the tryal good without it and thereupon day was given to shew cause why the Iudgement should not be aâ—firmed Pasch 23 Car. the Iudgement was affirmed Andrews Case Hill 22 Car. Banc. Reg. A Recognizance was acknowledged at Serjeants Iune in Fleetstreet Where a Scire facias upon a recognisance shall be brought and delivered and enrolled at Westminster The Court held that it was at the election of the Recognisee to bring his Scire facias either in London where the Recognizance was acknowledged or in Midlesex where it was delivered and enrolled But adjourned Afterwards viz. Pasc 23 Car. the Court held that the Scire facias ought to be where the recognizance is taken and not where it is recorded for there it begins to be a Record but this being in the Common Pleas it was good both ways and thereupon the party had his judgement Rooke and Knight 22 Car. Mich. Mich. 22 Car. rot 381. A Iudgement given in the Court at Dym Church Demurrer to a Scire facias upon a judgement removed out of the Cinqne Ports by Certiorari in the Kings Bench. a limb of one of the Cinque Ports was removed by a certiorari into the Kings Bench and thereupon issued a Scire facias for the Defendant to shew cause why the Plaintiff should not have execution upon the judgement to this the Defendant appears and demurs and takes these exceptions 1. That it is not expressed where Dim Church is 2ly In the retorn of the alias certiorari it is said sicut prius and not sicut alias 3ly the Sheriff in the reforn is not namned Knight and Baronet neither doth he name himself by his name of Baptism and Surname But the Court did over-rule all these exceptions and gave judgement for the Plaintif AN action of the Case was brought for these words Action upon the Case for words Thou hast stoll'n my wood and the Court inclined the words were actionable but not if he had said thou hast stoll'n my Trees and it was said that a precipe will lie of a wood for it shall be intended of woody ground adjourned Pracipe Helliar and Grace his VVife Pasch 23 Car. Banc. Reg. AN action upon the Case was brought by Helliar and his wife Action upon the Case upon an Assumpsit upon a promise made unto them during the Coverture and it was moved a verdict being given for the Plaintifs in arrest of judgment that the Action ought to have been brought in the name of the Husband only and not by the husband and wife and a case to prove it was cited out of Dyer Dyer 91. and upon this exception the judgement was arrested till the other should shew cause to the contrary And in this case it was said by the Court that if an Obligation be made to baron and feme that it is the better opinion Joynt action that the baron may bring an action upon this obligation in his own name only and not name his wife or else he may at his election bring the action in the name of himself and his wife joyntly Betsworth and Betsworth Pasch 8 Maii 23 Car. Banc. Reg. It was moved for a Prohibition to the Prerogative Court upon a surmise that the party did endeavour to barstardise one that was legitimate But the other party answered that the surmise was not true and urged that the sute in the Praerogative Court was only Prâ—hibition to the Praerogative Court whether Letters of administration were by them well granted or no and not concerning Bastardy as the surmise sets forth and therefore desires the Prohibition may not be granted and for confirmation thereof the case was put which was this Betsworth had a wife called Bridget who died after he takes another wife called also Bridget and dies intestate Bridget the second wife takes Letters of administration of the goods and chatels of her husband deceased the son of Betsworth sues in the Praerogative Court to repeal these Letters of Administration upon pretence that Bridget the first wife of Betsworth was yet living In this case the Court delivered these positions following Jurisdiction 1. That one ought not to sue in the Ecclesiastical Court to Bastard an issue Ordinary but at the Common Law 2. Where the Ordinary hath granted Letters of Administration to one that ought to have them they ought not to be repealed by them 3. Where a sute is in the Ecclesiastical Court for lands and goods Prohibition a Prohibition may be granted as to the lands and they may procéed there notwithstanding as to the goods 4. That in this Case at the Bar neither Bastardy of the issue nor mariage is in question as is surmised but only the validity of the Letters of Administration Incidents and that the other things are but as incident to the matter in question 5. That wife or not wife is triable at the Common Law but whether lawfully maried or not Tryal is tryable in the Spiritual Court 6. Where a thing is tryable in the Spiritual Court and there is also a matter incident to it which is tryable at the Common Law there a Prohibition shall not be granted Prohibition Evidence 7. That a thing concluded in the Ecclesiastical Court touching lands cannot be given in evidence in a tryal at Law for Land 8. If the Common law differ from the Civil Law touching the legality or non legality of a thing if they will proceed according to their Law a Prohibition lies because the Common Law is to be preferred The rule of Court was Prohibition That a Prohibition should be granted and that the other should demur upon it and so it might be debated whether a Prohibition would lie or not and to stay in the Spiritual Court in the mean time Pasch 23 Car. Banc. Reg. ONe brought an Action upon the Case against I. S. for preferring a bill of Endictment against him Arrest of judgement in an action upon the case for stealing of a Mare and that the grand Iury found an ignoramus whereby he was discharged the Plaintiff obtains a Verdict against the Defendant The Defendant takes these exceptions to the declaration in Arrest of Iudgement 1. That it doth not appear thereby that the Party who preferred the bill of Endictment gave any evidence to the grand Iury touching the bill 2ly It appears not that the Plaintiff was bound over to answer the Felony and consequently was not molested â—y it and so he can have no Action But the Court stayed the Iudgement to another day upon the exceptions taken Case and sayed that an Action upon the Case lies for procuring one to be Endicted Endictment although the party himself do it not and that one may exhibit a bill of Endictment to a grand Iury without Oath grand Jury and they may notwithstanding find the bill and although it be exhibited upon Oath they are not bound to
Praecipe lyes not of it The rule of Court was that the Plaintiff should take a special Iudgement as he desired and release the Croft and the damages to all and that he should have his Costes Lere and Cholwitch Pasc 23 Car. Banc. Reg. LEre brings an Action of Debt upon an Obligation against Cholwitch Arrest of Iudgement in Debt upon an Obligation the condition of the Obligation was that a certain sum of money should be paid to the Plaintiff 40 dayes after he should return with his Ship to such a Port of discharge for fraight for his Ship and for non payment accordingly is the Action brought The Plaintiff hath a Verdict The Defendant moves in Arrest of Iudgement and takes these exceptions 1. That the averment of the breach of the condition of the Obligation is not certain and therfore not good Fraight for it doth not aver that the Ship was discharged of his Goods or that the 40 dayes were expired before the money demanded To this Rolle Justice said it is not usual to pay fraight for a Ship till the owners have their goods delivered but here the condition of the bond is to pay the moneys within 40 dayes after his return to such a port of discharge Intendment and it is not intended that the money shall not be paid till the 40. dayes be past The 2d Exception was that he doth not say where the Ship was unloaden To this Rolle answered that it shall be intended that it was unladen at the port where she arrived if the contrary be not shewn on the other side 3ly There is no notice expressed to be given of the unloading of the Ship Notice and this being a collaterall thing and penall to the Defendant he ought to have notice of it To this Rolle said that one party might as well take notice of this as the other for the thing to be done is not to be done either by the Plaintiff or Defendant and the issue is found against the Defendant therefore let him shew cause Tuesday next why Iudgement should not be given for the Plaintiff Afterwards the same Term Iudgement was given accordingly Segar and Dyer Trin. 23 Car. Banc. Reg. Mich. 22 Car. rot 125. or 135 DYer brings an Action of Trover and Conversion Error to reverse a Iudgment in Trover and Conversion in the Court at Bristow against Segar and hath a Verdict and a Iudgement against him Segar brings his Writ of Error in this Court to reverse this Iudgement and Assignes these Errors 1. To the Declaration which was of the Trover and Conversion de uno pollo Anglice a Colt whereas Pullus signifies not a Colt but properly a young Hen and hence we had the word pullet but in a general acception of the word it may signifie also other young things but then it must have an adjective of the species which it is to signifie or a substantive of the gentive case joined with it as pullus equinus pullus Asininus or Asini and the like and ought not to be used alone to signifie a colt with an Anglice joyned to it as it is here The 2d Exception was that it is not well set forth how the Court was held where the Iudgement was given for he doth not shew that the Court was held either by letters patents or by praescription but saith ad curiam tentam tali die coram A. D. I. H. c. a tempore cujus contrarium memoria hominum non existit c. prescription which cannot be a good praescription for a Court cannot be held at such a day and before such particular persons if it be not expressed to be secundum consuetudinem The rule of Court was to shew cause Tuesday following why the judgement should not be reversed Trin. 23 Car. Banc. Reg. THe Plaintiff declares that the Defendant had covenanted with him Demurrer upon a Declaration in an Action of Covenant to pay him so much money as he should expend for repairing and victualling a Ship for him and averrs that he had expended 300 l. in repairing and victualling it and that he gave the Defendant notice of it at such a day and for non payment he brings his Action of breach of Covenant The Defendant protestando that the Plaintiff had not laid out 300 l. in maner and form as he had declared demurs to the Declaration upon these exceptions 1. That that the Declaration was not good because he had not averred a speciall breach of Covenant But to this Roll Iustice said that this exception had been often over-ruled 2ly It was objected that in this case the Plaintiff should have brought an Action of Debt Election of Action and not of Covenant But to this also Roll answered that it was well enough for it is in the election of the Plaintiff to bring either an Action of Debt or an Action of Covenant and that it hath been heretofore questioned whether an Action of Debt did lye in this case but it was never doubted but that an Action of Covenant did very well lie Debt A third exception was that there is no request alleged to pay the mony and without request he was not bound to pay it Demand To this Roll answered that the Plaintiffs Action was not an Action of Debt where a Demand is necessary but it is an Action of Covenant and there it is not needfull to allege a Demand Boomer and Payte Trin. 23 Car. Banc. reg PAyte the Administrator of the Goods and Chattels of I. S. brings an action of Debt against Boomer Demurrer upon a Declaration in Debt and declares that the Intestate brought an action of Debt in the Common Pleas against three and had a Iudgement against them and a Capias ad satisfaciendum against two of them was directed to Boomer the Defendant being then Sheriff of the Countywhere the parties lived to execute and that accordingly he did execute it by taking the parties and afterwards did suffer them to escape and for this the Plaintiff brings his Action Debt To this Declaration the Plaintiff demurs But Roll Iustice said he saw no cause for it for an Administrator may have an action of Debt against a Sheriff upon an Escape suffered of a Prisoner of the Intestate in his life time and ordered the Defendant to shew cause Tuesday next why the Plaintiff should not have Iudgement The City of London and Estwick Trin. 23 Car. Banc. Reg. STephen Estwick prays a Writ of Restitution to be restored to the place of a Common-Councel-man of the City of London For restitution to the place of a Common-Councel-man of London being put out of it by the Lord Maior and Court of Aldermen and also committed to Newgate the Writ is granted and directed to the Lord Maior and Court of Aldermen who thereupon make a logn retorn setting forth at large the causes why he was deprived and committed and why he
the land and the King shall have it And to that which is said that the King cannot be a Copyholder it is not so clear for I conceive the contrary for a surrender of a Copyhold to him is good and of a use too and he cited these books 9 H 6. fol. 25.20 B. 3. f. 3.11 rep 91. Rolle Iustice said that a Trustee or cestuy que trust cannot take the profits of the land Cestuy que trust Equity Outlawry Law Equity but hath only his remedy in equity for the Estate in the land is only in the party trusted and the King shall not have the profits of the land upon an Out-lawry against the cestuy que use or cestuy que trust And Law and Equity ought not to be confounded therefore if the King hath equity for a thing he ought not to sue for it at the Common law so is it in this case at the bar Adjourned Chapel and Drew 23 Car. Banc. Reg. Hill 11 Car. rot 921. IN this case the party being attainted of felony Exception to a pardon for Felony Pardon pleaded his Charter of Pardon and Claims thereby to be restored to his Goods and Chattels forfeited to the King by the felony and the Question was whether as the Pardon was penned he should be restored or no the words of the Pardon upon which the Question grew were these pardonavit remisit relaxavit and it was held that he was not by these words to be restored to his Goods and Chattels for the words do not amount to a Surrender in case of a ommon person much less in case of the King and there ought to have been the word restituit Roll Iustice said this Pardon was drawn by Noy Attorny General and was too short Felony Tryal and it was said by him that if one be committed to the Gaol for one felony the Iustices may enquire and try the party for another felony for which he was not committed Tylers Case Trin. 23 Car. Banc. Reg. AN action of Debt was brought against Tyler upon an Obligation to stand to an Award Demurrer to a Replication and the Plaintiff declares of an Arbitrement made the 28th day of May in such a year ready to be delivered up the nine and twentyeth day of May in the same year The Defendant pleads nullum Arbitrium The Plaintiff replies that the Award was made by the Vmpire the 28th of May ready to be delivered up upon the same 28th day of May and to this replication the Defendant demurs and shews for cause that the Plaintiff had set forth double matter one in his Declaration and the other in his Replication for the Award set forth in the Declaration and that set forth in the Replication cannot be intended to be one and the same But Roll Iustice answered that the Issue to be tryed is not to be taken upon the day of the Award made and therefore it requires no answer Demmurres and so cannot be double and one ought not to demur for the doubleness of the matter upon a thing upon which no Issue can be taken and â—â—led better matter should be shewn or else Iudgement should be given for the Plaintiff Estwick and the City of London Trin. 23 Car. Banc. Reg. THe Case of Estwick and the City of London was again argued by Serjeant Glynn for the City Argument in the Case of the VVrit of Restitution to a Common-Councel-mans place Restitution Custome in his Argument he insisted upon three particulars why Estwick could not be restored to his place of a common-Councel-man 1. That a common-Councel-man may be removed or suspended from his place at pleasure by the custome of the City 2ly That he cannot be restored by Law 3ly No restitution can be in this case as it now stands First the custom to remove a common-Councel-man is good for it first began by agreement and such a custome is good at the common law much more here and it is not an unreasonable custome although it may seem so prima facie like as it is in the case of a Lord that feiseth the Lands of his Villein and in the case of a Copyholder that for feiteth his Estate by the felling of Timber A second reason is it agrees well with the nature and condition of the office of a common-Councel-man to be subject to this Custome Tryal and we know that many things shall be tryed by Custome contrary to the course of the common law 3ly We see that the order of the Parliament is a rule to try matters concerning their Members and so it is here in the Citie to try their Members 4ly If it should not be so it would prove destructive to the City by waiting till such an offender might be removed by a course in Law which is far more tedious than this customary way To the second point he said that by Law there can be no restitution to this office and this is proved by the very nature of the Writ of Restitution which is to restore the party to a freehold or some other matter of profit neither of which can be in our case and a writ of Restitution is to restore one to a possession where one may not be restored by an ordinary way neither doth the Statute of Magna charta extend to our case for a common-Councel-mans place is merely grounded upon the custome of the City and not upon the Common law and he said there are three grounds for a Writ of Restitution 1. A contempt to the King 2ly A hurt to the Common-wealth 3ly Particular dammage to the party but none of these is in our cause and therefore there is no cause for a Writ of Restitution The case of Sir Iames Baggs having a Writ of Restitution was because he was deprived of his Trade and Freedom Constable Church warwarden free-hold and our case differs from the case of a Constable or a Church warden or any case that can be cited for a Church warden is an officer in relation to the Common wealth for the execution of Iustice wherof the Common law takes notice and likewise a Constable is a known Officer to minister Iustice in relation to the publique Recorder so is it of a Recorder of a Corporation and so they all differ from our case For authority to this point in 17. Iac. but moved first 16 Iac. Warren a common-Councel-man of Coventry was denyed upon the retorn of his Writ to be restored and our case and retorn is more strong against the Plaintiff and Burman a Gentleman of one of the Inne of Court being expelled could not be restored by a Writ of Restitution and lately a common-Councel-man was removed for not taking the Protestation For the third point whether upon the Writ it self as this case is there can be any restitution made I conceive not because it is directed to the Maior and Commonalty and Citizens of the City of London and so
there is in it a false recital of the suspension Recital for he was not removed by the Citizens and so the Writ is directed to parties who did not the wrong and so it is ill directed and it differs from the direction of the Writ in Sir James Bags case and it ought to have been directed to the Sheriffs or Ministers who have authority to restore him as they did remove him for the party that hath done no wrong ought not to be punished or molested and for the ill direction of the Writ could not Warren the common-Councel-man of Coventry he restored and the Corporation of London is responsable for all particular Misdemeanours done within any Courts of Iustice within the City or other general Misdemeanours there committed Misdemeannours Maynard on the other side argued that the case was mistaken as it is stated in the Retorn for it supposeth that the party is removed at pleasure and yet supposeth also that there is a cause to remove him to wit his refusing to go out and expresseth not that he did not go out nor that he was commanded to go out but that he was requested And whereas it is more than to advise for he hath a privilege for his own good and the good of the City 3ly The Writ is well directed and cannot be otherwise for the party to have remedy and all the Presidents are as this is Presidents and Alderman Harris his case is the same in point with this where it was by three Iudges resolved that he should be restored to his Aldermans place because it was a place of Honour as well as of Burthen Roll Justice said 1. That the Writ was well directed 2ly That the custom was ill recited 3ly If it were well recited yet it is a void custom 4ly The Retorn is not good for the incertainties of it viz. in the causes shewed why the party was removed and therefore that he ought to be restored to his place Bacon Justice to the same intent and said that wheresoever a Commissioner or other person hath power given to do a thing at his discretion it is to be understood of sound discretion and according to Law Discretion Iurisdiction and that this Court hath power to redress things otherwise done by them The rule was that the party be restored if better matter be not shewn Tuesday following Trin. 23 Car. Banc. Reg. IN an Action of Trespass for digging in his Ground Arrest of Iudgement in Trespass and carrying away 200 load of soyl It was moved in arrest of Iudgement that it should have been of soyl inde provenient and that an intendment cannot make it good Roll Iustice said it seems a good Exception for as it is it is too generalite laid Vincent and Fursy Trin. 23 Car. Banc. Reg. Hil. 22 Car. Rot. Q. VIncent brought an Action of Trespass against Fursy for breaking open 2 Chests and taking away certain Cloaths and 3 l. in mony Arrest of Iudgement in Trespass and had a Verdict for him The Defendant moves in Arrest of Iudgement and takes these exceptions 1. That the Declaration is too general for it sets not forth what the cloths were which were taken away and so the value of them cannot be known as it ought to be that Damages may be rightly given 2. In this one Declaration there is an Action of Trespasse joyned with an Action upon the Case viz. the Trespasse for breaking open the Chests and the Action of the Case for taking away the cloathes and mony which ought not to be for two several Actions ought not to be laid in one Declaration Wadham Windham of Councell with the Plaintiff said it was well enough and could not be otherwise and the thing is certainly enough set forth and shall be interpreted reddendo singula singulis viz. the spoliavit in the Declaration shall have reference to the cloaths and the cepit to the mony Trover and Conversion Rolle Iustice said that an Action of Trover and Conversion for divers sorts of linnen had been adjudged good and 29 E. 3. An Action of Trespasse lyes for beating of his servant and in Cletheroes case an Action of Trespasse was held good for rescuing a prisoner from him whom he had Arrested Trespasse and the Cook of Grayes Inn brought an Action of Trespasse for taking away his wife per quod consortium amisit and it was held to be well brought but if the cloaths in the case at the bar had not been in the chest the Action would not have lain and he took another exception namely that Declaration wss for the breaking of 2 chests Incertainty and so it appears not where the cloaths were when they were taken whether in one oâ— in â—oth of them The rule was to stay Iudgement till they had seen the Reâ—ord Capell and Allen. Trin. 23 Car. Banc. Reg. Hill 22 Car. rot 639. CApell brought an Action Debt upon an Assumpsit to stand to an award the Defendant pleaded Nal Arbitrement Demurrer upon an award the Plaintiff replyes and sets forth the Arbitrement and the breach the Defendant demurs and for cause shews that the award was not good because it was made but of one part Award for it was that one of the parties should do such things expressed and that the other party should pay for the making the Bonds of Submission which cannot be awarded and so nothing is awarded for him to do and the Arbitrators cannot award this because it is not within the submission Submission Rolle Iustice held this a good exception and said the Charge for making the writings is not within the Submission for the bonds were made before the Submission and it was held 13 Jac. that the words super praemissis in the award will not help an award made but of one part Trin. 23 Car. Banc. Reg. AN Action of Debt was brought upon a Bond Demurrer to a Declaration in Debt upon a bond to perform Covenants of an Indenture Breach Interpretations to perform the Covenants of an Indenture of a Demise for years The Plaintiff declares that he made the Lease to the Defendant the 28. day of May and that afterwards scilicet the 27 of the same Month of May the Defendant broke the Covenant To this Declaration the Defendant did demurr because it appears that the breach is set forth to be before the lease began which cold not be and so there is no cause of Action But to this Bacon Iustice said where the postea and the scilicet are repugnant in a deed as here they are the postea shall be good to signifie the time of the Covenant broken and the scilicet shall be void Therefore shew cause why the Plaintiff should not have Iudgement Nota. Trin. 23 Car Banc. Reg. A Prohibition was prayed to the Corporation of Lincoln upon a suggestion made and sworn in this Court For a prohibition to the corporation of
