report may not be made notwithstanding one of them refuseth to attend Right Lands between the high water Mark and the low water Mark do appertain to the Lord of the Manor next adjoyning of Common Right Pasc 23. Car. B. r. By Rolle Q. tamen Whether they do not rather belong to the King for it hath so been held Scire Facias ONe may have a Scire Facias to revive a Judgement upon which no Execution was taken if it be but seven years past since the Judgement was had without any motion to the Court for it and if it be under ten years since the Judgement was had a Scire Facias may be moved for to revive it at the side Bar but if it be above ten years since the Judgement was had a Scire Facias may not be had without moving the Court for it Pasc 24. Car. B. r. But the Court will not deny it if it be moved for The side Bar is a place where a rail or bar is set up neer to this Court below the Court in Westminister-hall where the Judges stand and rest themselves before the Court sits and where they put on their
Robes and put off their Robes and there is another like it by the Common Pleas and it is called the side bar because it is on one side of the Court and not in the face of it A Scire Facias to revive a Judgement ought not to be granted if the Record be not in the Court where the Judgement was obtained Trin. 24. Car. B. r. For the Record is the Warrant for the Scire Faias A Scire Facias ought to be directed into the County where the original Action was brought upon which the Judgement to be revived by the Scire Facias was obtained Trin. 1650. B. S. 23. Car. B. r. A Scire Facias ad audiendum errores is not well brought before the Record of the Judgement be certified into the Court to reverse which the Writ of Error was brought 21. Car. B. r. For there is no record in Court to warrant the granting of it If one sue out two Writs of Scire Facias one after the other there ought to be seven dayes distance between the first and the second Scire Facias Mich. 21. Car. B. r. The return of the second Scire Facias ought to bear date at the return of the first Scire Facias Mich. 21. Car. B. r. A Scire Facias ought to be as short as possible because it is the nature of Writs to set forth things very briefly and a Writ is therefore called a brief from the Latin word breve which signifies short or compendious Mich. 21. Car. B. r. Of latter times it hath been used to make out a Scire Facias with a Fieri Facias or Writ of Execution comprised in it and both make but one Writ whereas anciently a Scire Facias and a Fieri Facias were two distinct Writs or Processes Trin. 22. Car. B. r. But they may make them distinct Writs at this day if they please A Scire Facias may be traversed before Judgement given upon it but after a Judgement there can be no traverse but a Writ of Error may be brought to reverse the Judgement if the Scire Facias was not good upon which it was grounded Trin. 22. Car. B. r. When a Judgement is reversed by a Writ of Error in this Court a Scire Facias shall issue against the Plaintiff in the Judgement reversed to shew cause why the Plaintiff in the Writ of Error whereby the Judgement was reversed should not have the moneys which were recovered and levyed upon him by vertue of the Judgement reversed Mich. 22. Car. B. r. A Writ of Scire Facias is not an orginal Writ but it is a Record at the time of the Caption before it is entred at Westminister and an Action may be brought where the Caption is Pasc 23. Car. B. r. In a Scire Facias brought upon a Judgement given in the Common Pleas it is necessary to shew before what Judge the judgement was given but it is not necessary to do it in a Scire Facias upon a Judgement given in this Court 23. Car. B. r. An old Judgement may be revived by a Scire Facias granted upon a motion to the Court but if a Scire Facias be taken out to revive an old Judgement without leave of the Court the Scire Facias is not good but is reversable Trin. 23. Car. B. r. For such a Scire Facias is not the Process of the Court. If one do not proceed upon a Writ of a Scire Facias within a year and a day after it was taken out he cannot after that time proceed upon that Writ but must sue out a new Scire Facias for the old Writ is discontinued Hill 1650. B. S. If an Administrator obtaines a Judgement for a Debt due to the Intestate and the Administrator doth afterwards dye Intestate and letters of Administration is granted to one de bonis non c. of him that dyed first Intestate this Administrator cannot have a Scire Facias to revive the Judgement obtained by the Administrator of the first Intestate but he must bring a new Action to recover that Debt Hill 1650 B. S. For he is no wayes privy to the first Judgement Statute He that will take advantage of a Statute by pleading it must shew in his pleading that he is within some Provison of that Statute if the Statute which he pleads be a particular Statute and not a general Statute 21. Car. B. r 25. H. 7. f. 1. For the Judges are bound to take notice of general Statutes which concern all the people but not of particular which do onely concern particular persons or places The Statute of primo Jac. which concerns Atturneys and Solliciters doth not extend to special retainers of Atturneys and Solliciters Mich. 