if it be a free Chapel it is presentative 11. rep 150. Cowel Tit. free Chapel Lynwood 149 150. Grendous Case 4. rep Institution gives cure of soules 13 E. 4. f. â— There may be a benefice with cure not presentative VVords and if it be with cure then it was not for a superstitious use and cannot then be within the intent of the Statute 1. rep 23. And for the word all it is not alwayes taken generally but restrictively 2 H. 6. To the objection made to the Verdict that it is not found by whom it is presentative I answer Special verdict This is a special verdict and it is the expression of the lay gens and shall be interpreted according to common acceptation The rule of Court was to argue it again the Next Term because it is a cause of great consequence Mich. 23 Car. Banc. Reg. BAron and Feme bring an Action of Trespass of Assault and Battery Arrest of Iudgement in assault and battery Ioyning in an Action and declare of an assaulting and beating of the Feme and have a verdict the Defendant moves in arrest of Iudgement and for cause shews that the Baron and Feme ought not to joyn in this Action though the Assault and Battery was done to the Feme particularly but that the Baron ought to have brought the Action alone because what ever damages should be recovered would go to the Baron only and cited 9 E. 4. fol. 51. The Iudgement was arrested till the Plaintiff should move Vandicoote Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of Debt against Vandicoote Arrest of Iudgement in Debt for rent against an Executor Debt in the detinet and debet the Executor of I. D. for rent due unto him by the Testator in his life time and hath a verdict The Defendant moves in arrest of Iudgement and for cause shews that the Plaintiff had declared that the Defendant detinet et debet which ought not to be but in the detinet only the Action being brought against him as an Executor for rent due in the Testators life and cited Smith and Nichols case 7 Car. But Wild of Councell with the Plaintiff said it was good enough in the detinet and debet though it might have been in the Detinet only Hales on the contrary part said it was not good for it could not be the Debt of the Executor though he be to be charged and so he cannot be said debere but it is the proper debt of the Testator and the Executor may be said detinere because he ought to pay it Executors VVaiver and doth not Roll Justice said that it had been adjudged good both wayes and said that Executors cannot waive a Term come to them and yet they cannot be charged in the debet and detinet And prima facie in the case at the bar the Action may be brought in the debet and detinet Yet put the cause in the paper and argue it again Tanner and Laurence Mich. 23 Car. Banc. Reg. TAnner brings an Action upon the Case against Lawrence Arrest of Iudgement in an indebitatus assumpfit upon an indebitatus Assumpsit to pay unto him two shillings a piece for every cloath he should buy for the Defendant and declares for so much money due unto him and hath a verdict the Defendant moves in arrest of Iudgement and shews for cause 1. That it is not averred by the Plaintiff Averment Notice that he gave any notice to the Defendant how many cloaths he had bought for him and so it is not certain what is due to him To this it was answered that the cloaths were bought for the Defendant himself and he may very well take notice of the number of them without any notice given him A second answer was that here is a request set forth for the payment of the mony and this implyes a notice But Roll Iustice to this answer replyed Implication that the request doth nor imply a notice and so is I wists Case and besides the notice ought not to be by implication but must be averred certainly Yet let it be moved again Mich. 23 Car. Banc. Reg. THe Plaintiff in an Action upon the Case upon an indebitatus declares that the Defendant in consideration of a certain sum of mony Arrest of Iudgement in an indebitatus assumpsit due to the Plaintiff by the Defendant for rent behind upon a lease for years did assume and promise to pay the same unto him at a certain day and had not done it and for this he brings his Action and hath a verdict the Defendant moved in arrest of Iudgement and for cause shews that there is no consideration declared to ground an Action of the Case upon for rent is a reall thing and an Action of Debt ought to have been brought for it Consideration and not this Action Roll Iustice said that here is only a consideration in law set forth which is not good to warrant this Action Debt But it may be there was some new consideration that sprung from the being of the rent behind that did ground this Action but no such thing doth appear in the Declaration Therefore the Plaintiff nil capiat per billam if cause be not shewn within 14 dayes why he should have his Iudgement Wood and Salter Mich. 23 Car. Banc. Reg. IN an arrest of Iudgement in an Action of Trespasse for carrying away 24 load of tymber Arrest of Iudgement in Trespasse The exception was that the Tymber is not said to be the Tymber ipsius querentis and so no cause of Action Vpon this Iudgement was arrested Burnet and Bird. Mich. 23 Car. Banc. Reg. BUrnet the Administrator of I. S. brings an Action upon the Case against Bird Arrest of Iudgement in an Action upon the Case upon a promise and declares against him upon an Assumpsit made by the Defendant to the intestate for the payment of a certain sum of mony for a mariage portion at 2 severall dayes of payment equally and that for not performing the same in the life time of the intestate he brings this Action The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement and shews for cause that the Plaintiff doth not well set forth the granting of the letters of Administration to him for he sayes they were granted unto him by the Arch-deacon of such a place and doth not say loci illius ordinarium nor cui administratio-pertinuit 2ly It is said that the mony was to be paid at 2 severall payments which amounts to two several promises viz. a promise to pay the first ten pound on such a day and a promise to pay the other sum at another day to come and doth not allege any particular request made by the intestate for the first ten pound But Bacon Iustice over-ruled both the exceptions and said to the first Notice Ordinary Letters of ad ministration-Peculiar
set forth Jurisdiction that the place where the promise was made was within the Iurisdiction of the Court which ought to have been because it is the ground of the Action To this Roll Justice answered that it doth not appear that it is out of the Iurisdiction of the Court and it shall not be intended to be so if it be not alleged by the other party A second exception was Intendment Request that there is not a special Request set forth for the Defendant to carry and lay the Hay in the place alleged 3ly The pleading is out of Court for want of a continuance to the Court for the continuance is not to the Court Discontinuance Verdict but to such a day only 4ly The Verdict is informal and shews no cause why dammages are given Roll Iustice to the first exception said that the party ought to have taken advantage in pleading that the cause of Action was out of the Iurisdiction of the Court Pleading and not to move such matter in arrest of Iudgement for it is improper But the Court ruled the Plaintiff to shew cause why Iudgement should not be arrested upon the third exception Afterward the same Term judgement was given nil capiat per billam against the Plaintiff for the discontinuance in the Process Tentch and Cletheroe Mich. 23 Car. Banc. Reg. Pasc 22 Car. rot 332. TEntch brings an Action of Covenant against Cletheroe Error to reverse a Judgement in an Action of Covenant declares that the Defendant had covenanted with him to pay such a sum of mony into the Exchequer at such a time and for not performing this Covenant he brings his Action The Plaintiff hath a Verdict a Iudgment The Defendant brings his Writ of Error assigns for error that the Plaintif had not set forth in what County the Exchequer is and cites Hobs his case Pasc 8 Car. County and a case 22 Car. C. Banc. That the County is material to be alleged by reason of the Venue 1 E. 4.3 Cooks institut 210.21 H. 6. f. 4. The Court held that the County where the Exchequer was ought to be alleged Exchequer because the Exchequer is transitory and not fixt to one place Venue and so there can be no Venue because it appears not in what County it is And for this cause the Iudgment was reversed Sawyer and Russell Mich. 23 Car. Banc. Reg. SAwyer brought an Action upon the Case for speaking these words of him Thou art a Witch and hast bewitched my Cow Arrest of Iudgment in an Action upon the Case for words VVitch-craft The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement for these reasons 1. Such bewitching as is mentioned in the Declaration is not punishable by the Statute of 1 lac for it comes not within any of the branches of that Statute neither that which speaks of death by Witchcraft nor of the other branch for it is not averred that the Cow was hurt or destroyed by the bewitching and so the party is not punishable Intendment And it shall not be intended to be so for the party shall not be punished by an Endictment by an intention neither shall he be here in this Case And 2ly words ambiguous of this nature shall be taken in mitiori sensu Roll Iustice said that these words VVords Thou hast bewitched my Mothers Milk and Drink have béen adjudged actionable and here is a scandal of the party of whom the words are spoken and the words thou hast bewitched implies hurt done to the thing bewitched and this case differs from an Endictment for an Endictment must be more certain than these words need to be And a violent intendment as here is may bring one within the compass of an Action Therefore let the Plaintiff have his Iudgement if better matter be not shewn Monday next Nevill and Mott. Mich. 23 Car. Banc. Reg. NEvill brought an Action upon the Case against Mott and declared Arest of Iudgment in an action upon the Case for words that the Defendant being in company with him with a Constable did speak thus of the Plaintiff to the Constable There he is take him for I charge him with flat felony and after spoke these words of him also Mr. Nevill hath taken my Sheep with a felonious intent The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement that the words are not actionable and cited Poland and Masons case Hob. Rep. and alleged these reasons also 1. Because the words were spoken to a Constable in prosecution of Iustice which shall not be taken hold of by a private person as a particular injury meant to him Averment 2ly It is not said the words were spoken falso malitiose as it ought to have been But to the second Exception Roll Iustice said It is not not necessary to say they were spoken falso malitiose where they appear to be scandalous for there the Action lies well though it be not so expressed and if one charge another with suspition of Felony and speak such words of him if they appear to be maliciously spoken an Action very well lies The rule was for the Plaintiff to take his Iudgement if better cause be not shewed to the contrary King and Hide Mich. 23 Car. Banc. Reg. HIde moved for the quashing of an Endictment taken before Commissioners of Sewers For quashing an Edictment before Commissioners of Sewers wherein he was endicted for a nusance made in the high way by reason of penning of water in the River at his Mill wherby the water over-flowing the Banks did annoy the way and he took this exception to the Endictment that it did not say it was a navigable River But to this Roll Iustice answered it was not necessary to say it was navigable for if it be a common passage for water it is sufficient and lies within the conusance of the Commissioners But Roll took another exception to the Endictment That it sets forth this overflowing of the water to be a nusance to the high way Nusance and for this the party is endicted whereas Commissioniers of Sewers have no power to meddle with such nusances in the way but only with passages by Water And for this cause the Endictment was quashed Monger and Shaterton Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 569. A Writ of Error was brought in this Court to reverse a Iudgement given in the Barrow-Court of Southwark Error to reverse a Iudgement given in the Burrow-Court of Southwark and the Error assigned was that in the Venire facias one of the Iury is called Richardon and in the Habeas Corpora he is called Richardson which are two several names and so it is incertain what the proper name is To this the Councel on the other side said that this fault is helped by the Statute it being after a Verdict But Bacon Iustice said
Verdict he doubted whether it could be helped now in this Court though it might have been helped in the inferior Court where the Action was brought by examination of it and therefore ruled to shew cause why Iudgement shall not be reversed on Friday next It was this Term reversed at the Defendants motion for his own expedition Brooke and Brook Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 580. BRooke brings an Action of Debt upon an Obligation against Brook the condition was Demurrer to a plea in debt upon an Obligation that the Obligor should make an Estate of inheritance to the Obligee in such lands at such a day and place and for not doing it he brings his Action The Defendant pleads that he was ready at the day and place to make the Plainiff an estate of inheritance in the lands The Plaintiff demurs to the plea Notice and for cause shews that the Defendant doth not shew that he gave notice to the Plaintiff of his being there To this Roll Iustice said it is not necessary to give notice of the day or place A second exception was that he had not shewed that he gave the Plaintiff notice what estate of inheritance he would make him To this Roll Iustice said he ought to have shewn Time Place that he gave notice what estate he would make him and therefore let the Defendant shew cause why the Plaintiff should not have Iudgement Kale and Iocelyne Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1282. KAle brings an Action of Debt against Iocelyne an Executor Demurrer to a plea by an Executor in Debt for reâ— brought against him Plea Executor VVaiver Covenant and declares for rent grown due since the death of the Testator by virtue of a lease for years made of certain lands by the Plaintiff unto the Testator which yet continues and declares that the Executor debet detinet c. The Defendant pleads fully administred the Plaintiff demurs upon the plea For pleading in the debet and the detinet Bacon Iustice said it was good and so had been adjudged To which Roll Iustice answered it had been adjudged pro con to be good and to be bad and he said that an Executor cannot waive a Term let to the Testator for he is bound by Covenant to hold it and said that the Declaration was good in the debet and detinet prima facie for it shall be intended that the land let to the Testator is worth as much by the year as the rent that is paid for it till the contrary be shewn and then it is reason that the Executor be charged Bacon Iustice said that the Executor may waive the possession if he find that the rent is more than the land is worth otherwise it may be mischievous to him Roll. Iustice said that the Declaration must be in the detinet and debet otherwise it will be mischievous to the Plaintiff and said that a specialty shall be satisfied before a rent reserved upon a lease by deed Allets which Bacon denied and it was said that a lease for years shall be assets in the hands of an Executor although the rent reserved be the full value of the Lands let by the lease The Defendant was ordered to shew cause why Iudgement should not be given against him Baker against Edmonds Mich. 23 Car. B. Reg. Hill 22 Car. rot 222. BAker brings an Action upon the Case against Edmonds Special verdict in an Action upon the Case whether a verdict maintains the issue joyned and declares that whereas I. S. was indebted unto the Plaintiff in a certain sum of mony and afterwards being so indebted became a Banckrupt and that a Comission upon the Statute of Bankrupt was taken out by him and other creditors against him and that it was found that the Defendant was indebted to the Banckrupt the Commissioners of the said Commission did assign over the Debt of the Defendant mentioned in a certain schedule amounting to such a sum unto the Plaintiff in part of satisfaction of the Debt owing unto him by the Banckrupt by virtue whereof he demands the said Debt of the Defendant who did assume promise to pay the same and for not performing his promise he brings his Action the Defendant pleads non Assumpsit and thereupon an issue was joyned and a speciall verdict was found to the effect as the Plaintiff had declared but they further find that the Debts mentioned in the schedule and assigned over to the Plaintiff amounted to such a sum whereas they find that the Defendant did not owe unto the Banckrupt so much as that Debt assigned is but a lesse sum And upon this verdict the question was Verdict Issue Assignment whether the verdict did maintain the issue which was non Assumpsit if it did then they find for the Defendant if not then for the Plaintiff In the breaking of the Case it was moved whether the Assignment were good or no in regard that the Commissioners had mistaken the Debt for the Debt assigned by them was greater than the Debt found by the Iury and so might be another Debt But to this Roll Iustice said that the assignment was not judicially before them in question for if it were it would be judged an ill assignment but here it comes not in issue but only whether the Defendant did assume and promise or no and the speciall verdict concludes not upon the assignment but whether the speciall matter found do maintain the issue or no therfore he was of opinion that the Plaintiff ought to have his Iudgment Bacon Iustice differed in opinion said that it is dangerous for Commissioners of Bankrupt to assign Debts particularly Commissioners The rule then was to argue it the next Term At which time Ward of Councel for the Defendant argued that the verdict was for the Defendant for this reason viz. Because the Debt laid in the Declaration and the Debt found by the verdict are not the same and so the Defendant did not assume and promise that which is laid in the Declaration for there is no such Debt found and if he should be charged with that he might be doubly charged Averment for he may be again charged for the debt found by the verdict and circumstances of quantity time and place are averred in a Declaration to make things certain and if they fall the Declaration is not good 18 E. 3. fol. 25. 1. rep 74. Palmers Case 2ly The Declaration is insufficient for it expresseth not what the sum is but saith a sum mentioned in a schedule of Debts which is incertain Roll Iustice interrupted Ward and said all that you have argued is out of dores but the last matter touching the Declaration and to that Hales of Councell with the Plaintiff said the Declaration is good and certain enough for there appears no other sum in the schedule than is mentioned in the Declaration Bacon Iustice The
Iudgement of Law it is presumed that the Covenant shall not be broken and that it shall not be respected in regard of the incertainty whether it shall be broken or no but the Law takes notice of the Will and it is of temporal conusans 2 Rich. 3. 11 H. 7. f. 12. and it takes notice of a legacie to try the right of it and to discharge it and the Executor here is compellable to pay the legacies and cannot refuse it neither by the Common law nor by the Spiritual law Covenant but it is objected that it is inconvenient that one shall avoid his own Covenant by his own devise To this I answer he might have done it in his life by giving away all his goods and 2ly There shall not be intended to be fraud in the Will and there are more inconveniences of our part in not paying the Legacies than on their part by paying them for by this means men shall have no power to dispose of their own Goods by Will by reason of Covenants in Leases and Déeds made by them and the Spiritual Court cannot compell a Legatée to put in security for his Legacy Security as is surmised Adjourned to the next Term to give Iudgement Mich. 23 Car. Banc. Reg. THe Court was moved to deliver their opinion in a Case formerly moved VVhether an Attornment good or not wherein the Question was whether an Attornment made by a Lessée for years the same day that the rent was due to be paid upon his Lease to him that had purchased the reversion of the Land let unto him and for which the Purchaser had brought his Action Attornment be a good Attornment Roll Iustice said that it is a good Attornment by the averment made and by the finding of the Iury and that Iudgement ought to be for the Plaintiff Bacon Iustice agrees and said the Attornment shall be intended to be before Sun set and not afterwards Therefore let the Plaintiff take his Iudgement Parmiter against Cressey Mich. 23 Car. Banc Reg. THe Defendants Councel upon a former rule of Court to shew cause Cause why Iudgement should not be given in an Action upon an Assumpsit Averment Notice Request offered for cause why the Plaintiff should not have Iudgement 1. Because the Plaintiff had not averred that he did make any election of the Wines that the Defendant was to deliver unto him 2ly He doth not aver that he gave the Defendant any notice of his election and there being a Condition precedent to be performed on the Plaintiffs part implyed the Defendant cannot perform the Bargain without notice of that performance 2ly Here is no good request expressed either in substance or circumstance for for the circumstance there is but two daies to do it in which it cannot be well intended it could be done 2ly It is said he did not deliver vinum praedictum which is an incertain implication of a Request for the word deliberare is not a proper term to express the Request and the verdict doth not help it Bacon Iustice There ought to be an election by the Plaintiff but the Defedant ought first to shew the Wines and it was of his part to have appointed the time when he would shew them Roll Iustice The Promise and Request was at Norwitch and it was sufficient for the Plaintiff to make the Request there but the Defendant ought to shew the Plaintiff the Wines Election without which the Plaintiff can make no election and the substance of the Declaration is to this intent Iudgement was given for the Plaintiff Mich. 23 Car. Banc. Reg. BY the rule of the Court VVâ—â— a Prohibition should not be granted this day cause was offered to be shewn why a Prohibition should not be granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half-blood when there was a Brother of the whole-blood who sued for them and was denyed The cause shewed was that it is in the power of the Ordinary to grant Administration either to the Brother of the whole-blood or to the Sister of the half-blood at his election because they are in equal degrée of kin to the Intestate And to this the Court agreed But Bacon Justice said that in the Case at the Bur Letters of Administration are granted to the Husband and his Wife and so to one viz. the Husband who is no kin at all to the Intestate but a Stranger and if he survive his Wife he shall have all the Goods and all the kindred will be defrauded which is not reasonable and therefore the Administration is not good And for this reason a Prohibition was granted Mich. 23 Car. Banc. Reg. IT was moved in arrest of Iudgement Arrest of Iudgement in Trover and Conversion that the Plaintiff had declared of the Trover Conversson of a cetrain number expressed in the Declaration of pieces panni lanii Anglice of red yellow and black Coath which is incertain and cannot be used as it is here to expresse Cloaths of divers colours for panni lanii signifies only wollen Cloaths But Bacon Iustice said all is but wollen Cloath though they be of divers colours and therefore it is good enough Hodsden the Secondary said sometimes the colours are used to be expressed and sometimes not Bacon It is better to express the Colours than not yet it is good enough without the expressing of them Therefore let the Plaintiff take his Iudgement Willison and Crow Mich. 23 Car. Banc. Reg. VVillison brought an Action upon the Case against Crow Arrest of Iudgment in an action for words for speaking these words of him You are a bankrupt Skrub and hath a verdict it was moved in arrest of Iudgement that the words are not actionable because they are Adjective words and so are not positive enough to ground an Action But the Court held they were actionable for the word Banckrupt in it self was not an Adjective and the joyning of it with Skrub made it not so but it should be understood as much as to say You are a Skrub and also a Banckrupt And judgement was given accordingly The King against Holland Hill 23 Car. Banc. Reg. THe Court delivered their opinions in the Case betwéen the King and Holland formerly argued And first Bacon Iustice said Iudgement given in the Case between the King and Holland that there can be no Iudgement for there is a mis-tryal in it for first there is no Venire facias and secondly there is a discontinuance because the Venire should be to retorn duodecem probos legales homines quorum quilibet habet 40 s. lands by the year at the least it is every of whom having 4 l. lands by the year which is contrary to the direction of the Statute To this Roll answered that he held the Venire to be good and so the tryal good for if the Iury hath every of them 4 l. a year in