23. Car. B. r. For that Statute is a general Statute and not a particular If an issue be joyned upon a Collateral point arising in the pleading and no place is alleadged whence the venue may come this fault is helped after a Verdict by the Statute of Jeofails but if the issue be not joyned upon a Collateral matter it is not helped by the Statute if no place be alledged The Statute which concerns the returning of Juries doth onely extend to Juries to be returned to any of the Courts at Westminster Mich. 23. Car. B. r. The Statute of 23. H. 8. c. 5. concerning Sewers was made for the ease and benefit of the people to wit the Defendants who are prosecuted upon that Statute and they may plead that Statute or not plead it at their election Hill 22. Car. B. r. If one acknowledge two Statutes upon his Lands one after the other and satisfie the former Statute and the Conusee of the latter Statute take out an extent upon the Lands this extent may be avoided untill the former Statute be avoided by a Scire Facias Hill 22. Car. B. r. For the Law is not to take notice of private acts done between the parties A Statute which is made onely in affirmance of the Common law that is that doth not enact any new thing but doth onely enact that which was provided for by the Common Law before the act made is nevertheless a Statute and may be pleaded as a Statute although the Defendant hath a plea at the common Law Pasc 23. Car. B. r. The ancient Statutes were made upon the Petition of the Commons in Parliament unto the King and passed not by Bill as now they do Pasc 23 Car. B. r. A Statute acknowledged upon Lands is a present duty and ought to be satisfied before an Obligation which is not so Mich. 23. Car. B. r. For a Debt due upon an Obligation is but a chose in Action and recoverable by Law and not a present duty It was held by this Court 5. Car. in Simons Case that the Statute of 1. Maria was repealed by the Statute of 1. Eliz. But Quaere for it was doubted by the Court whether it be repealed in the whole or in part onely Mich. 23. Car. B. r.
The Statute of 21. Jac. of Jeofailes which is to help defects in pleadings doth extend to all inferior Courts as well as to the superior Courts for it is a beneficial Law for the people and shall therefore be expounded largely and not with a restriction Pase 24. Car. B. r. The misrecital of a Statute in pleading in a thing which doth not concern the ground of the Action which is brought upon the Statute is helped by the Statute of Jeofailes Trin. 1650. B. S. Although a penal Statute shall not be extended to equity in the exposition of it yet it shall be so expounded that the true intent and meaning of it may be known Mich. 1650. B. S. For if the former should be the exposition would be too large and arbitrary and if the latter should not be the exposition would be to narrow and would extenuate the force of the Statute Satisfaction Satisfaction pleaded to an Obligation which appears to be of a thing which was performed before the date of the Obligation is not good Mich. 22. Car. B. r. For the date of the Obligation shall not be intended to be after the ensealing and delivery of it Moneys that are to be paid by an Executor by vertue of a Decree in Chancery are not to be satisfied by the Executor before a Debt due upon an Obligation made by the Testator and grown due after the death of the Testator By Rolle Chief Justice Trin. 23. Car. B. r. Whether a Legacy given by the Testator or a Covenant entred into by him in his life time and broken in the time of the Executor shall be first satisfied Trin. 23. Car. B. r. Q. In Eeles and Lamberts Case A Guardian may acknowledge Satisfaction upon Record for the Infant unto whom he is Guardian for a Debt which as Guardin he hath recovered for the Infant Trin. 23. Car. B. r. For it is reason that he that hath power given him to recover a Debt should have power to discharge the party of whom it is recovered when he hath received it The ancient course of this Court was that if the Defendant will make the Satisfaction for that which he is sued for to the intent that the Court may cause the Plaintiff to cease his prosecution and may receive the Satisfaction offered that the Defendant should come into Court before he pleads and tender Satisfaction or else the Court would not receive this tender nor order any thing in it Hill 1650. B. S. But now if the Defendant do offer this Satisfaction after be hath pleaded the Court will not utterly reject it but will upon the prayer of the party refer the matter to the Secondary to end the matter the Defendant making full Satisfaction for the principle matter and for costs and dammages suffered and expended by the Plaintiff in the suite Sheriff and Vnder-Sheriff In some cases the Court will order the Sheriff to attend the Secondary of the Office with his Book of Free-holders of the County where the Land in question doth lye that an indifferent Jury may be returned for a tryal at the Bar. Mich. 22. Car. B. r. A Sheriff is not bound to return a Writ directed unto him except the party whom the Writ doth concern do tender him his Fees for the executing of it that is in such cases where he is allowed Fees Mich. 22. Car. B. r. Q. de ceo For the very words of the Writs