abated To the 3d. exception That the Demand is more large than the Writ because a Parish may be larger than a vill and the Demand is the Parish of Imber I answer That the Vill and Parish shall be intended to be of the same extent if the contrary do not appear Cooks lit f. 125. 2ly Although the Parish may be larger than the Vill yet it may lye in the Vill and the contrary doth not here appear and the Case is so that it is impossible that the Parish should extend into another Vill 1. The office of the Writ is to restrain the Demand and the Writ ascertains the Demand 19 E. 3. Fitz. Dower 95. 9 E. 4. f. 16. by Chock 2ly There is a restriction within the body of the Demand for the Demand refers to the Writ and is bounded by it 42 Eliz. Wook and Godins Case a small implication will make a Vill and Parish to be all one Implication and so it is here 42 43 Eliz. Com. Banc. Hob. 12. Case Brook and Spencer Trin. 16 Iac. in this Court rot 504. Marks and Marks And as to the Exception taken to the execution Execution that dammages are given for more than is demanded 1. Here is no confession as it is supposed on the other side that the Hundred in demand doth lye in another Vill. 2ly It is impossible for dammages to be given for more of the Hundred than lyes within the Vills mentioned in the Writ and so are there no dammages given for that part of the Hundred which lyes in Sutton parva as is objected on the other side for no more shall be recovered than is contained in the Writ 9 E. 4. ◠16 17. The Question there was whether it were a Plea to the Writ 17 E. 3. f. 44. The Court desired to hear another Argument Castle against Dinely Pasc 24 Car. Banc. Reg. Trin. 23 Car. rot 1078. CAstle brings a Writ of Error to reverse a Iudgement given against him in the Court at Owse-bridge in York Error to reverse a Iudgment in an action upon the Case in an Action upon the Case upon an Assumpsit The Error assigned was that the day of the Month in which the promise was made is in Figures To this the Councel on the other side said that heretofore it had béen held to be Error Error but now since the Statute of Ieofailes after a verdict is no Error But I. Turner of Councel with the Plaintiff in the Writ of Error said That it is a material exception now for the Assumpsit is the ground of the Action and therefore the day must néeds be material Another exception was that the Venire was Venire facias duodecem c. de Riliva tua and the Venu was in the City of York But to this exception it was answered that the Record is de Civitate Eborum in Baliva tua and so it is well enough and of this opinion was the Court. But the Court held the first Exception to be good Whereupon the Councel for the Defendant in the Writ of Error prayed the Iudgement might be reversed for his Clyents dispatch and so it was The King against Andrews Pasc 24 Car. Banc. Reg. ANdrews was endicted for Murther and out-lawed upon the Endictment Arraignment upon an Outlawry for Murder and taken upon the Out lawry and brought to the Bar and demanded what he could say why Iudgement should not be given against him The Prisoner said he had brought his Writ of Error to reverse the Outlawry and prayed it might be allowed which was granted and the Writ read by Broughton the Secondary on the Crown-side The Prisoner desired he might have Walker Hales and Pepes assigned him for his Councel which the Court granted The Councel prayed they might have a Copy of the Record Roll Iustice said that the Prisoner himself ought to shew matter in Law for Error which the Councel doubted Error But the Court over-ruled it yet agreed that the Record should be read unto them which was done Vpon the reading Walker took these exceptions 1. The Process is not well awarded for the Capias is not praedict Andrews and so it appears not who was out-lawed whether the Prisoner or another of the same name 2ly It is not said that the Process is awarded by the Court nor at what Sessions it was awarded Roll Iustice It is necessary for it is recorded there 3ly It appears not what party is dead whether he that was struck or another 4ly It doth not appear in what part of the body the Wound was given nor with what weapon The Court said that they will hear the Kings Councel before they would conclude any thing The Councel moved that the Prisoner might be bayled because it was fourteen years ago since he was endicted The Court answered till you are assigned of Councel upon Record we cannot bayl him at your prayer Bayl. Then the Councel desired a Copy of the Record ad quod non suit responsum but the Court said to the Councel take more time to consider of other Exceptions for if these shall be over-ruled your Clyent is gone viz. must be hanged At another day he was bayled by four persons and bound to prosecute his Writ of Error with effect Pasc 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation for 3000 l. Arrest of Iudgement in Debt upon an obligation the Defendant pleads that he had paid the mony on such a day whereas the truth of the Case was that there was two daies of payment limited in the Obligation and the Defendant had paid part of the monies upon one of the daies of payment and the rest upon the other day and not all at one day The Plaintiff replies that the Defendant did not pay the mony upon the day alleged by the Defendant in his Plea and upon this an Issue is joyned and a verdict found for the Plaintiff Verdict the Defendant moves in arrest of Iudgement and shews for cause That the Verdict is imperfect because it doth not find that the Defendant had two daies of payment but concludes that he did not pay the mony upon one of the daies Roll Iustice If you have two daies of payment to plead and you rely upon one day in your pleading Champerty and issue is joyned upon that and it be found against you you must be barred by it Hales urged That here was a champertous agreement for there was no consideration for the assignment of this Obligation and Indenture to the Plaintiff upon which the Action is brought by him The Iudgement was stayed till the other part should move More against Stone Pasc 24 Car. Banc. Reg. AN Action of Trespass of Assault and Battery was brought by the Plaintiff for assaulting and beating and taking his Servant for two Months Arrest of Iudgement in Trespass by Assault and Battery and taking away his Servant Retainer per quod
unto the Defendant the Arbitrators had awarded that the Plaintiff should pay unto the Defendant six pound in full satisfaction thereof which is lesse than they acknowledge to be due so that it cannot be a satisfaction 9 H. 7. f. 11. 46 E. 3. f. 7. 2ly The Award is that one of the parties shall deliver Dimissionem praedictam whereas it ought to be Indenturam dimissionis for the dimission is but the consent of the party to the Indenture and not the Indenture it self Cooks Instit 43 6. 3ly They award to deliver dimissionem praedictam in the House of a Stranger which ought not to be for the party must commit a trespass to do it if he cannot get leave of the Stranger which he is not bound to do 9 H. 7. 16. 18 Ed. 3. 23 19 Ed. 4. 41. The words are that it shall be delivered at the House and in and at are all one in grammatical construction Mich. 23 Car. Coleman and Painters Case 4ly They award one of the parties shall release thrée years rent to the other and there was but two years rent due so that it is impossible to be done 5ly They have made their Award upon a thing not submitted viz. that there should be a release of all Actions which might concern the rent Averment and lastly the party ought to shew he hath performed the Award on his part which he hath not not done 8 H. 6. 18. Brook Arbitrement Twisden of Councel on the other side to the first Exception said it is not to the purpose for Arbitrators may award a lesse sum than is due in satisfaction of it and though it be ill yet the Award is good as to so much whereof a good breach is assigned To the second he answered that the words dimissionem praedictam refer to the Indenture pleaded and so that is well enough To the third he said that the Award is that the Indenture shall be delivered at the House and it is lawfull for him to go to the House though not into the House of a Stranger The the 4th he answered that the words are to be understood that the party shall not pay the rent and not that he shall release it To the fift he said that the words alleged are no part of the Arbitrement And if the Obligation be released it is not material for the Arbitrement is performed and the words Premises restrain the Arbitrement to the Submission And to the sixth it is not necessary to shew how the Arbitrement is performed for if it be not the other party hath his remedy Roll Iustice said that in 12 Iac. it was adjudged that if an Arbitrement was for a thing to be done in or at the House of a Stranger it was well enough for it may be intended to be done at the House without doing a Trespass though not in the House except the contrary be shewed by the party In Lynyn and VVilliamson Hoofs Case and as to the words dimissionem praedictam that is also well enough for it shall be intended the Indenture of demise But let us have Books and move it again It was moved again and another exception taken that the promise was released Upon which the Court would advise Smith against Hobson Trin. 23 Car. rot 1078. SMith an Inn Keeper in VVarwick brought an Action upon the Case against Hobson Arrest of Iudgement in an action upon the Case for speaking these words Collonel Egerton had the French pox and hath set it in the House meaning the Plaintiffs House and William Smith and his wife meaning the Plaintiff and his Wife have it and all you The Plaintiff hath a verdict The Defendant moves in arrest of Iudgement and for cause shews that the words are not actionable for the words are that Collonel Egerton hath set the French pox in the House which is impossible for the House could not have the pox and the words William Smith and his Wife have it shall not be meant that they have the pox but the House for that is the next Antecedent to the words to which they shall refer And also where words are spoken doubtfully whether they be spoken true or false they shall be taken to be true and it may be here the words are true and then no Action lies for speaking of them also the Baron and Feme ought to joyn in the Action if they be actionable Ioyn in Action for they are spoken to both their prejudice and the Action is not to be brought by the Husband alone as here it is Also in this Case the words being spoken of a House the Writ of Enquiry of Dammages must be what Dammages is come to the House which cannot be Roll Iustice If an Action be brought for words and part of them be actionable and part are not yet an Action lyes for them which are actionable And in this Case the Husband alone may bring the Action for dammages to himself and he may afterwards bring another Action for the dammages done to his Wife And he held the words here actionable and bid the Plaintiff take his Iudgement if cause were not shewn to the contrary Saturday following Iudgement was afterwards given accordingly Marshall against Porter Hill 23 Car. rot 769. MArshall brings an Action of Trespass Quare vi armis for taking away his Cattel Demurrer to a special plea in Trespass Quare vi armis The Defendant pleads non Cul. as to the vi armis and as to the taking of the Cattel he pleads that he bought them in a Market-overt The Plaintiff demurs to this Plea and the Defendant joyns in the Demurrer The Exception taken to the Plea was that the Defendant doth not shew what day the Market was kept nor whether it were out of Lent according to the Patent for the keeping of the Market Roll Iustice said this ought to have been averred in the Plea and therefore the Plea is not good Averment Therefore let the Plaintiff have his Iudgement if cause be not shewn to the contrary Pitcher against Symons Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 189. SYmons brought an Action upon the Case upon an Assumpsit in the Compleas against Pitcher and hath a verdict and a Iudgement Error to reverse a Iudgement in an action upon an Assumpsit Issue Amendment The Defendant brought a Writ of Error here to reverse the Iudgement The Error assigned was that there was no issue joyned between the parties to the sute for it is praedictus Iosephus similiter whereas it should be praedictus Robertus Roll Iustice cited 9 Eliz. Dyer and said if it be praedictus Richardus where it ought to be Robertus it cannot be amended because the Issue is altered for it is joyned between other parties and so is it in this Case But move it again Friday next Deacon against Forest Trin. 24 Car. Banc. Reg. DEacon brings an Action in this Court against Forest VVhether
Reg. MEmorandum on Wednesday the 14 of November 1648 Henry Roll Serjeant at law then one of the Iustices of this Bench took his place in Court as Lord chief Iustice of England and Twisden moved for a day to plead between Dunch and Smith being the first motion that was made in Court after he took his place The Lord chief Iustice Roll first took his place Popham against Hunt Mich. 24 Car. Banc. Reg Mich. 23 Car. rot 558. POpham brings an Action of Covenant upon an Indenture against Hunt Demurrer to a Declaration in an action of Covenant the Defendant demurs to the Declaration and the Plaintiff joyns in the Demurrer Vpon the pleading the Case appeared to be this a Feme sole delivers a certain sum of mony into the hands of I. S. and the Defendant thereupon Covenants with the Feme to pay unto A. B. 100 l. a yeer so long as the mony should continue in the hands of I. S. The Feme takes Baron The hundred pound per annum is arrere The Baron makes his Executor and dyes and after his death the 100 l. a yeer is behind also Popham the Executor brings this Action of Covenant Covenant and the question was whether the Action was well brought and the Court held the Action did lye for the Covenant doth concern the Executor because he represents the Testator but the question here is whether the rent due after the death of the Husband ought to be paid and how it shall be known whether he be dead for it is not specially alleged and if he be not dead there is no cause of Action Therefore consider of this Bragg against Nightingall Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 601. BRagg brought an Action of Covenant against Nightingall upon an Indenture Demurrer to a Declaration in an action of covenant The Defendant demurs to the Declaration The Case was this The Plaintiff let by Indenture certain houses for divers years to the Defendant and covenanted with him to repair the houses by such a day expressed in the Indenture The Defendant by the same Indenture covenanted with the Plaintiff that from the time that the Plaintiff was to repair the houses unto the end of the Term for which they were demised he would well sufficiently repair and leave them so repaired at the end of the Term for not performing of this Covenant on the Defendants part the Plaintiff brought his Action The cause shewed for the demurrer to the Declaration was that the Plaintiff had not shewed that he on his part had repaired the houses according to his Covenant and so the Defendant supposed he was not bound to repair because he was to repair from the time the Plaintiff had repaired them and not before and so there is no cause of Action After divers motions Roll chief Iustice said That here was a reciprocal Covenant to be performed on each part Covenant and although one do not perform the Covenant on his part this doth not excuse the other party but he is tyed to perform his Covenant neverthelesse and if he do not an Action lyes against him and he may bring his Action also against the other that first broke his Covenant and therefore the Action lyes here against the Defendant and so the demurrer is not good upon the cause shewed But if this were not a reciprocal Covenant the Law would be otherwise and cited Hayes and Hayes Case 11 Car. and Skippon and Lucas his case 10 Car. But Bacon Iustice held the contrary that the demurrer was good for that it appears that it was the intent of both partyes that the Plaintiff should first repair and after that the Defendant should keep the houses in repair The Court would advise Smithson against VVells Mich. 24 Car. Banc. Reg. SMithson brought an Action upon the Case upon a promise against Wells A special verdict in an action upon the Case upon a promise and declared upon a promise made to save the Plaintiff harmlesse from such an obligation when he should be thereunto required The Defendant pleaded non Assumpsit and upon this a special verdict was found viz. generally that the Defendant did make promise to save the Plaintiff harmlesse from the Obligation that he had not done it The question hereupon was whether the verdict had found the same promise set forth in the Declaration because that was to save harmlesse upon request Verdict but the promise in the verdict mentions no request to be made but finds a promise generally to save one harmlesse The Court held that the Plaintiff ought to have Iudgment for that it was the same promise found in the verdict which was set forth in the Declaration for if one promise to save one harmlesse from a thing he that made the promise ought to do it at his perill without request Request Covenant and the request is not material although the promise say upon request But if he be damnified if I do recompence him upon request made the Covenant is not broken Emerson against Ridley Mich. 24 Car. Banc. Reg. Pasc 24 Car. rot 400. RIdley brought an Action of Debt upon an Obligation against Emerson Error upon a Iudgement in Debt upon an Obligation The Condition of the Obligation was that the Defendant should not put his Cattel upon such a Common before a tryal and proof for the Common should be for the Commoners and assigns a breach that he did put on his Cattel upon the Common before the Tryal for the Commoners upon this an Issue was joyned and a verdict and a Iudgement for the Plaintiff The Defendant brings a Writ of Error and assigns for Error that the breach of the Condition assigned doth not agree with the Condition of the Obligation and so the action being brought upon the Obligation and no breach of the Condition being rightly assigned there appears no cause of Action and so the Iudgement is erroneous But it was said by the Councel with the Defendant that tryal and proof of a matter in common intendment is all one Intendment and so the difference alleged was only verbal and not real and it shall be taken to be a breach of the Condition and so there is good cause of Action and the Iudgement thereupon given is well enough Holhead on Councel on the other side denyed it to be all one in sense for that a Tryal may be and yet the Title may not not proved and there may be a Iudgement upon a Nihil dicit where is nothing proved and so concluded the Writ of Error did lye The Court desired to have Books Postea Jones against Iacob 24 Car. Banc. Reg. IOnes a Citizen and Pewterer of London Iudgement in an action upon the Case brought an Action upon the Case against Iacob for these words spoken of him He is gone and doth hide himself for debt and for ought I know he is a Banckrupt The Plaintiff had
and that cannot be known how much it may be and consequently there is no award but both parties are at liberty to go to law as they were before An incertain award not good and so no end is made between them by the award according to the intent thereof and these books were cited against the award 20 Ed. 4. fol. 1. et 4.9 H. 7 fol. 14.8 Ed. 4. fol. 20. It was ruled by the Court to shew cause why Iudgement should not be against the Plaintiff per nil capiat per billam The King and Place Trin 23 Car. Banc. Reg. THe Case between the King and Place adjourned Error to reverse a Judgment upon an Endictment upon the Statute Scandalum Magnatum Pasc 23 Car. was again moved which was this Place was indicted before Finch and Crawley Iustices of Oyer and Terminer for these words spoken against the Queen mother of France viz. the Queen mother is the Whore of Babylon and is a Whore and hath had a Bastard and all the Noblemen that will not ioyn with me against her are Rogues and Rascalls To this endictment the Defendant pleaded and was found guilty by the Iury and Iudgement given against him Whereupon he brings his Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. against the body of the Endictment it self and that he ought not to be Endicted for the words because they are neither spoken against the Common law nor against any Statute law 2. Against the proceedings upon the Endictment which were against law being too speedy for he was Endicted before Iustices of Oyer and Terminer and tryed in one day whereas there ought to have been 15. days betwixt the preferring of the Endictment and the tryal 3. The Venire is against law for the Court did chuse try and swore the Iury which ought not to be 4. Part of the Iudgement is that the Defendant shall be bound to his good behaviour which cannot be upon such an Endictment as was before them 5. The Endictment doth not say that the words were spoken contra pacem 6. Part of the Iudgement is that he shall be set upon the Pillory and lose his cares which no law warrants but only to be set there to the view of the people Imprisonment with a paper on his head 7. The Iudgement is that he shall be imprisoned for a year without bail which ought not to be To this last exception the Court answered the party might be so committed But they said that the Iustices of Oyer and Terminer cannot try an Endictment the same day nor Iustices of peace at the same Sessions in which it was preferred Tryall and they cited one Barnabyes Case 13 Car. and Pridians Case 6 Car. 22 E. 4. et Plow 44. But they said Iustices of Eyr may try an Endictment the same day Roll Iustice said the Kings Bench is a Court of Eyr in the County where it sits Eyr and therefore they may try an endictment removed here out of the same County the same day but not if it be removed hither out of another County for in that case it is only a Court of Oyer and Terminer But Bacon denied it and said so was my Lord Cooks opinion and it was also said that Iustices of Oyer and Terminer cannot proceed upon an Endictment which is not taken before themselves but Iustcices of Gaol delivery may and the Court also held that the juratores electi tryati et jurati by the Court as it must necessarily be here understood Iury. was illegal for the Iury ought to be electi by the Sheriff out of the County and lastly the Court held that legally there ought to have been 15 dayes between the Endictment and the tryal and for these reasons ordered to give notice to the Kings Sollicitour or Serjeant to shew cause why the Iudgement should not be reversed Hill and Farmer Trin. 23 Car. Banc. Reg. Hill 17 Car. rot 674. AN Action of Debt was brought in the Common pleas upon an obligation Error in Debt upon an obligation and a Iudgement upon a demurrer was given for the Plaintiff the Plaintiff brings a Writ of error in this Court to reverse the Iudgement and Assignes for Error that the Obligation upon which the Action was brought and Iudgement was given is a void obligation by the Statute of quinto and sexto of Ed. 6. made against buying of Offices But Roll Iustice answered that the Iudgement in the Common pleas was given upon a mispleader there and therefore you should make that good first before you move new matter And there is another Error also in the pleading which was not touched upon in the Common pleas which is this first the plea is of the Office of the delivery within the Office of the Armory Declaration and after he referrs the plea to the Office of the Armory which is another Office and so she Declaration is double Another exception was that the word Armentarius was used for Armamentarius Monday following was given to shew cause why Iudgement should not be reversed The King and Marshall Trin. 23 Car. Banc. Reg. MArshall brings a Writ of Error to reverse a Iudgement given against him upon an Endictment of barratry Error upon an Endictment and takes these exceptions 1. That it doth not appear in the Endictment before what Commissioners the Endictment was taken upon which the Iudgement was given and so the Endictment is not good for the incertainty of it and consequently the Iudgement is erroneous that is given upon it for it ought to appear by the Endictment that it was taken before the Iustices of Assise or Iustices of Peace or of the Gaol-delivery 2. The Iudgement is quod solvat tantam denariorum summam and shall find sureties for the good behaviour and this is rather an award than a Iudgement To this exception Roll Iustice answered Iudgement if it be a good order it is a good Iudgement and the order is part of the Iudgement yet let the Kings Councell have notice and the Prosecutor shew cause why the Iudgement should not be reversed Trin. 23 Car. Banc. Reg. VPon a verdict given in an ejectione firmae it was moved in Arrest of Iudgement Arrest of Iudgement in an ejectione firmae and the exception was that the Plaintiff was ejected de uno Crofto which was said to be of an uncertain signification and because the Plaintiff conceived the Court doubted whether an ejectione firmae lay of a Croft he durst not defend it but moves for a special Iudgement for the rest of the land contained in the Declaration and prayed that he might release the damages as to the Croft Rolle Iustice doubted whether an ejectione firmae lyes de uno Crofto Ejectione firmae Formedon Assise and said that a Formedon lyes not of a Croft but that an Assise doth because it is put in view to the recognitors but a