do enjoyn the Sheriff to make a return of them Mich. 22. Car. B. r. So that it seems he is to return them whether the parties concerned do call on him or not and if he be not paid his Fees where he is allowed to take them he may recover them by an Action A Sheriff out of his Office cannot be fined by the Court but a Tipstaff may be sent for him to bring him in to answer this misdemeanor committed by him when he was in his Office 22. Car. B. r. The old Sheriff of a County is Sheriff untill the new Sheriff be sworn although he be chosen Hill 22. Car. B. r. For the taking of his oath doth compleat him in his Office The Under-Sheriff ought alwayes to have his Deputy to be attendant in Court to receive and execute their commands and to give account of businesses which may fall out concerning the Sheriff Hill 22. Car. B. r. Both the Sheriffs of the City of London are in Law but one Sheriff and one of them is not onely Sheriff of Middlesex and the other Sheriff of London or one the Kings Sheriff and the other the City Sheriff as it is commonly said 11. Feb. Hill 1650. B. S. Every Sheriff ought to answer for the misdemeanors of his Bailiffs Trin. 1651. B. S. For they are his servants and ought to be under his Government Suggestion or Surmise A Suggestion made to the Court that the thing for which it is libelled in the Admiralty against the party was done infra Corpus comitatus where as in truth it was done beyond the Seas is notwithstanding a good Suggestion for the Court to grant a prohibition unto the Admiralty upon for it is but to try the jurisdiction of the Admiralty and not the merits of the cause and if it be false the Plaintiff in the Admiralty may joyn issue upon it and try it at the Law and if the Verdict pass for him the Court will grant a consultation that he may proceed in the Admiralty Mich. 22. Car. B. r. Matters of Record ought not to be stayed upon the bare Suggestion or Surmise of the party but there ought to be an Affidavit made of the matter Suggested to induce the Court to ground a Rule for staying the proceedings upon the Record Mich. 1650. B. r. Surrender If Lessee for Life do accept of a Lease for years it is a Surrender in Law of his Lease for life By Rolle Pasc 24. Car. B. r. For if it should be otherwise the Lease for years would be made in vain and to no purpose for both the Leases cannot stand together and where things may have an operation by a reasonable construction in Law the Law will support them Supersedeas If a Writ of Error be brought there ought not to be a Supersedeas granted to him that brings the Writ of Error to stay Execution upon the Judgement which is to be reversed by the Writ of Error untill he that brings the Writ of Error have put in special Bail to pay costs and dammages if the Judgement be not reversed by the Writ of Error but affirmed Trin. 24. Car. B. r. It is very hard to compell the party that brings a Writ of Error to take out a Supersedeas into all the Counties where he hath Lands or goods lyable to the Execution upon the Judgement for the reversing whereof the Writ of Error was brought Mich. 1650. B. S. By Rolle Chief Justice Yet it is a sure way for him that doth bring the Writ of Error to do it to
the cattel Mich. 23. Car. B. r. For one shall not be made a Trespassor against his will If a person or goods be rescued out of the hands of the Sheriff which he hath taken in Execution by vertue of his Office it is at his election to bring an Action upon the Case or an Action of Trespass vi armis against him that made the rescous Hill 23. Car. B. r. If one bring a meer Action upon the Case he may declare omitting the words vi armis but if the Action be a bare Action of Trespass there he must declare that the Trespass was committed vi armis Mich. 24. Car. B. r. For an Action of Trespass doth implye a breach of the peace and a capiatur is to be entred in the Judgement against the Trespassor for his fine to the King but in an Action upon the Case it is otherwise for there the Judgement is that the Defendant shall pay the dammages and be in misericordia Trespasses of several natures cannot be laid together in one Action Mich. 24. Car. B. r. Upon a recovery of Lands in an Action of Treft pass and Ejectment the Plaintiff may afterwards bring an Action of Trespass against the Defendant for the mean profits of the Land So it was held in the case between Wilmot and Holden Trin 1652. B. S. The mean profits are such profits of the Land as did grow due betwixt the time of the bringing of the Action and the time of the recovery An Action doth lye at the Common Law for the person for taking away of Tithes after they are severed from the Land Mich. 24. Car. B. r. To wit against the occupyer of the Land Q. tamen Tales Upon a Tryal at the Bar if the Jury do not appear full the Court cannot grant a Tales de circumstantibus but the Court upon a motion will grant a Tales returnable in some convenient time the same Term to try the cause Mich. 22. Car. B. r. 1650. B. r. For the Statute doth not extend to tryals at the Bar which did enable the making of a Tales A Tales de circumstantibus are so many persons which are returned to serve on Juries to supply the places of those that did not appear A Corporation Court cannot grant a