Court held that the pleading of a bargain and sale to be debito modo irrotulatum secundum formam statuti is good enough Opinion of the Court touching pleading of an Enrollment though it be not pleaded to be inrolled within six months yet ruled it should be moved again The same term Iudgement was given that the Plaintiff nil capiat per billam because the Deed was not said to be enrolled neither secundum formam statuti nor within six months but only debito modo which may be an Enrollment at the Common law and not according to the Statute The City of London and Estwick Trin. 23 Car. Banc. Reg. THe Court was again moved in the Case between the City of London and Estwick Argument concerning the Writ of Restitution to a common-Councel-mans place Amendment that the return of the City might be amended although it were filed because there are Presidents where it hath been done Roll Iustice answered there was never any amended after the filing before H. 7ths time It was replyed by the Councel that the return being of this Term it might be amended for it rested in the breast of the Iudges But Roll Iustice answered to this that Acts of the Court remain in the breast of the Court the same Term but not acts of others and therfore this being so was not amendable and said that inferiour Courts cannot amend a presentment in matter of fact for that were to alter the custom of the courts and it was then said that Endictments had been amended after the filing of them And Alderman Langhams Case was also urged where a retorn of the City was amended after it was filed yet this was ruled not amendable Twisden of Councel with the City argued that Estwick ought not to be restored to his place of a Common-Councel-man for these reasons 1. Because it was not a place of profit and so it was no damage to him to be removed and therefore his sute was to no purpose 2ly It is not a place of Government and so no dignity in it but it was a place meerly of service and trouble But Roll Iustice answered that a writ of restitution had been adjudged good to restore a Constable to his place Restitution which was more a place of service and trouble than this 3ly There is a judgement against Estwick in a Court of Record and it must be avoided either by error or attaint as the Statute directs and the partie cannot be restored by a Writ of Restitution and for the objection that the Return is too general he answered that Faith is to be given that there was a disturbance made by him as is suggested though it be not so plainly expressed as it might have been 2ly Here appears a contempt to the Court and for this he may be suspended 3ly The Custome is well pursued upon the whole matter taken together 4ly The Custome is well laid for the commitment ad placitum for it refers to the words suspendere vel amovere that is either one or the other 5ly The word require amounts to a command being spoken in a Court of Record and the disobeying it was a contempt Hales of Council on the same side argued much as Twisden had done and added to it as followeh 1. That there appears a reasoanble cause precedent why he should be suspended and then it follows they may suspend him ad libitum 2ly The alleging of the disturbance is not material for that is not the ground of his a motion from his place but only the inducement to it 3ly Requisitus shall be understood requisitus per curiam it being alleged to be in Court 4ly Recusavit is more than denegavit and implies he did not the thing enjoyned him and so might well be committed 5ly There may be cause to grant a Writ of restitution though no cause for the restitution For a common-Councel-man of Coventry had a Writ of restitution out of this Court and yet upon his sute was not restored The Recorder moved for a longer day to be heard for the City because it was a weighty cause and said that no restitution could be made for the Writ was not well directed and so is not well executed The Plaintiffs Councel desired expedition in the Cause Whereupon Roll said here hath been no delay in the business but the rule is against you and he took these exceptions to the Retorn 1. It appears not by the retorn that the Plaintiff is removed from his place but only that he is suspended and then he may well be restored and it is not said for how long time he is suspended 2ly It is not said that he is suspended for a reasonable cause 3ly It is not said what the disturbance was that he made for which he is suspended And further said that the Court of the Common-Councel is not a Court of Record Error Restitution for no Writ of Error lies there but is a Court only of Advise Bacon Iustice as Roll and said that Estwick had only remedy to be restored by a Writ of Restitution and not by a Writ of Error or an Attaint Adjourned till Saturday to hear Councel for the City Rawson and Bargue Trin. 23 Car. Banc. Reg. Hil. 17 Car. rot 904. RAwson brought an Action of Debt against Bargue for 15 l. upon the Statute of 2 Ed. 6. for setting forth of Tithes Argument upon a special Verdict for Tithes in an action of Debt upon the Statute of 2 Ed. 6. And upon the Tryal a special verdict was found wherein the Question was whether the Church by reason whereof the Tithes were claimed were a free Chappel and given to Ed. the 6th by the Statute of 1 Ed. 6. and so discharged of Tithes or not VValker of Councel with the Plaintiff argued that it was not a free Chappel because there was a cure of Souls and so could not be free but presentative and said that the word free was a word of distinction to distinguish things of different nature one from another as liber homo is to distinguish a free maa from a villein Francksold Francktenement and the like and cited Bracton lib. 4. C. 3. 241. He likewise distinguished Chappels into three sorts 1. Donative 2ly Presentative 3ly Without cure of Souls and said that Chappels presentative were not given to the King by the Statute of â— Ed. 6. and cited Nat. brev 48. and 13 E. 4. f. â— and 6 H. 7. c. 14. and 5 H. 7. f. 37. and said that it is not within the meaning of the Statute of 1 Ed. 6. to give Chappels presentative because it is not within the mischief which the Statute was made to prevent and so intends not to give Chappels with cure of Souls and the word free is but nominal and doth not make it free if it be not so otherwise Hales for the Defendant argued that it was a free Chappell within the Statute of 1 Ed. 6. For first it is called
E. s Brook Covenant 4. was cited Next the Plea doth not say that the Armed men with Prince Rupert were Aliens or Enemies of the King Allen. Enemy but only that Prince Rupert was so But to this exception Roll Iustice answered that they shall be so intended if they be his Army with which he invaded the Land Plea Another exception was taken that the Plea gives no answer at all for one Quarters rent demanded which incurred after the time that he was kept out by Prince Rupert The Councel for the Defendant in defence of the Plea urged that it was not necessary to aver that the Army with Prince Rupert were Aliens and cited 3 H. 6. 61. and the Councel took a difference between an Enemy and a Rebel Rebel and though in the case of a Rebellion this might not be a good Plea yet in case of an Invasion he conceived it was Remedy because he could have no remedy against the party and resembled this case to cases of like nature cited out of 9 E. 3. 7. 40 E. 3 6. 33 H. 6. 1. VVaste and said that where waste is done in the Lands let for years by one again whom the Lessee can have no remedy over there the Lessée for years is not chargeable for the waste except he be bound by a particular Covenant to keep the Lands let without waste Also by the Law of Reason it seems the Defendant in our case ought not to be charged with the rent because he could not enjoy that that was let to him and it was no fault of his own that he could not Civil law Canon Moral Innundation and the Civil-law and Canon-law and Moral Authors do confirm this and Dyer 56. 11. Ass 13. were cited and it was said there is no difference between an innundation and this invasion and had the Lands been surrounded by water the Lessee should not have been chargeable for the rent during that time neither as I conceive shall he be here Next consider the nature of the reservation 10. Rep. 1 28. Rent Payment A rent is not to be paid untill it may be intended that the Lessee might have received the profit of the thing for which the rent is to be paid 27 E. 3.81 8 H. 4.6 Fitzh Execution 146.9 E. 3.16 neither by the Martial law is the Defendant chargeable Martial Law Law of Nature Covenant and that Law is the Law of Nature as well as of Nations But Roll Iustice answered that the Plea was not good for he hath not pleaded that the Army were Aliens and unknown as he ought to have done and the pleading that it was hostilis exercitus makes not the Plea more certain than before and if the Tenant for years covenant to pay rent though the Lands let him be surrounded with water yet he is chargeable with the rent much more here Therefore let the Plaintiff take his Iudgement Fremling and Clutherbook Mich. 23 Car. Banc. Reg. FRemling and his Wise Arest of Judgment in Trover and Conversion Executrix of A. B. bring an Action of Trover and Conversion against Clutherbook for Goods of the Testators found and converted by the Defendant and obtained a verdict against him The Defendant moved in arrest of Iudgement and took these Exceptions 1. That the Declaration was of a joynt possession of Goods of the Husband and Wife and dammages are given to the Husband and Wife whereas the Goods properly belong to the Wife only as an Executrix and not to the Husband and Wife Possession 2ly It doth not set forth how the Feme came to the possession of the Goods But to this Roll Iustice answered that the possession of the Wife Dammages as Executrix was also the possession of her Husband and that the dammages recovered shall be to the estate of the Testatour and so may concern them both And for the second exception this being a possessary Action only it is not necessary to shew how the possession of the Goods was gained Stayed till the other should move Parmiter and Cressy Mich. 23 Car. Banc. Reg. PArmiter brings an Action upon the case upon an Assumpsit and declares Arest of Iudgment in an Indebitatus Astumpsit that the Defendant in consideration that the Plaintiff had sold and delivered unto him such a number of pieces of Stuffs the Defenant did assume and promise to the Plaintiff to deliver unto him the value of the Stuffs in such Pipes of Wine lying in Bradgates Cellar in London as the Plaintiff should make choise of and for not performing the same brings this Action The Plaintiff obtains a verdict The Defendant moves in arrest of Iudgement and shews these causes 1. That the Plaintiff doth not aver in his Declaration that he made any election of the Pipes of Wine Averment and before such election the Defendant was not bound to deliver them nay it was impossible for him to perform the agreement before the election 2ly Election The Plaintiff doth not set forth that he made his election where the Wine was which he ought to have done because of the insupportableness of the commodity to be brought to him to make his choice The Court held that here ought to be a special request made to deliver the Wines Request special because it is upon a Contract and an Action of Debt lies not for them and thereupon arrested the Iudgement till the Plaintiff should move The same Term Iudgement was given against the Plaintiff Quod nil capiat per billam Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of the Case against the Defendant Arest of Iudgment in an action upon the Case forwords Words Tryal False Doctria for speaking these words against him being a Minister He is an Adulterer Whoremaster Drunkard a common Swearer and a Preacher of false Doctrine The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actionable because the matter expressed by them is merely Ecclesiastical and not tryable at the Common law and it was said that a man may preach false Doctrine and not be punished for it if he be not a beneficed man and it doth not appear here Heresie that the Plaintiff had any living and besides it is not said he was a Preacher of heretical Doctrine but of false Doctrine which words are more ambiguous The judgement was stayed till the Plaintiff should move Mack and Cubitt Mich. 23 Car. Banc. Reg. Pasc 23 Car. rot Q. MAck brought an Action upon the case against Cubitt for speaking these words of him Arest of Iudgment in an action upon the Case for words You are a branded Rogue and have held up your hand at the Bar VVords and deserve to be hanged and shall be hanged The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement that the words were not actionable for they are all but words
supposed to be done in fee and so seised did demise the same for years by deed to the Plaintiff reserving rent in which deed was a clause of reentry for non payment of the rent and afterwards made his last Will in writing and dyed by which will be gave the said land in qua c. to the Defendant and that after the rent was behind and that he for the non payment of the rent according to the Covenant in the deed by virtue of the clause of reentry did enter intot he lands which is the same breaking of the Fence and entry for which the Plaintiff brings his Action and demands Iudgement if the Plaintiff ought to have his Action To this Plea the Plaintiff demurs and shews for cause That it doth not shew that the lease made to the Plaintiff is a lease of the land in which the Trespasse is supposed to be done 2ly Licence The Defendant doth not shew that he did â—nter into the land by leave of the Executor which he ought to have done for though the land was devised to him by will yet he cannot enter into the land without leave of the Executor The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea. and Long. Mich. 23 Car. Banc. Reg. THe Plaintiff brought an Action upon the Case for these words spoken of him Arest of Iudgment in an action for words Long is a murtherer and hath bewitched my Child and was the death of my Child and obteins a verdict The Defendant moves in arrest of Iudgement and takes these exceptions to the Declaration 1. That it is not said that the Child was bewitched to death 2ly It doth not express whether the Child bewitched was born alive or not To this the Court said Felony that the bewitching of the Child is Felony though it do not dye by it And to the second exception That the Court doth not take notice of a Child if it be dead-born and they will intend it was born alive and Roll Iustice said that these words Thou didst kill my Masters Cook Averment have been adjudged actionable although the Plaintiff did not aver that his Master had a Cook Therefore let the Plaintiff take his Iudgement if better matter be not shewn Saturday next Carver against Pierce 23 Car. Banc. Reg. CArver brings an Action upon the Case against Pierce for speaking these words of him Arrest of Iudgement in an action for VVords Thou art a Thief for thou hast stollen my Dung and hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actioanble for it is not certain whether the Dung be a Chattel or part of the Free-hold and if so it cannot be Theft to take it but a Tresspass and then the Action will not lye Chattel Bacon Iustice Dung is a Chattel and may be stollen But Roll Iustice answered Dung may be a Chattel and it may not be a Chattel for a heap of Dung is a Chattel but if it be spread upon the Land it is not and said the word Thief here is actionable alone Felony and there are no subsequent words to mitigate the former words for the stealing of Dung is Felony if it be a Chattel Bacon Iustice said It doth not appear in this Case of what value the Dung was and how shall it then be known whether it be Felony or pety Larceny To this Roll answered the words are scandalous notwithstanding and actionable though the stealing of the Dung be not Felony The rule was to move it again Tuesday next Mich. 23. Car. Banc. Reg. A Writ of Error was brought in this Court to reverse a Iudgement given in the Marshals Court Error to reverse a Iudgment for discontinuance in the Process Discontinuance and the exception taken was that there was a dicontinuance in the process and so there ought to have been no Iudgement and therefore the Iudgement given is erroneous and that there was a Discontinuance it thus appears The Continuance was ad proximam Curiam and it appears upon the retorn of the Venire facias that that was no Court day for it was the three and twentyeth day of the Month whereas Friday on which day the Court was held was not the 23 day and so there is Error in the continuance Roll Iustice said the former Continuance was to the 9th day and from thence to the 15th and that is but six daies and so wants of the time Iudgement Bacon Iustice Where there is a Discontinuance the Court hath no power to give Iudgement and so the Iudgement is here erroneous and therefore let it be reversed nisi causa c. Mich. 23 Car. Banc. Reg. LEssee for years of Lands by Deed Demurrer to a Plea in an action of Covenant brings an Action of Covenant against the Lessor and declares that the Lessor had covenanted that he should peaceably and quietly enjoy the Lands let during the Term and that a Stranger entred upon him and ousted him within the Term. To this Declaration the Defedant demurs Roll Iustice said that the Covenant in this Case is broken though it be a Stranger that entered and ousted the Lessee Walker of Councel with the Defendant took this difference where a Stranger enters upon the Lessee and doth a Trespass and where he enters and outs the Lessee in the former Case he said Covenant the Covenant is not broken but in latter it is broken Iudgement was given for the Plaintiff except cause should be shewn Monday next Thynn against Thynn Mich. 23 Car. Banc. Reg. Hill 23 Car. rot 1658. THynn brought an Action of Dower against Thynn Error to reverse a Iudgement in Dower Return Proclamation and hath a Iudgement by default and thereupon a Writ of Enquiry issued out to the Sheriff who delivered seisin of the Dower recovered and returned the Writ upon this Iudgement The Defendant brings a Writ of Error and assigns these Errors in the Record 1. The original Writ appears not to be returned according to the Statute for the year doth not appear when it was returned 2ly The Proclamation made by the Sheriff appears not to be where the Land lyes 3ly Summons The return doth not mention that the Proclamation was after the Summons as it ought to be as it is Hob. Reports in Allens Case 4ly It is not said that he did make Proclamation upon the Land 5ly It appears not that the Proclamation was in the Parish where the Summons was as the Statute directs To these exceptions Hales of Councel on the other side answered To the first Return that the retorn of the original Writ shall be intended to be in the year of the Reign and not of the Age of the King though the word Reign be omitted To the second the Lands lye in divers Parishes and Proclamation at the Church of any of the Parishes is good
Executors in such cases 14 H. 4. fol. 29. Fitzh Tit. responder 7 E. 6. Dyer 81.10 rep 128. And said the verdict hath found it in the debet and detinet which shall be intended to be true 9 Ed. 4.41.17 Jac. Paul and Mordyes Case in the Common pleas and 7 Iac. Smith and Nicholas Case and prayes Iudgement for the Plaintiff Hales for the Defendant argued that the Declaration is not good 1. He said the Action is good in the detinet because the profits of the land let which are over and above the rent to be paid for it reserved upon the lease shall be only assets in the Executors hands Difference Contract 2. It cannot be good both wayes and the Term is in him as Executor not the rent and there is a difference between contracts Executory and contracts Executed but it may he said the rent to be paid may be more than the profits of the land is worth â— answer this shall not be presumed in law if it be not so shewed 43 Ass pl. 23.16 H 7. fol. â— The Action is brought for all the rent incurred therefore it shall not be presumed that the land is not worth the rent that is paid for it Verdict and as for the verdict it shall help nothing for a verdict shall not supply a necessary part of a Declaration omitted and if he owes then he detains and I conceive Hargraves Case to be good Law though denyed by the Councell on the other side and here the privity of the contract is not determined and so prayes Iudgement for the Defendant Roll Iustice It is for the advantage of the Executor to bring the Action in the detinet for then he sh ll be charged only for the goods of the Testator and not for his proper goods and it may be the land is lesse worth than the rent and that the partyes have consented the Action should be brought in this maner Bacon Iustice cited Pawls Case Mich. 17 Iac. But entred Pasc rot 346. That the Action may be brought in the debet and detinet and if the Plaintiff will bring his Action here in the detinet it is not for your disadvantage and he may at his election bring it either way Roll Iustice Here the verdict answers the point of the issue and therefore is good The Court ruled the Plaintif to take his Iudgement except better cause shewn to the contrary William against Tyrer Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 224. VVIlliam brought an Action of Trover and Conversion against Tyrer for certain goods of the Plaintiff the Plaintiff hath a verdict Arrest of Iudgement in Covenant The Defendant moved in arrest of Iudgement and took these exceptions to the Declaration 1. The Plaintiff declares pro tribus duodenis fili Anglice dosens of thread Declaration which is incertain for it may be three dosen pound of thread or skenes of thread or ounces of thread To this it was answered that it cannot be otherwise expressed and the words dosens of thread is used amongst Merchants and well known unto them what is meant by them 2ly He declares for so many pounds Muscat in stead of Nucum Muscat ram Anglice Nutmegs But this exception was mistaken for the record was otherwise and besides it was with an Anglice which makes it certain The Court ruled Iudgement to be entred except cause shewed for the Plaintif Rawson against Bargue Hill 23 Car. Banc. Reg. THe Case between Rawson and Bargue being an Action of Debt upon the Statute of 2 E. 6. for not setting forth of Tithes â— Arguments whether a free Chapel or no and the Iudges opinions wherein upon a speciall verdict the question was whether the Church were a free Chapel given to the King within the Statute of 1 Ed. 6. was again argued by Latch for the Plaintiff and by Brown for the Defendant Latches argument was to this effect 1. He said that the Law sayes it is presentative although it be not and 2ly It is sufficiently found to be a parochial Church yet it is not material whether it be found so or no. Next the words of the Statute do not extend to give donatives to the King 3ly It is not given to the Crown and although the Declatation and verdict be that it is a free Chapell yet it is not comprehended as a Chapel presentative Lit. 94. The word free makes a distinction of things and the party ought not to confound things Free Chapel and a free Chapel is alwayes interpreted for a Church donative and not presentative The right investiture of Churches was challenged from the foundation of them untill within this 400 years it was altered by the Common law Seldens History of Tithes fol. 392. and upon that alteration the name of a free Chapel came Reg. 41. It is said to be free from ecclesiasticall jurisdiction Fitz. tit Brief 6.0.3 Ed. 3. Fitz. Tit. Ayde du roy 33.14 H. 4.11.22 H. 6.25.22 H. 6.27 by Danbye 26 H. 6. Fitz. grants 12. Nat. brev 33 E. 34. f. 27 E. 3.84 Cowels interpretor Tit. free Chapel And in all Statutes the word free Chapel is meant of donatives Stat. 26 H. 8. cap. 3. Stat. 37 H. 8. cap. 4. Stat. 1 Ed. 6. cap. 14. Regist 307. But it is objected that free Chapels extend to presentatives Presentation Donative because they are with cure Lit. Com. 344. a donative may be parochial 7 E. 3. f. 4. To this I answer Churches had cure of souls when they were donatives To the 2d point by the meaning of the Statute it appears Tenure Frank-almoigne that only donatives were intended as the preamble of it doth declare And all Chapels are held in Frank almoigne as well as donatives and so all may be given to the King by the same reason Another objection is that the word Capella is superstitious and therefore being of a superstitious foundation it is given to the King and Cowels Interpretor is urged to prove the word to be so derived To this I answer that Sir Henry Spelman as learned an Author as Cowell in his glossary rejects Cowells derivation of the word Capella and saith that Capella is used promiscuously for any upper covering And though the name were superstitious yet that makes not the Chapel to be so for so the Church of St. Andrew or St. Dunstan should be superstitious and given to the King by the Statute There is a double preamble of the Statute 1. A recitall of another Statute Preamble and the taking away of other superstitious uses Preamble of the Statute 37 H. 8.22 Ed 4. cap. 7.8 rep 137. beasts of the Forest are not Cattel 3. rep The marques of Winchesters Case Com. 204. That some generals may be taken in a restrained sence 9 H. 6.36 Interpretation Words of a Statute ought not to be interpreted to destroy naturall Iustice The stile also of the Act doth not shew that donatives are only intended
might have pleaded this in the Admiral Court Hill of Councel for the Prohibition said it is not material what the parties have done in the Common-pleas for this Court is not bound by it Roll Iustice If the matter of your surmise here be tryed already in the Common-pleas why should you move here upon the same surmise Surmise Arbitrary Conclusion But it is not arbitrary to grant a Prohibition or not to grant it if there be cause to grant it and the Tryal in the Common-pleas is no conclusion to us and if it be mischievous as is objected Prohibition to grant a Prohibition after a Consultation granted the Parliament may make a Law to prevent that mischief for as the Law now is it may be done Yet we will advise Gaudy aginst Ingham Hill 23 Car. Banc. Reg. IVdgement was given against an Administrator in an Action of Debt brought against him Error upon a Iudgement against an administrator Iudgement in the Common pleas upon fully administred pleaded and a writ of Error was here brought to reverse the Iudgement The Error assigned was that Iudgement was given for the whole Debt whereas the verdict found that the Defendant had assets only to discharge a part of it To this the Court said if it be found he have any assets Iudgement must be given against him for the whole debt upon his false plea but if he have no assets it is otherwise Allen against Reeve Hill 23 Car. Banc. Reg. Mich. 23 Car. rot 88. ALlen brings an Action of Covenant against Reeve Arrest of Iudgement in an Action of Covenant and his wife upon a lease expired made of certain houses by deed unto the wife dum sola suit wherein was a Covenant to keep the houses in repair during the term for breach of this Covenant is the Action brought and declares as to one of the houses that it was burnt by negligence The Defendants plead a special plea to this effect That the house which was burnt was not burnt by negligence In arrest of Iudgement nor with Common fire as the Plaintiff hath declared and as to the rest they plead the general issue that they were in good repair at the expiration of the term the Plaintiff hath a verdict Nicholes of Councel with the Plaintiff said it conteins a negative preignans for there are two matters offred in issue one that the house was not burned by common fire Negative preignans Demurrer 2ly That it was not burned by the negligence of the party Roll Iustice If it be a negative preignans as you say it is you ought to have demurred unto it as to a double plea. But let us see the book and stay in the mean time Hobson against Heywood Hill 23 Car. Banc. Reg. Trin. rot 791. HObson brings a writ of Error in this Court to reverse a Iuhgement given against him at Bristow in an Action of Debt for rent Error to reverse a Judgement in Bristow in an action of Debt Error and assigns for errors that the sum demanded to be due for rent was in figures and not in words as it ought to be 2ly It is said that the Iury Assideint damna for Assident damna The Court held they were both material exceptions and reversed the Iudgement except cause should be shewn to the contrary Saturday following Chambers against Floyd Hill 23 Car. Banc. Reg. VPon a rule on the Crown side to shew cause why an Attatchment should not issue out against two Iustices of peace for not allowing a certiorari directed to them out of this Court to remove an endictment of forceible entry taken at a private Sessions before them Cause against issuing of an attatchment The Councel for the Iustices urged that they had not contemned the Processe of this Court as is surmised for the certiorari ought to have been delivered in open Sessions of the peace and there allowed Allowance but this was delivered at a privat Sessions and so they were not to allow it 2ly The party who procures the certiorari ought according to the Statute to put in security Certiorari at the delivery thereof to prosecute or else it is not to be allowed but that was not done here and therefore they were not bound to allow it And the certiorari is to remove an Endictment of forcible entry but the retorn is that it was a peaceable entry and a forcible deteyner Retorn so that there being no such Endictment before them as the certiorari mentions they could not make a retorn according to the writ and therefore it is no contempt in the Iustices not to make a return The Court answered Contempt that it is the usual course of the Court to make certioraries in this form and therefore this is no excuse The Councel against the Iustices urged that this case is within the Statute though it were at a privat Sessions of the peace and therefore the Iustices are in contempt Roll Iustice said I conceive that this is casus omissus not provided for by the Statute and if so then are they not in contempt Casus omissus and if some Iustices take an Endictment of forcible entry other Iustices cannot give restitution upon this Endictment Bacon Iustice Restitution The Statute is a remedial Law and made for the ease of the subject and ought not to be construed strictly And said Construction that a privat Sessions is a Sessions but security ought to be put in at the quarter Sessions for it shall be intended that all the Iustices of the County are there Roll Iustice said Security that a privat Sessions ought to take security and the Endictment ought to be retorned there but the certiorari is not good for it mentions not the title of the Act yet the generall practice of the Court seems to warrant it as it is The Court ordered the party to have restitution and the contempt to be spared by consent of partyes if cause not shewn to the contrary before the end of the Term. Hill 23 Car. Banc. Reg. THe Court was moved upon an Assidavit for a prohibition to the Court at Doncaster For a prohibition to the court at Doncaster Prohibition Attatchment and for an attatchment against the Maior for refusing to allow of a forein plea tendred by the Defendant in an Action of Debt brought against him for rent for lands that lye out of the jurisdiction of the Court and for proceeding against him notwithstanding the tender of the plea. The prohibition and attatchment were granted if cause not shewn to the contrary before the end of the Term. David against Lyster Hill 23 Car. Banc. Reg. THe Court was moved by the Plaintiff that the Defendant might be ordered to plead an issuable plea For the Defendant to plead an issuable plea. which he had not done for the Action is an Action of ejectione firmae in which the Plaintiff hath
because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
really a Copyholder and cited Shellyes case and prayed Iudgement for the Defendant Roll chief Iustice said This Case differs from surrendring into the hands of Tenants for it is into the hands of the Steward out of Court Surrend Admission which is good and the Lords acceptance of his rent is an admission But Bacon doubted and therefore the rule was for the Case to be argued again the next Term and then by reason of sicknesse I was absent But that Term held not by reason of the Kings death Dunch against Smith Mich. 24 Car. Banc. Reg. DUnch brought an Action of Debt as Executor for arrerages of a rent charge due to the Testator against Dunch Arrest of Iudgement in Debt brought by an Executor an occupyer of the land out of which the rent was issuing and hath a verdict The Defendant moved in arrest of Iudgement and for Cause shewed that the Plaintiff doth not shew any title that the Defendant hath in the Land but only sayes generally that he entred into the Lands and so it appears not that he is to pay the rent To this the Councel on the other side answered that the Plaintiff being but an Executor cannot know the title and therefore is not bound to shew it Roll chief Iustice said there can be no Iudgement for the Declaration is too generall But Bacon Iustice held the Declaration good enough Antea Brown against Poyns Mich. 24 Car. Banc. Reg. THe Case was this a man made his last Will and made two Executors For a prohibition to repeal an administration Prohibition Appeal the Executors dye in the life of the Testator the Testator dyes having two Sisters the eldest Sister procures Administration the younger Sister moves for a Prohibition to repeal the Administration because she being in equal degree of king ought to have equall share of the Administration But the Court answered that a prohibition lies not for you may appeal if the Administration be not rightly granted Mich. 24 Car. Banc. Reg. A Processe issued out of this Court for a Cart and Horses that were cause of a mans death as a deodand 12. Iac. To stay processe for a deodand and it was moved that there hath been a generall pardon by Parliament since that time by which deodands were pardoned and therefore it was prayed the processe might be stayed General pardon The Court asked whether there be not an exception of deodands or the Almoners interest in the pardon The Councell answered there is not The Court demanded by what words in the pardon are deodands pardoned The Councel answered by the generall words The Court ordered thereupon it should be stayed till the Almoner be heard what he can say Mich. 24 Car. Banc. Reg. THe Court was moved for a habeas Corpus for one that was taken in Execution by the Sheriff and was afterwards set at liberty For a habeas corpus for one taken upon one Execution Audita querela and after that retaken upon the same Execution The Court answered take it but you are in the wrong way for you ought to bring your audita querela The King against Bray Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry made upon a Lessee for years upon the Statute of 21 Iac. To quash an Endictment of forcible entry The exceptions taken to it were 1. It doth not appear by the Endictment that the Lessee had any title to the Land at the time of the force committed for the force is supposed to be done before the lease commenced 2ly The lease is supposed to be a lease for so many years if I. S. shall so long live and it is not averred that I. S. was alive at the time of the forcible entry made Averment Roll chief Iustice cited the Lady Morlyes case that there ought to be a direct allegation of the life Therefore let it be quashed Mich. 24. Car. Banc. Reg. THe Court was moved to quash an Endictment of Assault and Battery of an overseer of the poor villae de A. in executing of his office The exceptions taken to it were To quash an Endictment for assaulting a Collector for the poor 1. That there is no such officer as an overseer of the poor villae but it ought to be parochiae but the Court said it was well enough as it was though it had been more proper the other way 2ly The Endictment is for the Assaulting and beating a Collector for the poor in executing his office whereas there is no such office appointed for any one particular man by the Law for the Statute is that there shall be two Collectors for the poor in every Parish and so the office is joynt and not several But the Court over-ruled this exception also 3ly It wants vi et Armis Vpon this exception the Court bid the Councel move it again Gill against Crosse Mich. 24 Car. Banc. Reg. THe Plaintiff brought an Action of Debt against two as Administrators upon fully administred pleaded issue was ioyned Speciall verdict in Debt against Executors and a speciall verdict was found to this effect viz. that one of the Administrators had fully administred and that the other Administrator had assets It was urged against the Verdict that the issue that was found is impertinent and impossible Verdict Iudgement and so there can be no judgement given upon it But the Court answered that the verdict is good yet if Iudgement should be given upon it the Iudgement would be ill and Nevills and Greenwoods case Hill 7. Car. in the Exchequer rot 1189. was cited and it was said that Iudgement may be against that Executor who hath assets and nil capiat per billam against the other that hath fully administred But take Iudgement at your peril Preston against Holmes Mich. 24 Car. Banc. Reg. Trin. or Mich. 24 Car. rot 2052. VPon a special verdict found the Case in effect was this Arguments upon a special verdict upon a Will one in see having one Son by one venter and another Son by a second venter did by his last Will devise all his Lands to his wise for life and after her death to I. his eldest Son and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law and so the devise to be of no effect to make him come to the Lands by purchase Christopher Turner held that the devise is void because it sayes no more than the Law says for if there had been no such devise Iohn his Heirs should have had the Land and he cited Paramour and Yardlves Case in the Comentaries and Hob. rep Counden and Clarks case But it is objected that in this case the Law speaks one thing and the devise another thing and so the devise says not the same thing To this I answer there is no difference concerning the alteration of the Estate
was committed 3ly It is said intulit and expulsit in the singular number Endictment whereas it should be intulerunt and expulserunt in the Plural number because the Endictment is against divers and so it is false Latin 4ly False Latin The Endictment uses the word lignum for the tymber of the house whereas it should be maremium Twisden on the other side answered that the Endictment was good at least to the Assault and Battery though it fail in the other particulars The Court ordered the Defendants to plead to it and would not quash it Mich. 1649. Banc. Sup. THe Court upon the retorn of a Sheriff of a rescous made To quash a Rescous and read was moved to quash it for these exceptions taken to it 1. It is said feci warrantum meum Thomae Tayler and doth not say that Thomas Tayler was his Bayliff 2ly He doth not say for what cause he made his Warrant Warrant and so it appears not whether it was lawfull or not Vpon these exceptions it was quashed Mich. 1649. Banc. sup Vaux and Vaux against Steward VPon a verdict found for two Plaintiffs in an Action upon the Case upon an assumpsit Arrest of Judgement in an action upon an Assumpsit Ioyn in action The Defendant moved in Arrest of Iudgement and for cause shews that the Plaintiffs ought not to have joyned in the Action but ought to have brought several Actions The Case was this the several Cattel of the two Plaintifs were distreyned The Defendant upon consideration of ten pounds paid unto him by the Plaintifs did assume and promise unto them to procure the Cattel to be re-delivered unto them and because they were not re-delivered acordingly they brought their Action joyntly Promise entire Roll chief Iustice said the promise here is entire for the consideration is entire and so the Action may be joyntly brought Yet let Iudgement stay till the other move Postea Mich. 1649. Banc. sup IN a Tryal between Cave and Osby Observations upon a Tryal Presentation Licence Grendons case 11 Rep. Impropriation Vicarage for not setting forth of Tithes according to the Statute of 2 Ed. 6. These things were delivered by the Court. 1. That the King may present to a living by a Letter but it is a question whether he can do it by paroll 2ly There ought to be the Kings licence to make an appropriation of a Church and to endow a Vicar 3ly The King cannot make such a licence without matter of Record and it ought to be with a Condition to endow a Vicar and the endowment of the Vicar may be by a distinct instrument from the appropriation so that it be made at the same time when the appropriation was Mich. 1649. Banc. sup IN the Case of one Wright Robbery of the servant may be robbebery of the Master Robbery brought upon the Statute of Hue and Cry Roll chief Iustice said that if a mans Servant be robbed of his Masters Goods in the sight of his Master this shall be taken for a robbing of the Master And if one cast away his Goods to save them from a Robber and the Robber take them up and carry them away this is a robbery done to his person Coles against Sibsye Mich. 1649. Banc. sup Trin. 1649. rot 148. COles brought an Action of Trover and Conversion against Sibsye The Defendant pleaded the Statute of Limitation of actions in bar of the Action A Latitat in nature of an original The Plaintif replies that he took out a Latitat out of this Court against the Defendant within the time limited by the Statute which yet continues depending Roll chief Iustice said a Latitat out of this Court is in the nature of an original in the Common pleas and so hath been alwaies held to be Original Adjourned Mich. 1649. Banc. sup THe Court was moved to quash divers Endictments against the Inhabitants of the Parishes of Shoreditch and Hackney in Middlesex To quash Endictments of Parishes for not repairing the high way for not repairing the High ways The exception taken was that the Parishes are joyntly endicted whereas their offences are several and also not equal and yet both fined alike The Court quashed the Endictment and discharged the issues which were not returned but not those that were retorned Gardner against Jollye Mich. 1649. Banc. sup Pasc 1649. rot 189. IOllye brought an Action upon the Case against Gardner for causing him to be endicted of Felony as accessary Error to reverse a judgement in an action on the Case for suffering a Prisoner to escape that was convicted of Felony The Plaintif had a verdict and a judgement The Defendant brought a Writ of Error to reverse this judgement and the error assigned was that the party was endicted for a matter which is but a Trespass and not a Felony and so the Declaration is mistaken and an Action upon the Case lyes not Case But the Court answered that the charge of the Endictment is for Felony although the matter the party is charged with be not Felony and a scandal lay upon him by it and therefore the Action lies Vaux and Vaux against Steward Mich. 1649. Banc. sup THe Case between Vaux and Vaux and Steward Arrest of judgement in an action upon an Assumpsit was again moved in arrest of Iudgement The objection made was that the promise made amounted to a double promise and therefore the parties to whom the promise was made ought to have brought several Actions and not to have joyned in the Action as they have done But to this it was answered by the Councel on the Plaintifs part that the promise is entire and is not double for the consideration of the promise is entire viz. the ten pound which moved from them joyntly and not severally Roll chief Justice held Ioynt promise that it is an entire promise and a joynt consideration though the Cattel taken were several and therefore the Action may be joynt and if one lay out mony for a thing assumed to be done for a third person if it be not done an Action shall be brought upon the Assumpsit by him who layd out the mony Rippon and â—ortons case f. 1. but because a Case was cited out of Yelvertons Reports to be against the opinion of the Court therefore the Court ordered the Councel to bring that Case and in the mean time they would advise Antea Mich. 1649. Banc. super Christopher against How CHristopher brought an Action on the Case upon an Assumpsit against How an Executor Arrest of Iudgement in an Action upon the Case and declared upon a promise made by the Testator to the Plaintif to deliver certain goods in the possession of the Testator unto the Plaintif upon request and because the Testator had not delivered them accordingly the Plaintif brings his action The Plaintif had a verdict The Defendant moved in arrest of Iudgement and
and damages are assessed and said It is true that the judgement is right entred but there is no Verdict to warrant the Iudgement and therefore it cannot be good and therefore let it be reversed if cause be not shewn to the contrary But we will not pronounce it now except the party desire it for his own expedition Ayre against Pyncomb Mich. 1649. Banc. sup AYre brought an Action upon the Case against Pymcomb for surcharging of a Common and for treading the Grass Arrest of Iudgement in an Action upon the case for surcharging a Common Assize Trespass upon the case The Plaintif had a Verdict The Defendant moved in Arrest of Iudgement That an Action of the Case doth not lie in this case but an Assize 2ly That an Action of Trespass doth not lie for a Commoner for treading of the Grass 3ly The Trespass is alleged to be done in quibusdam peciis pasturae and the quantity of them is not shewed To the first Exception Roll chief Iustice answered That the Plaintif may have an Assize or an Action upon the Case at his election although here be a disturbance of the Plaintifs freehold although that the antient books say the contrary And thereupon the Court gave Iudgement for the Plaintif except cause shewn to the contrary Brook against Hogg Mich. 1649. Banc. sup Hill 24 Car. rot 660. A Iudgement given in an Action of Debt upon an account in the Court of Knaresborough was reversed here Iudgement in an accompt reversed for Error in it because the Venire facias was Venire facias c. which in an Inferiour Court is not good Venire but it ought to say Venire facias duodecem probos et legales homines de c. so express all at large in words and not with an c. Note Many Iudgements given in Inferiour Courts have been here reversed upon the same exception But I only mention this for an authority to be cited upon occasion Ibson against Beale Mich. 1649. Banc. sup Hill 24 Car. rot 625. IBson brought a Writ of Error to reverse a Iudgement given against him for Beale in the Court at York in an Action of Debt upon an Obligation Error to reverse a Iudgement in debt and assigned for Errors 1. That the party hath not entituled himself to the Action 2ly The issue is not well joyned for the Plaintif saith ideo ponit se super patriam where he ought to say Issue petit quod inquiratur per patriam 3ly He concludes to his damage of l. 1. i. fifty pounds expressed in numerical Letters viz. l. for fifty and L. for pounds Damage instead of quinquaginti librarum The Iudgement was reversed upon the last Exception Stubs and Manklyn Mich. 1649. Banc. sup A Writ of Error was brought to reverse a Iudgement given in the Court at Owse-bridge in York Error to reverse a Iudgement in debt in an Action of Debt upon an Obligation and the Common Error only assigned But Roll chief Iustice upon Oyer of the Record took this exception That the Record was ideo praeceptum est Vicecomiti and it is not said in Curia and so it doth not appear to be the Process of the Court And for this Error the Iudgement was reversed Venire Topladye against Stalye Mich. 2649 Banc. sup Mich. 24 Car. rot 596. TOpladye brought an Action of Trespass quare clausum fregit pedibus ambulando c. against Stalye Demtirrer and argument upon a plea in Trespass The Defendant makes a special justification That he did enter into the Plaintifs Close to search for Shéep that were stollen from him To this Plea the Plaintif demurr'd and for cause shews that the justification is not good for it is not said by the Defendant that the Plaintif had stollen the Shéep or that he had any suspition that he had stollen them or that any other had stollen them driven them upon the Plaintifs land and so had no colour to come there to search for them and the Books of 17 E. 4. f. 1. and 27 H. 8.23 6 E. 4.7 21 H. 7. f. 10. 22 H. 6. f. 36. 38 E. 3. f. 10. were cited Iustification Another exception was also taken That the Defendant doth not say that the Gate of the Close where he entred was open and though he may justifie to search for his Shéep in the Close yet he cannot justifie the breaking of his Close to doe it But Roll chief Iustice over-ruled this exception And for the matter in Law whether the Defendant had made a good justification or no. He held that he had not for all that he hath alleged by way of Iustification is but matter of private profit to himself Distress Damage feasant and not for the publique good for he went not thither to find or apprehend the Felon but to look for his Shéep And if Cattel be stollen and put into my ground I may take them damage feasant or bring an Action of Trespass against the owner and the owner cannot take them away without the license of the possessor of the ground Licence for if he might by that means the possessor of the ground would be without remedy for the damage the Cattel had done him And he said That when one hath suspition of another for felony he ought to shew the cause of his suspition Arrest otherwise the party suspected ought not to be arrested upon it and concluded that the Plaintif ought to have Iudgement Ierman Justice held that the Defendant ought to have Iudgement because a private injury as this Trespass is ought to give way to the publique good viz. the discovery of Felony and here is a publique good intended and it ought to take place of the Plaintifs inconsiderable injury And he said that one may be arrested for Felony only upon Common fame if there be a felony committed Otherwise it is if there be no Felony done Ask Justice said the Case was hard on both sides But the Court gave Iudgement for the Plaintif except cause should be shewn to the contrary Mich. 1649. Banc. sup VVIld moved the Court that the retorn of a Habeas Corpus granted for certain rioters called the Diggers that were committed by Iustices of Peace upon finding the Riot upon their view might be filed To quash a Retorn of a Rescous which was granted upon which he moved that the prisoners might be discharged but the Court commanded the retorn to be read upon the reading of it Wild took this exception viz. That the prisoners were committed contrary to the Statute of H. 4. c. 7. for by that Statute the Sherif ought to be present at the finding of the Riot which was not so here Walker held that the Iustices had power by the Statute without the Sherif to enquire of the Riot and to commit the Rioters But Roll chief Iustice said that there is no enquiry made in this
are only put in agrravation of dammages 7 H. 6. f. 34. and so prayes judgement for the Plaintiff Green of Councell with the Defendant prayed the Writ might be abated Because 1. here is not any thing laid that the Defendant hath positively affirmed the Plaintiff to be a Bankrupt 2ly There are general words in the former Action namely alia enormia which words do comprehend the matter for which this Action is now brought and he denyed the differences taken by the Councell on the other side And it doth here appear to the Court that the former Action of Trespasse was brought for the same things and damages were therein given for them and it is unreasonable to punish one twice for one and the same offence and the averment is good and doth shew that both Actions are for one and the same cause and he hath recovered damages already for all the wrong he sustained and here is no conversion alleged in the Case nor is it vi et armis and the Law hates double vexation 2. H. 6. f. 54. Brook brev 397 3 H. 7. 4. Brook brev 77. and damages might well enough be recovered in the first Action for all the damages sustained 19 H. 6. f. 44. And if this Action now brought had been brought for calling the Plaintiff Bankrupt the Action would have lien but not as it is here brought and one entire Action shall never be divided to put the party to a double vexation as it is in our case 41 Ass pl. 16. Brook brev 309. â— rep Hudsons case and in the first Action the words alia enormia were purposely put in that all matters touching that Trespass might be brought in question to encrease the damages 9 E 4. Brook Tresp f. 1â—9 and so all the damages were recovered in the former Action And he agreed Laicons case put by Shafto that the Plaintiff might recover damages as well for the value of the Sheep as for the chasing of them and prayes the Writ may be abated Roll chief Iustice said it is hard to maintain Laicons case for cepit er abduxit intends that the owner hath not the Sheep again otherwise it would be if the Action had been for the driving of them only And Mr. Shafto hath taken a good ground viz. that the Actions are for severall things and the Declaration is in part but an inducement to increase the scandall and to prove it and the words alia enormia shall not be intended of collateral matter but of matter incident to the Act done And one and the same thing may give several causes of Action and one Action is not to be confounded with another Action Ierman Iustice said Laicons Case was not like this Case for the question here is whether the Plaintiff can recover damages in this second Action which he hath by intendment recovered in the former Action and he inclined that it may be so here and that there is a recovering of the same damages in divers manners for the same thing Nicholas Iustice said he may bring severall Actions although he might have joyned them both in one Ask Iustice said That one Act may be divided into divers Actions and so it is here and well enough Roll chief Iustice said the Plaintiff in this Action cannot recover damages for his Goods so that this Action is brought for another matter Therefore plead in chief if cause be not shewed to the contrary for the Action doth well lye Meers against French Hll. 1649. Banc. Reg. IN an ejectione firmae Arrest of judgement in an ejectione fiâ—â—ae and a verdict for the Plaintiff The Defendant moved in arrest of Iudgement that there is no certainty in the Declaration neither of the place nor of the quantity nor of the quality of the Land whence the Plaintiff was ejected for it is eâ—dnobus Acris fundi Anglice a hopground which is not warranted by the Latin and so it is incertain and it is also dimisit unum croftum and a peice of Land and the quantity is not expressed for it is per estimationem sive plus sive minus medietatem sive unam partem is also incertain Twisden answered it was certain enough because it is expressed by a certain name Declaration Grant But Roll chief Iustice said it is good in grants but not in a Declaration for there is required more certainty and the Anglice here doth not help it for the Anglice is not to interpret a Latin name by which it is called And the sive plus sive minus is also ill but if it had been so many Acres per estimationem it had been good Therefore advise better of it Antea Vaux and Vaux against Draper Hill 1649. Banc. sup Entred Trin. 1649. rot 1104. VAux and Vaux brought an Action upon the Case against Draper Arrest of Iudgement in an action upon the case upon a promise upon a promise and declared that the Defendant in consideration of ten pounds paid by the Plaintifs unto the Defendant did assume and promise unto the Plaintifs to procure certain Cattel of the Plaintifs taken from them by a third person to be redelivered unto them by such a time and for not performing this promise they brought their action Vpon Non assumpsit pleaded there was an issue joyned and a verdict found for the Plaintifs after this case had béen twice spoken unto The Defendant moved in arrest of Iudgment that thâ—â— Action was not well brought joyntly by the Plaintifs but that they ought to have brought two several Actions Joynt action in regard that the promise upon which the Action was founded was not an entire promise but was a several promise made to each of the Plaintifs The Councel on the other side prayed for Iudgement and said the promise was intire made to both and not several and so the Iury have found it which shall be intended to be true and if it should not be so it would be disadvantagious for the Defendant Hales said on the other side that the assumpsit is several and the acts to be done by the Defendant to the Plaintifs are several although the assumpsit sounds as a joynt assumpsit Roll chief Iustice said That the Consideration given is entire and cannot be divided and there is no inconvenience in joyning in the Action in this case but if one had brought the Action alone it might have been questionable Nicholas and Ask Iustices of the same opinion But Jerman Iustice differed and said that they are several promises viz. to deliver such Cattel severally to each of them as did belong properly to them and so there must be two several Actions But Iudgement was given for the Plaintif except better matter shewed Antea Spry against Mill. Hill 1649. Banc. sup Pasch 1649. rot 208. IN a Writ of Error brought to reverse a Iudgement given in a Trover and Conversion at Launceston in Cornwal upon a nihil dicit Error to reverse a