Tales Pasc 23. Car. B. r. For the Statute doth not extend unto Corporations A Tales is not to be granted where the whole array or Jury is challenged for want of Hundreders but in such case the whole pannel if the challenge be made good is to be quashed and a new Jury is to be returned Mich. 1650. B. S. For a Tales consists but of some persons to supply the places of such of the Jurors as wanted of the number of twelve and is not to make a new Jury If the Sheriff take Bail of one for his appearance who is not Bailable by Law although the party do not appear an Action doth not lye against the Sheriff but the Plaintiff must proceed against the Sheriff by way of amercements Mich. 1650. B. S. 26. Nov. For in regard that the Sheriff ought not to have taken Bail though he have taken it yet it shall be accounted as if he had not taken Bail Terms The Issue Terms are Hillary Term and Trinity Term onely the other two Terms are not so called and the other Issue Terms are so called because in them are the Issues joyned and made up which are to be tryed at the Lent Assizes and the Summer Assizes which do immediately and respectively follow them Hill 22. Car. B. r. The four dayes in Term are the day of 1. Essoigne 2. Exception 3. Appearance 4. Return Hill 22. Car. B. r. All the Term in construction of Law is accounted but one day and therefore a Plea that is put in the last day of a Term is a Plea of the first day of the Term. Trin. 23. Car. B. r. Mich. 1649. B. S. The Term is said to begin upon the first Essoign day which is three dayes before the Courts of Justice do sit and not at the first day of sitting of the Courts Trin. 24. Car. B. r. Because some businesses of that Term do begin at that time The same day of the week that Michaelmas Term doth end the same day Hillary Term doth begin By Woodward Clerk of the Court Hill 24. Car. B. r. Toft and Croft A Toft is a place where an old house did formerly stand and it also signifies a decayed house not inhabited Pasc 23. Car. B. r. A Croft is a small peices or close of Land that lyes neer a dwelling house Pasc 23. Car. B. r. Trover and Conversion Where the Trover of goods is one County and the Conversion is in another County the Action brought for these goods may be laid in the County where the Conversion was for the Conversion of the goods is part of the cause of the Action Pasc 23. Car. B. r. For the very name of the Action is called a Trover and Conversion and not a Trover onely and the Action is brought as well for the Defendants converting of the goods to his own use as for the finding and deteyning of them Two causes of Action for a Trover and a Conversion cannot be joyned in one Action Trin. 23. Car. B. r. An Action of Trover and Conversion may be brought for goods although the goods for which the Action is brought do come into the possession of the Plaintiff that brings the Action before the Action brought Pasc 1651. 22. Ap. B. S. For the coming of the goods into his possession before the bringing of the Action for them doth not purge the wrong or make satisfaction for that which was done to the Plaintiff by the finding and converting the goods and so he hath still cause of Action although his dammages may not be very great Trust The Chancery will compell one to perform a Trust which he hath taken upon him except it be a Trust taken upon him for the benefit of an Alien Pasc 23. Car. B. r. For to compell that might in many cases prove prejudicial to the Common Wealth and repugnant to the Common Law The way of making conveyances by way of Trust was invented to evade the Statute of uses Pasc 23. Car. B. r. Cestuy que trust cannot take the profits of the Land setled by the Trust but hath onely his remedy for them in equity for the estate in the Land is onely in the party that hath the Trust Trin. 23. Car. B. r. Tenure Lands which are granted by the King to hold of him of his Manor of East Greenwitch in Kent in capite is a Tenure in Sorage and the words in capite in the grant are voide Trin. 23. Car. B. r. For those words are repugnant to the Tenure created by the grant Tender A Tender of Rent to save the forfeiture of a Lease ought to be a Tender of the whole Rent due at the time of the Tender without any deduction of Taxes of
and the Latin word shall stand Pasc 24. Car. B. r. Q Tamen Where senceless words which signifie nothing are used in a Declaration to express things they shall be accounted voide and idle and shall not hurt the Declaration if it be good without them for no dammages shall be intended to be given by a Jury for those things which were intended to be expressed by those senceless words Pasc 24. Car. B. r. The word videlicet is used to explain the foregoing words in the Deed or other wrighting where it is used and if the words which the videlicit doth usher in be contrary to the preceding words they are voide Pasc 24. Car. B. r. One may upon a consideration dissolve by Paroll an absolute contract Pasc 24. Car. B. r. One may give authority by Parol unto another to take Livery and Seisin for him Mich. 1650. B. S. For he is but an instrument or Conduit Pipe to derive the possession of the Land to another Words ambiguous ought to receive such a con-construction as may make them stand with Law and