writ of Error upon an exception taken to it as it was entred in the Record but because it was but a mis-entry the writ it self being right Amendment the Record was ordered to be amended by the Writ Roberrs and Tucker Trin. 1650 Banc. sup Pasch 18. Car. rot 116. THe Court was moved to quash a writ of Error because the writ was to remove a Record coram Majori et Recordatori To quash a Writ of Eror whereas the Record certified was a Record coram Majori et Deputato recordatori Roll chief Iustice the Record is not well removed why may you not have a new Certificate upon the same writ But that cannot be and therefore you must have a special writ directed to remove the Record before the Maior and the Deputy Recorder Alteration for if there be a special cause to alter the usual form of a writ the Cursitors ought not to hold themselves to the old presidents but are compellable to alter them if the case require Abatement Therefore let the writ be abated and take another Writ Vid. anteâ— Shertlife against Tymberlye Trin. 1650. Banc. sup Hill 1649. rot 438. SHertlife brought an Action of Debt against Tymberlye upon an Obligation Demurrer to â— Plea in debt upon an Obligation to save harmless the condition whereof was that the Defendant should save the Plaintif harmless from such a person should release unto him all his right in certain goods The Defendant pleads that he had saved the Plaintif harmless and had released unto him all his right in the goods and to this plea the Plaintif demurred and shews for cause that the Defendant ought to have shewed how he had saved the Plaintif harmless because the condition was in the affirmative To which the Court agreed because he might have pleaded generally in the negative viz. non damnificatus and that had béen good and therefore judgement was given against the Defendant Non damnificatus Hobson against Hudson Trin. 1650. Banc. sup HObson brought an Action upon the Case against Hudson for these words Thou wentest to the Wells to be cured of the Pox Arrest of Judgement in an Action for words The Plaintif had a Verdict against the Defendant who moved in Arrest of Iudgement that the words were not actionable because they were too general and uncertain But Roll chief Iustice and Nicholas and Ask Iustices held they were actionable But Ierman Iustice doubted because the party that went to the Wells to be cured might suspect he had the Pox though he had them not But Iudgement was given for the Plaintiff Elsy agginst Mawdit Trin. 1650. Banc. sup Pasc 1650. rot 409. ELsye brought an Action upon the case against Mawdit for speaking these words of him Arrest of judgement in an action for words Thou Sirrah art a rogue and a run-away rogue and didst run away from Oxford and art a rogue upon Record at Oxford The Plaintiff upon not guilty pleaded had a verdict the Defendant moved in arrest of Iudgement that the words were general and uncertain and not actionable the Court thereupon stayed Iudgement till the Plaintiff should move The Plaintiff at another day moves by Hales of his Councell for Iudgement who said that the words are actionable or at least some of them for thou art a rogue upon Record are actionable words and that is part of the words The Court enclined also that they were actionable yet would advise Postea The same Term Iudgement was given for the Plaintiff Chase and Iones against Lovering Trin. 1650. Banc. sup CHase and Iones brought an Action upon the case against Lovering Arrest of judgement in an action upon the case upon a prâ—mise upon a promise made by the Defendant to the Plaintiffs to pay unto them 84 l. out of the fraight of a Ship and for not paying it the Plaintiffs bring their Action Vpon non assumpsit pleaded there was an issue joyned and a verdict found for the Plaintiffs The Defendant moved in arrest of Iudgement allegeth for cause that the Plaintiffs averment in their Declaration of the non payment of the 84 l. is not good Averment for it doth not appear by the averment that there was any fraight due for the Ship out of which the monies were to be paid Roll chief Iustice answered that the Plaintiff ought to have averred that there were monies due for the fraight of the Ship otherwise how can it be known whether there be any monyes due to be paid out of them therefore the averment is very incertain to whom Ierman Nicholas and Ask Iustices agreed Roll Chief Iustice added that it is part of the promise that the mony shall be paid out of the fraight and as the averment is the matter cannot stand together and here is no demand for the monyes to be paid out of the fraight Therefore against the Plaintiff let there be a nil capiat per billam entred Blackden against Harvye Trin. 1650. Banc. sup Hill 1649. rot 928. BLackden brought an Action upon the Case upon an indebitatus assumpsit to pay unto him 9 l. upon delivery of certain Cloath against Harvy as Executor of I. S. Demurrer upon a plea af er imparlance The Defendant appeared and imparled and after imparlance pleads in abatement of the Writ that I. S. made other Executors together with the Defendant who ought to have been named in the Writ The Plaintiff denturs and for cause shews 1. That the Plaintiff doth not shew what goods the Defendant administred nor at what time he administred any as he ought and 6. lac Edwards and Foyes case was cited to prove it A second cause of the demurrer was that the plea in abatement of the Writ is after imparlance which is not good because it is touching a thing in the Defendants knowlege and so he might have pleaded it before imparlance as it is 35 H. 6. f. 36. Ierman Iustice absente Roll answered that the first exception is not material Abatement but he held that the second was a good exception and that the Defendant cannot plead in abatement after imparlance for by his imparlance he hath admitted the Writ good Therefore'plead in chief if cause be not shewed to the contrary on Friday next VVinter against Barnard Trin. 1650. Banc. up VVInter brought an Action upon the Case against Barnard Arrest of judgement in an action for words and declared that upon the rumor that a Bastard Child was drownded The Defendant said to the Plaintiff I do verily believe the Bastard Child was thine nay it was thine upon not guilty pleaded an issue was joyned and a verdict found for the Plaintiff It was moved in arrest of Iudgment that the words are not actionable as they are laid for that it doth not appear that there was a Bastard Child drowned for the Declaration is that there was only a rumor that a Bastard Child was drowned But all the Court
Iustice held that a Bond given to appear upon an Attatchment out of the Chancery is within the Statute but it hath been heretofore a question whether a Serjeant at Arms of Wales were within the Statute but it hath been since ruled that he is not and here is a material variance in the Bond which makes it void and neither the upper Bench nor the Chancery are fixt Courts Obligation and therefore the Defendant ought not to be bound precisely to appear at VVestminster and then to add ubicumque fuerit is a material variance Chancery Variance and makes the Bond naught Ierman Iustice to the same effect and said that the Chancery may sit at any time out of the Term when they please and their not sitting in the Vacations is for the ease and conveniency of the people Nil capiat per billamn si c. Antea Paine against Prestny Mich. 1650. Banc. sup PAine brought an Action upon the case against Prestny Arrest of judgement in an action for words for speaking these words to a Constable of him Take charge of him and carry him away for I lay flat Felony to him and for speaking these words to the Plaintiff himself I will make you hold up you hand at the Bar upon not guilty pleaded an issue was joyned and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the words are not actionable but the Court held them cléerly actionable and ruled the Plaintiff to take his Iudgement except other cause were shewed to the contrary Friday following Popham against VVhite Mich. 1650. Banc. sup VPon a verdict found for the Plaintiff in a Trover Conversion Arrest of judgement in a Trover and Conversion the Defendant in Arrest of Iudgment took exception to the Declaration because the Plaintiff had declared of a Trover Conversion de decem arboribus wheras the trees were Tymber trees that were felled so they are not well expressed for the word arbor properly signifies a tree that grows and not one cut down according to the old verse Arbor dum crescit lignum dum crescere nescit and so a Trover cannot be brought pro arbore But Roll chief Iustice said that they were well enough expressed by the Declaration Declaration Description and that they ought not to be too strict in scanning some words where the thing is well described Goffs Case Mich. 1650. Banc. sup CLement Goff of Greenwitch in Kent A pardon for Felony pleaded and allowed arraigned of felony at Maidstone in Kent and there condemned was brought to this Bar and there it was demanded of him by the Clark on the criminal side what he could say why he should not suffer death according to his Iudgement whereupon the Prisoner pleaded he had a pardon and produced it and it was read openly the Prisoner kneeling on his keees in the mean time after reading of it he was asked what it was he demanded besides of the Court he answered that he prayed his pardon might be allowed which after Ierman Iustice had made a grave speech to exhort him to a better carriage for the future was done accordingly VVood against Topham Mich. 1650. Banc. sup THe case between VVood and Topham being an Action of Trespasse Arrest of judgement in trespass quare filium et heredem rapuit maritavit quare filium et heredem suum rapuit et maritavit was again spoken unto and in arrest of Iudgement Green took these exceptions to the Declaration 1. That it is too short because that after the words quare filium suum heredem rapuit maritavit there ought to have been added cujus maritagium ad ipsum pertinet for else it appears not that the Plaintiff hath cause of Action Instit f. 20. 35 El. Child and Towrs case Banc. Reg. 2ly The Declaration doth not say filium suum apparentem which it ought to do because the Father is alive 3ly It doth not expresse the Heir to be infra aetatem 4ly It doth not say the Heir is in custodia sua 5ly It doth not shew that the Heir was not married before 6ly It doth not shew that the Plaintiffs Father is dead 12 H. 4. f. 16. Broo◠Tit. Trespasse 101 Nat. brev 142. Reg. 163 Nat. Brev. 140. 20 H. 6. f. 44. And he said that a Declaration ought to be certain but that here was no certainty by reason of the former exceptions Declaration Trespass VVilmot on the other side said the Declaration was certain enough and according to the presidents and cited the Register f. 88 89. ◠rep Ratcliffs case Roll chief Iustice said It is a Trespasse to take away a mans Son and Heir although he be not within age but if it be another Son it is not so Nicholas Iustice to the same effect But because the Court was not full in regard that the damages given by the Iury were excessive the Court deferred to give Iudgement that time and perswaded the Plaintiffs councell to go to a new new try all Antea et Postea Marshall against Ledsham Mich. 1650. Banc. sup MArshall brought an Action of Debt as an Administrator against Ledsham Arrest of judgement in debt by an Administator and obteins a verdict against the Defendant It was moved for the Defendant in arrest of Iudgement That the Plaintiff had not shewed in his Declaration by whom the Letters of Administration were granted unto him as he ought to do according to the books of 26 H. 6.29 35 H. 6. The Court answered that he ought to have set it forth and therefore the Plaintiff might have demurred to the Declaration but it now being after a verdict Demurrer the question is Whether that fault be not helped by it And therefore they would advise Postea VVats and his wife against Lord. Mich. 1650. Banc. sup VVAts and his wife brought an Action of Trespasse of an Assault and Battery against Lord Arrest of judgement in an Assault and Battery and obtein a verdict The Defendant moved in arrest of Iudgement That the Declaration was by the Baron and Feme for an Assault and Battery made to the Feme and they also declare that the Defendant alia enormia eis intulit which ought not to be for the wrong being but a personal wrong done to the person of the Feme only could not be said to be done to the Husband To which Roll chief Iustice agreed Fairefax against Fairfax Mich. 1650. Banc. sup IN a writ of Error brought to reverse a Iudgement given in a writ of Dowr these exceptions were taken Error to reverse a judgment in down 1. That the original was not well returned for their appears not to be any return of the Proclamation of the summons and though the party do appear yet it was said that it is not helped thereby 2ly The demand is incertain for the demand is de tertia parte decimarum garbarum
upon the Assumpsit for this is no new promise in Law and it is all one here as if the promise had been set forth that he promised to pay when he should be thereunto required And whereas it hath been objected that the debt upon the Accompt appears to be due by two and that the Action therefore ought to have been brought against them both and not against one of them as it is here he answered that the Action may be brought against both or any one of them at the election of the party and the custom of Merchants makes no difference in the case for the Law creates the debt and makes both lyable though the custom give election to sue one or both of them and so one may here be sued for the debt is by the custom transferred upon one although it be the debt of both And here both the dayes viz. according to the old stile and according to the new were past before the action brought Roll chief Iustice held Date that the Plaintiff ought to have Iudgement but that day shall be taken according to the old stile Averment if there be not a speciall averment to the contrary and so there is variance between the pleading and the verdict but this doth not hurt here for the Action doth not fail although the day be limited upon the evidence otherwise than it is in the Declaration for the debt is the duty arising upon the accompt made between the parties Time and the day upon the Assumpsit for the payment is not material for the Action lies though no Assumpsit had been made Actual promise Debt and here is no need of an actual promise But if an Assumpsit be made upon a contract there is no precedent duty and so there is a difference between one case and the other And if two be found in arrearages of accompt Custom by the custom of Merchants one may be charged to pay all the debt as well as both Ierman Iustice as Roll and said that where the day is part of the contract it ought to be alleged to be past at the time of the Action brought but it is not so here and also both the dayes are here past Nicholas to the same purpose Roll chief Iustice If the Action be specially laid and the day made part of it there if the Plaintiff fail in the day his action also fails And if one declare generally for 100 l. upon an indebitatus and it appears upon the evidence that the Defendant did owe the Plaintiff but 10 l. yet the Plaintif shall recover But if the Plaintiff declare specially Declaration General Special viz. for a horse sold for so much and by the evidence it appears he owed a lesse sum there the Plaintiff shall not recover for it shall be intended another contract and not that upon which the Action is brought and so Iudgement for the Plaintiff nisi c. Maynard spake again to it But Iudgement was given for the Plaintiff upon the former reasons Paul VVilliams and his wife against the Custodes c. Hill 1650. Banc. sup PAul Williams and his wife had a Iudgement given against them at the Sessions at Hickes Hall Error to reverse a judgment at the Sessions for speaking words upon an endictment for speaking words against the Lord Fairefax whereupon they brought a Writ of Error in this Court to reverse the Iudgement The Exceptions taken were these 1. That the Iustices there had not power to hold plea for words spoken To this the Court answered that they have power to hold plea for such words because they tend to breach of the peace and the speaking of them is a great misdemenour The second exception was that it is said juratores jurati electi triatiad veritatem dicunt ad dicendum is left out 3ly There issued out a capias pro fine against the parties whereas there was no fine set upon them The Court to that answered that a fine was set Wild took another exception viz. that the endictment ought not to be joynt against two for words spoken by them both Endictment but severall endictments for the words of one are not the words of the other though they be the same words But the Court answered Case that a joynt endictment was good enough although a joynt Action of the Case cannot be brought against two for words spoken by them both He took also this Exception that it doth not appear that the parties were tryed in the Court for it is only said that they were ducti ad barram and then that they were removed from Hickes Hall to Newgate The Court answered that the words ducti ad barram were sufficient and it is needless to say they were tryed in Court And therefore the whole matter rests upon the 2 d. Exception whether the want of the words ad dicendum be Error and for that let the Clark of the peace be here on VVednesday next and then speak again to it and then by the whole Court the Exception was adjudged good And the Clark of the peace was fined 40 l. Masterman against Rusholme Hill 1650. Banc. sup Pasc 1650. rot 594. A Writ of Error was brought to reverse a Iudgement given in an Action upon the Case upon an Assumpsit Error to reverse a judgement in an Action upon an Assumpsit to pay Mariners wages the Exceptions taken were first that the plaint was for 10 l. and the Declaration is to the damages of 20 l. and so there is variance between the plaint and the Declaration Next the promise is laid to be made the 1. of May 1641 to serve the Defendant for a year and he saith that he served him from the 1. of May for a year whereas the 1. of May ought to be excluded so that he ought to say that he served for a year from the making of the promise Roll chief Iustice said Variance that there is variance between the plaint and the Declaration but it is helped by the verdict for that finds that he hath served a whole year But two other exceptions were taken at the Bar. 1. That the Declaration was pro salore insteed of Salario And 2ly It is said deserviret for deservivit Error And upon these the Court ordered the Defendant in the VVrit of error to shew cause why the Iudgement should not be reversed Hill 1650. Banc. sup AN Action upon the Case was brought in London for calling a woman whore the Defendant removed the cause into this Court For a Procedendo into London whereupon the Plaintiff moved for a procedendo to try it in London where the action was first brought Roll chief Iustice held that a procedendo was to be granted for we cannot determine the Custom but if a Iudgement be given in London if it be erroneous a writ of Error may be brought in the Hustings to try the custom therefore
Testator meant Heir of his Lands and not the element of Ayre or a year as hath been strangely objected and would prove a ridiculous construction Osborns case 10. rep in Thyns case in this Court a demand of dower de capella although the word were of doubtfull construction in it self yet by the subject matter it was held to be made certain enough so the word Ayeare here shall receive construction according to the subject matter and the coupling of it also with the word Yexecutor which is also falsely written shews the Testators intent For answer to the main objection viz. that in 6 Car. there was a decree made in the Court of wards by advise of the Iudges that this was a void and sencelesse Will I say that that decree is not of so great waight as is a Iudgement given in a Court of judicature at the common Law and this was but an opinion delivered in Court where the Iudges were not Iudges and the decree was made as I am enformed because they believed the Will to be nonsence Heir the contrary whereof doth appear by my argument The Court enclyned strongly that the Testator intended to make the Devisee Heir of his lands and that the words can receive no other construction for other constructions would be very strange Will. and forced and the party that made the Will is to be considered as one that was inops consilii and also that wanted a scribe and his intent seems plain and shall not be taken according to the Civill law and if it should the word Heir will as well extend to the lands as goods Adjourned to be argued again Kymlock against Bamfield Mich. 1651. Banc. sup Mich. 24. Car. rot 592. KYmlock brought an Action upon the case upon an indebitatus assumpsit against Bamfield for making of apparel The Defendant pleaded Demurrer in an action on the case upon an indebitatus assumpsit that he became bound in a Bond of 60 l. to the Plaintiff in satisfaction of the Debt and that the Plaintiff accepted of it the Plaintiff replyed that he did not accept of it to this replication the Defendant demurred shews for cause that the Plaintiff had tendred an issue upon the non acceptance of the Bond whereas it should have been that the Defendant non devenit tentus On the other side it was said that it is well enough that it is sufficient to say non accep it and it is not necessary to say he refused the obligation and though the replication be not good yet the plea is also naught and therefore no Iudgement can be for the Defendant The plea is quod devenisset tentus whereas it ought to be devenit tentus And 2ly He shews not in what sum or place nor that he became bound in satisfaction Roll chief Iustice said that by entring into Bond the former contract is gone if you do not refuse it and it is not sufficient to say you did not accept of the Bond for you may yet accept it if you please and the party cannot plead non est factum Contract if you bring an Action upon it until it be absolutely refused and the contract here is turned into a Bond and the law determines the contract Plea and it is not all one with pleading of the acceptance of a horse in satisfaction or or any other thing as a collateral satisfaction and the Plaintiff ought to shew that he refused the Obligation and doth yet refuse it And here is a negative preignans Negative preignan◠for you imply by saying that you accepted not the Obligation in satisfaction that he gave you the obligation and you might have said Non devenit tentus and for the other exceptions they are to no purpose Discontinuance And therefore Iudgement ought to be given against you but by the favour of the Court we can give you leave to discontinue your Action Harding against Freeman Mich. 1651. Banc. sup HArding brought an Action upon the Case against Freeman and declared against him Arrest of Iudgement in an Action upon the case upon the sale of a Horse that the Defendant did sell unto him a Gelding and upon the sale did falsely affirm unto him that the Gelding was his own Gelding and that he bred him of a Colt whereas he bred him not of a Colt neither was it his own Gelding but another mans Gelding and so concludes to his damage Vpon not guilty pleaded and a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement 1. That in this sale of the Gelding the Defendant had made no warranty of him and therefore though the sale were not good yet the Action lies not 2ly The Plaintif doth not declare that the Defendant knowing the Gelding to be another mans did affirm him to be his own and so here doth not appear to be any fraud in the sale Twisden answered that the words are sufficient to imply a disceit though they express not that he knowing it to be another mans horse did make that affirmation for the words are that he did it falso et fraudulenter and affirmed the Horse to be his own But the Court stayed the Iudgement for they said that here is no direct affirmation but only an intendment that scienter fecit yet afterwards judgement was given for the Plaintif Davis against the Lord Foliot Mich. 1651. Banc. sup DAvis brought an action of Assault and Battery and wounding against the Lord Foliot and had a verdict against him and a writ of enquiry of damages For a new writ of Enquiry of damages and upon the writ of Enquiry 200 l. damages were found The Plaintif moved the Court for a new writ because by reason of the wilfulness of the Iury the damages were found too small Twisden on the other side urged that it could not be because there was no miscarriage proved in execution of the writ but it appears to be well executed Roll chief Iustice answered though we grant not a new writ yet we can increase the damages upon view of the wound and here appears to have been a foul Battery by the dagger produced in the Court Damages increased by the Court. and by the party himself that is wounded and it is not fit that a wilfull Iury should prejudice the party therefore either consent to a new writ or else bring your witnesses on both sides and we will hear the motion again At another day Wild said the Court cannot increase damages upon a view of the party if he be not maimed and here is no maiming but only a Battery and wounding But the Court answered that they would advise upon that point for it séems there is the same reason for encreasing of damages in both cases At another day Green moved for increase of damages upon the view and urged 9 H. 4. f. 1. 3 H. ◠◠10 H. 4. and Bret and Middletom case in this
mony and thereupon the Defendant moved to have the moniés out of Court Roll chief Iustice Peremptory The Plaintiff hath lost his mony â—y this verdict therefore let him shew cause why the Defendant should not have them for it is peremptory to the Plaintiff Franklin Mich. 1653. Banc. sup IN an Action of Accompt the Defendant was adjudged to accompt Motion for Merchants to be joyned to Auditors assigned to receive an accompt and Auditors were assigned The Court was moved that they would order to joyn some Merchants to the Attorneys on either side to help them to mannage the Accompt because the Attorneys were not skilfull in such businesses Roll chief Iustice We can make no rule for this but you may by consent advise with Merchants to assist you in drawing up the Accompts Mich. 1653. Banc. sup BY Roll chief Iustice One burned in the hand may be a Witness one that hath been burned in the hand for Felony may notwithstanding be a witness in a Cause for he is in a capacity to purchase Lands and his fault is purged by his punishment Townsend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. TOwnsend brought an Action upon the Case against Barker Arrest of judgement in an action for words that had béen a Copartner with him in trade for speaking these words of him You are a cosening Knave and did cosen me of 1200 l. at one time and that was in making an accompt in the year 1648. Vpon a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable because though they he spoken of a Tradesman yet they are not spoken of him in reference to his Trade but in reference to an Accompt and although by way of reduction and consequence they may reflect upon his honesty yet they are not actionable and though his reputation be impaired by speaking them yet he cannot be endicted for cosening in his Trade by reason of them because they are spoken of a singular and particular abuse and not of a general cosening used in his Trade and an Action upon the Case lies not for words which are only scandalous by way of reduction and if the words should hinder the party to get a Partner hereafter to trade with him yet he may use his Trade and so cannot be prejudiced nor are the words that he cheated him but that he cosened him which are not of so violent a construction Wild on the other side said that here is a Partnership which is necessary to the driving of a Trade and without which it cannot be so well driven and the Accompt is incident to all Partnerships and prayed for Iudgement Roll chief Iustice If the Copartnership continued the words were actionable without doubt for then they must be spoken of him in the way of his Trade Case but here the Partnership being ended makes the matter more considerable but yet as it is the words are scandalous and may hinder him from getting a Partner for the time to come and it may be he cannot mannage his Trade without a Partner and although an Accompt be a private thing yet the Plaintiff is disgraced by the speaking of the words and none will deal with a man that will cosen his own Partner and we must countenance Trade and Traffique and mens credits and the Accompt is not so collateral a thing to trade as Hales objects as is the hiring of a shop to trade in or the like German Iustice ad idem and said that Copartnership is necessary to support Trade and the keeping of a true Accompt is the principal thing between Partners Nicholas and Ask Iustices ad idem Judicium nisi pro querente Bird and Christopher Mich. 1653. Banc. sup IN this Case upon giving of an evidence in a Trespass and Ejectment Extinguishment of a Proviso in a Deed. it was said by Roll chief Iustice that if I do enfeoff I. S. with a Proviso contained in the Deed that it shall be lawfull for me to revoke this Feoffment and afterwards I levy a fine to I. S. of the same Land this is an extinguishment of the Proviso of revocation Olive and Tong. Mich. 1653. Banc. sup Trin. 1651. rot 1426. Vpon a special Verdict in an Action of Trespass and Ejectment Special Verdict in a Trespass and Ejectment the Case in effect was this One whose Sirname was Mills seised of Gavelkind-lands in Kent in fee by his last Will and Testament devised these Lands to Elizabeth his Daughter in tayl with a Proviso in the Will that if his Daughter Elizabeth did mary one of his own Sirname that then she should have the Lands in fee-simple Elizabeth maried one whose Sirname was Mill but commonly called and known by the name Mills also The question was whether she had maried one of such a Sirname whereâ—â— according to the Proviso in the Will she had a fee-simple in the Lands â—evised unto her or whether his Sirname should be accompted a distinct name from the Testators so that Elizabeth by the Will could only have an Estate in tayl in the Lands devised unto her It was argued first that the name Mill and Mills shall not be said to be one and the same name no more than if she had maried one of a clear differing Sirname in sound yet commonly called also Mills could she have been said to have maried one of his own Sirname and the Proviso here is not a particular pointing out of the person whom his Daughter should mary but a general limitation directing her to mary one of his own Sirname and this ought to have been punctually followed because the name was used to induce the affection of the Devisor to enlarge the estate given by him If he had devised his Land to his Daughter E. if she shall mary a Protestant or an Earl she must mary one that is really so and not one called or only reputed so And as to the objection that this construction would make contrariety in the Will which is not to be admitted this will not be if the Will be taken compositive as it is penned or together and not abstractive and taken to pieces and if it should not be intended that she should mary one who in truth was of his name there would be a contradiction in the Will and here is an Emphasis in the word Own which must be meant his real name and not of a reputative name Roll chief Iustice If a Iuror be retorned by the name of Mills and is sworn by the name of Mill shall this be a mistryal quasi non and the words found alike as Baxter and Backster At an other day the Case was put again by Hales and argued for the Plaintiff and he made divers points in the Case but I could not well hear him but the only point insisted on was the point formerly spoken to and the sum of his Argument was that we are in
Corpus said that he had no more to say than what he had formerly offered only he added that it was a tender and a leading case and therefore to be well advised of Roll chief Iustice For the first part of the return Return I conceive it too general for it doth not appear in what the books are scandalous for the publishing whereof he was committed 2ly I conceive that the Order of Parliament ceaseth with the Parliament Order which is dissolved as an Order of one Session of Parliament ends with the Session Committee and is not like an Act which continues after the Parliament and all Committees made by order of Parliament do cease by dissolving of the Parliament but those which are made by Act of Parliament doe continue afterwards and this individual Parliament being dissolved they can now make no further order Bail and so the prisoner may lie perpetually in prison and he hath already lain long in prison and therefore it is reason he should he bailed The prisoner was admonished to be quiet and not henceforth to disturb the State The prisoner was ordered to bring sureties to be bound in 500 l. for his appearance here the next Term and sic de die in diem until Mr. Attorney will proceed against him if he will proceed at all Hudson and Dickenson Hill 1653. Banc. sup THe Court was moved on the behalf of the Plaintif For entry of a Nil capiat per Billam for expedition that a Nil capiat per billam may be entred against him for expedition in an Action of Trespass for taking away his Cattel wherein he had obtained a Verdict because he had declared for taking away 6 Mares and Colts and did not shew how many Mares and how many Colts particularly Roll chief Iustice Let a Nil capiat per Billam be entred Pinchard and Fowke Hill 1653. anc sup PInchard brought an Action upon the Case against Fowke Arrest of Iudgement in an Action upon an Assumpsit upon an Assumpsit and declares that the Defendant in consideration that the Plaintif would forbear to protest a Bill of Exchange drawn upon the Defendant that he would pay the moneys when he should next come to London And upon an Issue joyned and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that here is no consideration set forth to ground the promise upon for he doth not shew that he came to London but shews that he dyed at Plymouth and came not to London Roll chief Iustice Consideration Duty The coming to London is alleged to no purpose for the payment of the money was a duty and the monies to be paid were received beyond Sea and so is a duty and made a good consideration therefore let the Plaintif take his Iudgement Pasc 1654. Banc. sup IT was said by the Court that when an Informer hath attached his Action in a Court another Informer cannot inform for the same thing A good plea against an Informer and it he do it is a good plea in Bar to the second Informer that an information is depending against him for the same thing Note Trin. 1654. Banc. sup BY Roll chief Iustice A Bailif of a liberty hath return of writs How a rescous is to be expressed Bailif and therefore a rescous made from him must be expressed to be out of his hands but a rescous made from the Sherifs Bailif must be expressed to be out of the hands of the Sherifs Bailif for the Bailif is but the Sherifs servant Patnell and Brooke Trin. 1654. Banc. sup THe Court was moved upon an Affidavit to stay Execution upon a judgement given for an Administrator To stay execution upon a judgement Audita querela because the Letters of administration were repealed before the judgement entred Roll chief Iustice The matter comes not legally in question before us you must bring your audita querela yet let Hern the Secondary examine it Trin. 1654. Banc. sup THe Court was moved for a writ of Distringas against the Inhabitants of a Town in Huntingtonshire For a Distringas against Inhabitants of a Town Plea for throwing in of banks of the Earl of Bedfords in his drained lands Roll chief Iustice Take it but at the return of the writ the Inhabitants may plead to you notwithstanding Noy the late Kings Atturney would not have suffered it Note and the Sherifs of London Trin. 1654. Banc. sup AN Action upon the Case was brought against the Sherifs of London for not returning a fieti facias The Defendants plead not guilty Moved that the Defendants might plead specially and a Iury was returned to try the issue and after the Defendants filed the return of the Scire facias Wadham Windham moved that the Defendants might waive their general plea of not guilty and might plead specially viz. That they had executed the writ Roll chief Iustice Amendment You have pleaded already and it is in our power whether we will suffer you to alter your plea or not and we will not doe it without the Plaintif will consent therefore make the best of that plea you have pleaded upon your tryal Oyles and Marshall Trin. 1654. Banc. sup VVIld upon a rule to shew cause why a Prohibition should not be granted to the Court of Policy of assurance in London Against granting a Prohibition to the Court of Policy of assurance shews for cause that the Defendant had pleaded there and the Plaintiff had replyed and that the cause was ready for Tryal and that the principal matter was fit to be tryed there and they had authority to try it Roll chief Iustice If they have Iurisdiction of the principal matter they have also Iurisdiction of all matters incident thereunto Iurisdiction Tryal and they may try them according to the course of their Law so that it be not contrary to the Common-law Therefore discharge the former rule Trin. 1654. Banc. sup BY Roll chief Iustice Who of common right are to repair a Sea-wall If no particular person by Custom be bound to repair a Sea-wall wherein a breach is made the whole Level are bound to do it Trin. 1654. Banc. sup VPon evidence given in a Tryal at the Bar between Sir Iohn Bridges How a Will may be revoked and my Lord Chandois it was said by Roll chief Iustice that one may revoke a Will in writing by Paroll and may revive it again by Paroll Trin. 1654 Banc. sup THe Court was moved for a Habeas Corpus for one out-lawed in felony For a Habeas Corpus because he cannot be tryed there where the felony was done untill the Outlawry be reversed But it was prayed for the Protector that a Habeas Corpus may not be granted because the Prisoner stands committed for divers felonies and rapes Roll chief Iustice He shall be brought hither by a Habeas Corpus to reverse the Outlawry but we
too generally expressed and cannot be levyed equally by such a tax 5ly The Plea sets not forth that there was any notice given to Whitley of the tax made before the distresse taken as there ought to have been and for these reasons he concluded that the Plea was not good Bacon Iustice held first Waiver that the Party had waived his benefit of the Plea given him by the Statute by pleading specially and he ought to make good his plea as he hath pleaded it at his own perill He held likewise that there ought to be notice given of the tax and a demand of it before any distresse might be taken and that the Plea was defective in this 3ly Notice That he cannot sell a strangers goods for the tax as Whitley is for ought that appears in the Plea 4ly Demand By the Plea it appears that he hath distrayned one Acre of Land for all the tax which ought not to be and upon these exceptions the rule was for the Defendant to shew cause before the end of the Term why the Plaintiff should not have Iudgement Sr Maurice Abbot Pasc 23 Car. Banc. reg SIr Maurice Abbot had a Iudgement against one and dies Motion to Vacate a Iudgement and three years after Execution is taken out in his name upon the Iudgement the Court was moved to vacate this Iudgement but would not for they said that there was no help in this case but by bringing a writ of Error ☞ Error except there can be any fraud proved in the proceeddings and then the Court will take order to help the Party grieved Fraud And thereupon ruled to examine the Attorney and the Partyes whether there was due proceedings or no. Vill de Charleton in Kent Pasc 23 Car. Banc. reg A Man was killed at Charleton in Kent Motion to quash a presentment and take off Amercements upon which the Coroner takes an inquest and returns it into the Crown Office upon this a presentment was drawn up in the Crown Office against the Vill. of Charleton and found and thereupon issues went out against the Vill It was moved for the Vill to have them discharged by reason that the presentment was not good for it was grounded upon the Statute of 3 H. 7. chap. and sets forth that such a person was killed at Charleton and that the murderer fled away in the night by which it appears that the Vill. is not lyable to be amerced within the Statute for the murtherer ought to escape in the day by the Statute Amercements and not in the night and for this it was quashed and the Amercements discharged 23 Car. Banc. reg THe Court was moved to quash an order of sessions For quashing an order of the Sessions of Peace for keeping a Bastaâ—d made for the keeping of a Bastard Child and these exceptions were taken to the order First the order was that the Party should pay a weekly sum for the keeping of the Child whereas no such order could be made without the Parties consent for by the Statute he is only compellable to secure the Parish where the Child was born that it should not be any charge to the Parish Another exception was that it appears not that the Iustices had any power to make any order at all in the case for it appears not where the Child was born and so it may be it was born in an other County where these Iustices have no authority to Act any thing concerning it Vpon these exceptions it was quashed THe Court was moved for a certiorari to the Court of Sandwitch For a certicratio to remove Endictments out of one of the Ciâ—que-ports to remove four Endictments there for shooting in a Gun and pulling up of a post because the facts for which the Party was Endicted were not done within the Iurisdiction of the Court But because Sandwitch was one of the Cinque-ports and it had been a question heretofore whether this Court could send such a writ thither The rule was only for cause to be shewn why a certiorari should not be granted Tory. Pasc 23 Car. Banc. Reg. TOry brings an Action of Trespass and false imprisonment against I. S. simul cum aliis c. The Defendant pleads not guilty Arrest of Iudgement in an Action of Trespasse and a Verdict is given against him for the Plaintiff It was moved in Arrest of Iudgement that the declaration was not good because it declares against I. S. by name solely and it ought to have been joyntly against him with the others naming them also because the trespass was joynt and not against I. S. alone but the Court held that the declaration was good because it was with a simul cum although the Persons were not named Declaration and said that this was the constant course of the Common Pleas And that an ejectione firmae against one simul cum had been ruled to be good Ejectio ne â—â—mae and so used in the Common Pleas although heretofore it hath been adjudged to the contrary yet the Iudgement was stayed till the other should move Jones against Young Pasc 23 Car. Banc. Reg. Hill 22 Car. rot 1857. IOnes brings an Action of Assault and Battery against Young Young justifies as servant to I. S. because Error to reverse a Iudgment against the Plaintiff in Trespasse that Jones came to fish in the several Piscary of his Master Iudgement was given for the Defendant A writ of Error was brought and two exceptions taken 1. That whereas Young had in his Plâ—a of Iustification entitled his Master to the several Piscary by the Kings Letters Patents he had not shewn that the King was seised of this several Piscary jure Coronae and so it might be the King had no power to grant it 2ly He doth not shew his Letters Patents which he ought to do because he derives a title by them Title The rule was to shew cause Saturday next why the Iudgement should not be reversed The Earl of Lecester against Mrs. Samford Pasc 23. Banc. Reg. IN a Trover and Conversion brought by the Earl of Lecester against Mrs. Samford for certain Iewels the Trover being laid to be in Kent but the Offring the goods to sell being the Conversion of them being in London It was doubted where the tryal should be and the Court sayed that generally a transitory Action is to be laid where the fact was done Venire yet the Party is not tyed to lay it there but may lay it in another County and in this case it was held by the Court that the Plaintiff may bring his Action where the Iewels were sold and that was in London as well as in Kent where the Trover was laid Trover for part of the ground of the Action to wit the Conversion was in London though part of it namely the Trover was laid to be in Kent Basely and Baseley Pasc 23
Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in Norwitch and the Error Assigned was Error to reverse a Iudgment in Norwitch that there did but five of the Iury empanelled appear at the tryal and yet a Verdict was given and Iudgement thereupon The Court said that a Corporation cannot grant a tales neither if they could doth it here appear that there was a tales granted and therefore reversed the Iudgement Sir VVilliam Bronker Pasc 23 Car. Banc. Reg. SIr William Bronker was brought before a Iustice of Peace upon an information made Habeas corpus for one committed by a Iustice of peace for refusing to find sureties for the good behaviour that he had choated one at play with false dice the Iustice requires him to find sureties for his good behaviour and upon his refusal commits him to Prison Sir William Bronker brings his habeas corpus in this Court and upon the retorn this matter appear'd the Prisoner prayes by his councell to be delivered because there appeared no matter sufficient upon the retorn why he should be committed but because the Gâ—oler desired time to amend the retorn the Court granted it and would not deliver the Prisoner but took vail for his appearance viz. the Earl of Dover Good behaviour and Earl of Chesterfield And the Court then said that a Iustice of Peace cannot bind one to the good behaviour upon a general information or commit him to Prison for refusing to find suretyes for his good behaviour upon such information Imprisonment VVroath and Elseye Pasc 23 Car. Banc. Reg. Hill 22 Car. rot 1224. AN Action of Debt was brought against Elseye an under Sheriff by Wroath the high Sheriff upon a bond given him to save him harmlesse Demurer to a plea in Debt upon an obligation c. the Defendant pleads that he hath saved him harmlesse to this the Plaintiff demurs and held a good demurrer for he ought to have pleaded non damnificatus and not generally that he hath saved him harmlesse for that he may do in many things and yet the Plaintiff may be damnifyed in some other things where in he was also bound to save him harmlesse The rule was to shew cause why Iudgment should not be given for the Plaintiff VVhite Pasc 23 Car. Banc. Reg. A Iudgement was given in an Action on the Case brought by an Atturney for these words spoken of him Error to revâ—rse a Iudgment in an Action on the Case for words Thomas White is a perjured Knave and a suborned Knave A Writ of Error was brought and divers exceptions taken but the principal were two 1. That the words aâ—â— not well laid for they are adjective words and so not positive enough to ground an Action 2. The words are not Actionable because it is not declared that the party of whom they were spoken was of any Trade or had any office But Bacon Iustice over-ruled all the exceptions and ordered cause to be shewn next day why the Iudgement should not be affirmed The Case of one Nicholas and Webb was afterward cited Case where Iudgement was given in the Common pleas for calling an Atturney Knave which Iudgement was said to be afterwards affirmed in the Kings bench 12 Car. Trin. rot 102. Saunderson and Martin Pasc 23 Car. Banc. Reg. Trin. 22 Car. rot 867. A Iudgement was given in an Action of Debt upon an obligation Error to reverse a Iudgment in Debt to perform such a promise made by the Obligor to the Obligee and a Writ of Error was brought to reverse this Iudgement The Error assigned was that the breach of the promise was not well assigned for it did not appear when this breach of promise was Bacon Iustice The breach of promise is the sole cause of the Action and it appears not to the Court when that was and for this he reversed the Iudgement Paine and Skeltrom Hill 23 Car. rot 740. AN Action of Debt was brought upon an obligation Demurrer a Plea in Debt upon an Obligation the condition was that Skeltrom the Defendant with his Wife should appear at the Marshals Court and for not appearing according to the condition was the Action brought Skeltrom appears and pleads that at the time of the obligation he was solus et innuptus To this Plea the Plaintiff demurrs Rolle Iustice said this Plea was not the same with ne unques loyalment accouple for one extended to a feme de facto and the other to a feme de jure The Court then advised of the Plea but Trin 23 Car. ruled to shew cause tomorrow why Iudgement should not be given for the Plaintiff Stoughton and Day Pasc 23 Car. Banc. Reg. SToughton an undersheriff brings an Action of Debt against Day one of his Bailiffs Demurrer upon a Declaration in Debt upon an Obligation upon an obligation with a condition to save the under-sheriff harmlesse in executing of processes and other things contained in the condition and Assignes the breach of the condition to be that the Bailiff had not Executed such his warrant sent to him upon a processe to him directed out of the Exchequer to levy issues upon certain lands To this declaration the Defendant demurs and shews for cause 1. That the warrant to him directed by the undersheriff was made out of the County where he was undersheriff and so could not be said his warrant as under-sheriff of that County 2. It is not alleged that the mannour of Addinson where he was by the warrant to levy the issues is within the Hundred where the Bailiff hath Iurisdiction Warrant And this the Court held to be a good exception and said that the breach Assigned is not shewed to be within the Condition of the Obligation because the Baily cannot execute a precept out of the Hundred where he is Bailiff and Thereupon the rule was that the Plaintiff Nil capiat per billam if cause were not shewn Tuesday following Cook and Fincham Pasc 23 Car. Banc. Reg. A Iudgement was given for Cook For vacating a Writ of Execution upon an information upon a Statute exhibited by him on the behalf of the King and himself where the King was to have ten pounds of the penalty recovered Cook takes out an Execution upon this Iudgement to levy the whole sum of money recovered to himself as appeared to the Secondary upon examination of the matter referred to him Upon this the Court held the writ of Execution to be ill Execution because it was entire for the whole sum recovered to the party whereas 10 l. was due to the King and ordered a new Writ of Execution and to stay the money in Court till further advice of the matter taken Clark and Pew Pasc 23 Car. Banc Reg. AN Action of Trover and Conversion was brought by Clark Arrest of Iudgement in an Action upon the Case against Pew and his wife and the Declaration was that