equity Mich. 1650. B. S. A mark made in the manner following viz. A which is to shew where a clause or word left out and interlined in writing should come in is called a tra By Rolle Chief Justice It seems to be derived from the Latin word trahere to draw because by it the words left out are signified to be there where it is placed to be drawn into the writing 1650. B. S. Witness A Witness who by reason of sickness extreme age or other cause cannot come to a tryal may by order of Court be examined in the Country by a Commission out of the Chancery or before any Judge of the Court where the cause depends and the testimony so taken shall be allowed to be given in evidence at the tryal Mich. 22. Car. B. r. If a Witness be served with the Process of this Court to give his testimony at a tryal and will not come the Court may grant an Attatchment against him for his contempt to the Court and the party may have his Action upon the Case to recover the dammages he received for want of his Testimony Mich 22. Car. B. r. The testimony of one single person is a sufficient testimony for the King in a cause wherein he is concerned Mich. 22. Car. B. r. To wit in criminal causes but Q. Whether it be so in civil causes A Witness that is to testifie on the behalf of the King against one that is arraigned for Felony may not be sworn against the King to give his testimony but the prisoner may examine him desire his testimony without giving him his oath Mich. 22. Car. B. r. If divers persons be made parties to a sute and some of them are either found not guilty or else the Plaintiff will give no evidence against them they may be allowed to be examined as witnesses in the cause whereunto they were made parties Mich. 22. Car. B. r. For now it appears they are not concerned in the sute but are as strangers and indifferent persons He that will make use of Witnesses at a tryal must get them thither at his own peril and he shall not delay the other party for lack of his Witnesses Pasc 23. Car. B. r. For he hath his remedy against his Witnesses if he suffer in his tryal by reason of their absence One that hath but a small Legacy given unto him by a Will may be allowed as a Witness to prove that will but he that hath Lands given unto him by a Wil may not be allowed for a Witness to prove that Will Pasc 23. Car. B. r. For that were to suffer one to swear his own title but in the former case the Law will not intend that any one will forswear himself for a small matter It is not requisite for Witnesses to a Will to set their hands unto it Pasc 23. Car. B. r. Nor for Witnesses to a Deed to do it but it is very prudential to do it the better to keep things in memory A man may be a credible Witnesses that is one of good fame and credit and yet by Rules of the Law he may not be a Witness in the cause wherein he is produced to his give testimony Pasc 23. Car. B. r. For he may be for some by respect not indifferent in that particular cause though otherwise accounted of good credit and repute One that is made Executor of a Will is not to be allowed as a Witness to prove that Will Pasc 23. Car. B. r. For his own interest may be concerned in the proof of the Will If the Councel on both sides at a tryal cannot agree what testimony a Witness in a cause did give the Court will examine him again Pasc 23. Car. B. r. That all things may be clear and without dispute Inhabitants within a Corporation if they be not free of the Corporation may be admitted as Witnesses for the Corporation as a tryal which concerns the Corporation Pasc 23. Car. B. r. For their interest is no way concerned and favor is not a good exception against a Witness although it he against a Juror A Witness may not be compelled to answer upon a voir dire touching a Trespass done for the doing whereof he may himself be lyable to an Action Mich. 23. Car. B. r. For nemo tenetur prodere scipsum One that is of Councel in the cause on one side may be examined as a Witness in it on the other side if he be served with Process to give his testimony therein but otherwise he may refuse to be examined Mich. 23. Car. B. r. For in the former case he is enjoyned by Law to do it which is to be preferred before his Clyent but otherwise it is a voluntary act and it is not civil for him to do it nor is he to be pressed unto it Examination of Witnesses which were taken in perpetuam rei memoriam ought not to be made use of at a tryal until the Witnesses so examined be dead Hill 23. Car. B. r. Pasc 24. Car. B. r. 19. Ap. For they were onely examined for their testimonies to be made use of onely in the case of death One that is any wayes concerned in the same Title of the Land in question may not be allowed as a Witness in the cause although he be no wayes then a party to the sute Pasc 24. Car. B. r. For his testimony tends to the corroboration of his own title One that claims any benefit by a Deed may not be allowed as a Witness to prove the Deed. Mich. 1649. B. r. In regard of his interest One that is to be a Witness at a tryal ought not to be examined before the tryal but by consent of both parties Hill 1649. B. S. The Court will upon a motion grant a Habeas Corpus to have a prisoner in prison upon an Execution in the Mareschal Sea to be at a tryal to be