ought not to be restored which in brief was for carrying himself in a tumultuous way at an election of Common-Councell-men and disturbing the election this Retorn was read and filed and the Councel thereupon prayed he might be restored because there was not sufficient matter shewed in the Retorn why he should not be restored and these exceptions were taken to the Retorn 1. That it was too general and shews not what manner of disturbance Estwick made at the Court where the election was 2ly Part of his misdemenour is set forth to be clamando veciferando which are words very uncertain and not proper to set forth a disturbance 3ly It was said he was bidden to withdraw and refused and it is not shewn why he should withdraw 4ly The custom set forth for the Lord Maior and Court of Aldermen to imprison ad placitum is not good but they should have shewn that such imprisonment belonged to them per consuetudinem or by the Common-law 5ly They say that they had used to imprison for such causes and do not shew where the custom is used 6ly They say quaedam quaestio orta est touching the election of one to be a Common-Councel-man and shew not his ability for the place 7ly By the incertainty of the Retorn the Plaintiff cannot plead to it 8ly It is said that when he was commanded to go forth he said he would not but it is not said that he did not go forth 9ly It is said that the Court of Common-Councel tendred the Covenant whereas they have no power by Ordinance of Parliament to do it The Recorder of Councell with the City desired time to amend the Retorn in matter of form only And said that the Plaintiff was removed from his place by a Court of Record and therefore hoped he should not be this way restored and that he had no loss by being removed and therefore the Case was the less considerable and whereas it was objected against his amending of the Reton that it was filed so too late to move for it He said that it was not filed by order of Court but only ordered that Copies might be taken of it for Council to peruse and if so then it is not too late to pray it may be amended but though it were filed he conceived that in a case of this importance it might be amended in matter of form as some Reforms had been formerly in this Court Roll Iustice answered the Recorder to this effect You ought to shew some cause upon which the party may have remedy by a Writ of Error or otherwise Return if Iudgement be wrongfully given against him which you have not done and as to the filing of the Retorn Filing a Retorn may be filed either upon motion of the party or by the rules of the Court and it were good you consider how this was filed and as touching the suspension of the party from his place Suspension it ought not to be perpetual but for a time only and said that after filing of a Retorn be it upon motion or by the rules of the Court it cannot be amended Tuesday next following was given by the Court to hear Councel on both parts Amendment Chadly and Stinch Trin. 23 Car. Banc. Reg. Mich. 22 Car. rot 556. STinch brought an Action upon the Case upon an Assumpsit in the Common Pleas against Chadly and hath a Verdict and a Iudgement Error to reverse a Iudgment in an Action upon an Assumpsit Stinch brings a Writ of Error here to reverse this Iudgement and assigns for Error 1. That there were 18 returned upon the Iury and but two of them tryed the issue 2ly Part of Declaration to ground the Assumpsit was in another County and not within the Iurisdiction of the Court where the issue was tryed and for these Errors the Iudgement was reversed except cause should be shewn to the contrary Thursday next Trin. 23 Car. Banc. Reg. IT was moved to quash an Endictment for erecting of a Cottage contrary to the Statute To quash an Endictment for erecting a Cottage the exception taken to it was that he erected a Cottage for habitation but did not say it was used or inhabited as a Cottage But Bacon Justice answered that the very erection of it is an offence against the Statute and therefore the Endictment did very well pursue the words of the Statute and therefore would not quash it VVright and Pynder Trin. 23 Car. Banc. Reg. Mich. 22 Car. rot 440 antea 22 THe Case of Wright and Pynder was moved again to have the Iudgement of the Court. Opinion of the Court on a Demurrer upon an evidence Roll Iustice said that matter of fact ought to be agreed in a Demurrer to an Evidence otherwise the Court cannot proceed upon the Demurrer for the Iudges cannot try the matter in fact for that were for the Iudges to give the verdict which belongs to the Iury to do and to waive the matter in Law Pleading which they should determine and he said that if a Deed be pleaded the party must shew it in Court but if it be given in evidence it is not necessary to shew it if it can otherwaies be proved to the Iury Evidence and so is it of a Record given in evidence and cited one Worsseys Case 17 Iac. Rolls Iustice took also two other Exceptions to the pleading 1. That the Goods mentioned in the Schedule appear not to be the same contained in the Declaration 2ly No Title is made to the Indenture by him who brings the Action and concluded upon the whole matter that the Demurrer was not good and that there ought to be a Venire facias de novo to try the matter again Venire de novo Iudgement Bacon Iustice much to the same effect but differ'd in this that there ought not to be a Venire facias de novo but said that Iudgement ought to be given against one party to wit the Defendant for ill joyning in Demurrer to the intent the party that is not in fault may be dismissed and the parties here have waived the Tryal per pays by joyning in Demurrer But Roll answered that no Iudgement at all could be given for both parties be in fault one by tendring the Demurrer the other by joyning in it and the Defendant might have chosen whether he would have joyned or no but might have prayed the Iudgement of the Court whether he ought to joyn The Court advised to search presidents for a Venire facias de novo after a Demurrer upon an evidence and if there be any they held that the same Iury ought to come again and not another Roll said Iury. if a special verdict be found insufficient a new Venire facias ought to issue and he saw no difference between that and this Case King and Summerland Trin. 23 Car. Banc. Reg. IN the Case of King and Summerland again moved the
the mony is not paid a Iudgement is obtained against White for the mony White makes his will and makes his Heir at law his Executor and dyes leaving lands to descend White as Heir brings a Writ of Error to reverse this Iudgement It was argued by the Councell of the Plaintiff in the Writ of Error that the Writ did lye because although the Action in the former Iudgement was but a personal Action yet in this Case the Land of the Heir may be charged by the Iudgement Heir Elegit for an elegit may be thereupon taken out to charge â—is Lands and therefore the Iudgement concerns him as Heir as well as Executor and therefore it is reason he should bring a Writ of Error to reverse the Iudgement because he may be prejudiced by it Executor And a Case in Trin. 29 Eliz. rot 631. Banc. Reg. was cited that the Heir is pridy to the Iudgement and therefore shall have a Writ of Error Error and he is not meerly terr-Tenant 13 E. 4.2 Roll Iustice the terr-Tenant sole shall not have a Writ of Error upon an extent Error And in the Case at the barr the Heir is not privy to the Iudgement and the extent is only upon him as terr-Tenant and he is not made privy to the Iudgement by the extent but after Execution he may have a Writ of Error and he said Bail the Bail cannot bring a Writ of Error upon the Iudgement given against the Principal and the same reason is here and it will be very hard to maintain this Writ of Error Adjourned to the next term Terry and Baxter Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 394. TErry brings an Action of Debt upon an Assumpsit against Baxter Demurrer upon an Dclaration in Assumpsit to stand to an award to stand to an Award The Defendant pleads nul arbitrement the Plaintiff sets forth the award and assigns a breach The Defendant demurs and for cause shews that part of the award was to pay 5 l. to the poor of the Parish of D. which was not within the submission and so the award was not good Rolle Iustice answered if the award be void to the 5 l. Award good in part i a good award awarded to be paid to the poor yet it is good to the rest for it is perfect as to the ending of all differences between them which are submitted and therefore shew cause on Monday next why judgement should not be given for the Plaintiff Morefield and VVebb Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 50. VVEbb brings an Action upon the Case against Morefield in the palace Court at Westminster Error to reverse a Iudgement in an Action upon the Case and hath a Iudgement Morefield brings a Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. It is not shewed in the Declaration that the cause of Action was infra jurisdictionem palatii But Rolle Iustice answered Iurisdiction that it was shewed to be infra jurisdictionem Curiae and that was good enough for the Court is alleged to be held by Letters patents Retorn A 2d Exception was that there was not fifteen dayes for the retorn of the Venire facias as there ought to be But to this Rolle Iustice also answered that the Court is held by Letters patents and therefore it may be retornable within fifteen dayes though by the usual course of the Common law it cannot And therefore ordered the Plaintiff in the Writ of Error to shew better matter otherwise Iudgement should be affirmed against him The King and Holland Trin. 23 Car. Banc. Reg. THe Case between the King and Holland was moved again For quashing an inquisition for the King Inquisition and the Councell against the King moved that the inquisition found for the King to entitle him to the use of the Copyhold might be quashed because the King cannot be intitled to such a use because it is a thing in privity only and cited the Statute of 27 H. 8. of uses Vse and Cooks 1. rep 123 and said that the King cannot be intitled ot Copyhold lands of an Alien much lesse to the use of Copyhold lands Copyhold King VVrong Protection Trust if he should 1. The Lord would be wronged which the King ought not to do but to protect his subjects for the protection of the subject is not only matter of honour to the King but also of trust in the Crown 2ly A stranger is wronged by it 3ly The Copyholder of the Manor cannot have remedy for the injury done him Sute for he ought to sue in the Lords Court and not else where and here he cannot do it and the rule in law is de minimis non curat lex and it is much lesse for the honnour of the King to have a Copyhold estate Honour which is a base tenure But it may be objected that if the King shall not have this use he shall be in a worse condition than a subject To this it is answered that he shall be so in cases which touch his royalty and may be a disparagement to him Copyhold which indeed doth not make him in a worse condition though it may seem so but it is more for his honor and a Copyhold is an estate at the will of the Lord and ought to be protected by the Lord and the King cannot be Tenant at will to any Alien Trust and therefore cannot have a Copyhold estate and an Alien is not capable of a trust because it is a thing in Action which an Alien cannot have and therefore he cannot derive it from him Twisden for the King in his Argument considered 1. Whether the King can have a use at the Common law which is for an Alien 2. Whether a trust differs from a use for the first he said that an Alien may purchase lands Alien Praerogative and a use at the Common law but he cannot retain them therefore the King shall have them by his Praerogative and a use is not a thing in privity but is an Antient inheritance at the Common law 2ly There is no confidence annexed to cestui que use or to the Feoffor but may be disposed of 3ly Things privity in Action may be given to the King Privity and a use is an inheritance in the nature of a Chattell 4ly A use is grantable over Privity and therefore may be given to the King and the meaning of the word lost in the Statute is to be intended that it may be lost for the difficulty of finding such subtile conveyances and not that the right was really lost Trust And for a trust it is but a new name given to a use and invented to Defraud the Statute of uses and a trust of a Copyhold is all one with another trust for it is the taking of the profits of the land and not the Estate in
of Infamy and disgrace and not of dammage to the Plaintiff But it was said that it had been adjudged that an Action did lye for saying one had been endicted of Barratry where the party that was endicted was acquitted and for saying one was a Banckrupt Rogue But because Panel of Councel with the Defendant said Presidents he could shew Presidents that the words are not actionable the Court forbore to give Iudgement but desired to see them and gave him time to bring them in another day Panel cited two Presidents but no Iudgement in either Whereupon Iudgement was given for the Plaintiff Blackwell and Ashton Trin. 23 Car. Banc. Reg. FOwer several persons were bound conjuctim and divisim in an Obligation to Blackwell Demurrer to a Scire facias upon a Judgement Demurrer Abatement Blackwell hath a Iudgment against them one of the Defendants dies Blackwell sues out a Scire facias against the 4. and it was demurred to the Scire facias because one of the Defendants against whom the Iudgement upon which the Scire facias was granted was dead when the Scire facias issued forth In this case it was said if two be bound joyntly in an Obligation and an Action be brought against one of them only upon this Obligation the Defendant cannot demur but may plead in Abatement of the Writ And if two be bound joyntly in an Obligation and one of them dye and the Obligee brings an Action of Debt against the other that survives he must in his Declaration set forth that the other is dead The Plaintiff in the case at the Bar perceiving the inclination of the Court to be that the Scire facias was not good Scire facias moved for his own expedition to have it quashed which was granted Lodg and Weeden Mich. 23 Car. Banc. Reg. THe Plaintiff brings his Action upon the Case against the Defendant Arest of Judgment in an action upon the Case and declares that the Defendant had killed divers infected Cattel and had thrown out the inwards or offall of those Cattel upon the Close of the Plaintiff whereby divers of the Plaintiffs Cattel were infected with the murrain and did dye thereof and shews how many and declares to his dammage so much and hath a verdict against the Defendant The Defendant moved in arrest of Iudgement and offers these exceptions 1. The Declaration is that the Plaintiffs Cattel were infected morbo mortali Anglice with the murrain whereas there is a proper Latin word to express the Murrain VVords namely Lues which ought to have been used and not to be expressed by such uncertain words as morbus mortalis is which signifies only a mortal disease and so might be any other Disease as well as that 2ly The Declaration says that the Defendant did cast interioria Anglice the inwards or off all of the Cattel whereas that is not the proper Latin word for them but Intestinâ— 3ly The Declaration doth not set forth what Cattel they were nor how many they were that the Defendant had killed and thrown their inwards or offall on the Plaintiffs Close But the Court over-ruled all the exceptions and ordered the Defendant to shew better cause why the Plaintiff should not have judgement Rawson and Bargue Trin. 23 Car. Banc. Reg. Vid. antea THe case between Rawson and Bargue upon the special Verdict found in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes Arguments whether a Free Chapel or not within the Statute of 2 Ed. 6. Statute Free Chapel wherein the Question was whether the Chapel was a free Chapel and given by the Statute of â— Ed. 6. to the King or no was moved again and argued by Maynard that it was a free Chapel given to Edward the 6th by the Statute and said the first reason was taken from the words of the Statute A second reason from the preamble of the Statute A third from the reason of the Statute And a fourth from the meaning of the Statute First the intent of the Statute was to change Chapels of superstition to pious uses and doth intend reformation and not to take away the Chapels themselves and for this cause it being for so great a good the Statute shall be generally interpreted 11 Rep. f. 17. and the words All mannour in the Statute c. do more oppose a distinction than the word all can do for they are more emphatically used 2ly Though it be parochial and with cure of Souls yet it is not exempted out of the Statute and this Statute differs from the Statute of 37 H. 8. And in case of free Chapels all are vested in the King be they superstitious or not by the Statute 3ly Vesting It is not within the exceptions in the Statute and therefore is within the Statute and he took this difference Difference that Donors of Churches are where Churches are donative and Patrons of Churches are where they are presentative 2ly The proof of the contemporary exposition of the Statute is here to be considered 6 H. 7.14 Frée Chapels are of two forts 7 Ed. 3.18.17 Ed. 3.12 Cooks Lit. 44. Division Donative A Frée Chapel may be presentative and a Parish-Chucrh donative and they are so according to the foundation of them at the first A Parish-Church cannot be a Frée-Chapel Parish-Church but a Free-Chapel may be a Parish-Church 47 E. 3.5.9 E. 3. f. 10. â—0 Ed. 3. and a Church is not a Church if it have not Baptism and Burial belonging unto it Derivation Bract. lib. â— C. â— 17 E. 3.5 E. 3. A Chapel may be within a Church and a Church within a Chapel and Capella is derived by Rhenanus the Civilian from a Cap or Covering and so is to be accompted more superstitious than Churches are because their very name shews their derivation to be superstitious Twisden argued on the contrary that it was not within the Statute of â— Ed. 6. nor given thereby to the King and that it is not a Free-Chapel neither by the words nor within the intent of the Statute 2ly If it be a Frée-Chapel yet it is presentative and within the jurisdiction of the Ordinary and so not a Free-Chapel for it hath no immunity either in regard of Iurisdiction or otherwise and cited Cooks Littleton f. 94. The Chapels of the King are all Free-Chapels because they they are exempt from all Iurisdiction of the Ordinary Register 40 41. Thre are two sorts of Chapels to wit Frée-donatives 6 H. 7. f. 1â— 2ly Presentatives Nat. Br. 35. A Chapel may be presentative by the foundation of it or by matter ex post facto 22 H. 6. f. 26. Matter ex post facto Presentation A second reason to prove it to be presentative may be from the finding of the Iury who have found it so and the calling of it otherwayes is to no purpose to alter it Institution Cure of souls Dyer 81 Next
an Executor Devastavit for the Devastavit of the first Executor Roll Iustice the Ecclesiastical-law ought to make a provision against these mischiefs Prohibition otherwise a Prohibition lyes against them Appointed to be argued a gain Tuesday sevennight VVatson and VVatson Mich. 23 Car. Banc. Reg. Hiill 22 Car. rot 1687. VVAtson brought an Action of Debt upon an Obligation against Watson Arest of Judgment in Debt upon an Obligation to stand to an award Award the Condition was to stand to the Award of two Arbitrators or of the Vmpire The Defendant pleads nullum Arbitrium The Plaintiff replies that the Vmpire made the Award The Defendant demurs and shews for cause that the Award was not good for it was incertain and not final on both parts for one party was awarded to pay so much mony to the other as in conscience should be due and no man can say what that is The Court said the Award was insensible And Bacon Iustice said it was a Vicars Award Puliston of Councel with the Plaintiff cited these Books to prove the Award good 8 Ed. 4. f. 2.20 Ed. 4. f. 1. 4.18 Ed. 4. f. 2. Pasc 4 Iac. Gosnolls case 9 H. 7. and said these cases proved that where an incertainty in an Award may be made certain there the Award is good and so it is in our Case 2ly He said that the Award here is good notwithstanding it be to pay so much mony as shall be due in Conscience Conscience for it shall be meant as is due in Law for Law and Conscience are one and the same But Roll Iustice said that the Award doth not make a finall determination of the matters in controversy betwéen the parties and so it is no Award And Bacon Iustice cited 5 Rep. That an Arbitriment ought to be certain and final and this Award wants both these properties and therefore is not good Fitchet against Wolston Mich. 23 Car. FItchet had a Iudgement against I. S. in an action of Debt Demurrer to a Plea upon a Scire facias against an Administrator Scire facias with a Fieri facias I. S. dies intestate Wolston takes out Letters of Administration of the Goods and Chattels of I. S. Fitchet takes out a Scire facias with a Fieri facias to enquire what Goods of I. S. are in the hands of the Administrator and to take them in execution upon the Iudgement Wolston the Defendant appears to the Scire facias and pleads fully administred The Plaintiff demurs to this Plea and shews for cause that in this Case he should have pleaded non Devastavit and not fully administred 2ly The plea answers not the Writ The Court answered all such processes are only to make the Executors or Administrators to answer Fully administred and therefore fully administred is a good Plea for it is a good answer and it would be dangerous to plead other waies And Roll Iustice said that this being a Scire facias with a Fieri facias according to the new manner of making the Writ it would be dangerous to plead non Devastavit and it hath been adjudged a good plea Non Devastavit to say fully administred in a Scire facias against an Executor but it is better to plead nulla bona devenerunt ad manus Nulla bona with which he could satisfie the Debt since the Scire facias brought But this being a new case it is fit to be argued Therefore let us have Books Finer and Jeffry Mich. 23 Car. Banc. Reg. FIner brings an Action upon the Case against Jeffry and declares Arrest of Iudgement in an Assumpsit that the Defendant did assume and promise unto him that if he would forbear to sue one who had assaulted him and beaten him that he the Defendant would pay the Plaintiff as much mony as he was damnified by the Assault and Battery The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause Consideration 1. That it doth not appear by the Declaration that the Plaintiff had any intention to sue the party for the Assault and Battery and so the Assumpsit in consideration that he would forbear to sue for it is no consideration 2ly He doth not set forth that he gave any notice to the Defendant Notice what dammage◠he had sustained by the Battery But the Court held that the Plaintiff néeded not to allege that he had an intent to sue the party for that the Defendant took notice of when the Assumpsit was made and for the notice what dammages the Plaintiff had sustained the request to perform the Assumpsit implies that sufficiently and so gave judgement for the Plaintiff Dersly and Dersly Mich. 23 Car. Banc. Reg. THree are endicted of Conspiracy and forgerg Arrest of Iudgement upon an Endictment of Forgery and one of them only is found guilty by the Iury. The party found guilty moved in arrest of judgement and offered these Exceptions 1. The endictment is for a joynt forgery and so one only cannot be guilty but if one be acquitted all must be acquitted 2ly The endictment is for forgery and causing to forge which are two several and different Acts. But to these the Court said nothing But took another Exception namely Conspiracy that the Conspiracy is not found upon which the Endictment is grounded according to the Statute for 2 are acquitted and so there cannot be a Conspiracy in the third person nor in any of them for one cannot conspire alone Bruer and Sowthwell Mich. 23 Car. Banc. Reg. IN this case it was moved again in arrest of Iudgement Arrest of Iudgement in an Action upon an Assumpsit Nudum pactum Consideration upon the exception formerly taken namely that the words in the Declaration discounting for four Months were uncertain and so there is no consideration for the Assumpsit and then it is but nudum pactum Roll Iustice said the Declaration is insufficient for the incertainty for it cannot be known what is meant by the word discounting Yet he said that though part of the Consideration upon which the Assumpsit is grounded be against Law yet if the other part be good and it may be divided the Assumpsit is good notwithstanding Yet we will hear Councel on both parts before the Plaintiff shall have Iudgement Colson and Bedloe Mich. 23 Car. Banc. Reg. Entred Mich. 22 Car. rot 434. COlson brought an Action upon the Case upon an Assumpsit against Bedlore Arrest of Iudgment in an action upon the Case upon an Assumsit and declares that in consideration of so much monys paid by the Plaintiff to the Defendant the Defendant did assume and promise to deliver so many loads of Hay unto him at such a place and for not performing his promise he brings his Action The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement upon these Exceptions 1. The Declaration doth not
assignment is of the debt of this man due to the Bankrupt be it more or be it lesse and hath no reference to the accompt and reckoning between them so the Assignment is good though it agree not in the sum with what is justly due and the issue is upon the Assumpsit Issue Admittance and not upon the Assignment for the Assignment is admitted by the Defendant and so not material whether it be an Assignment of the true sum or not Iudgement was given for the Plaintiff Bruer and Sowthwell Mich. 23 Car. Banc. Reg. THe Plaintiff in this Case moved again for judgement Arrest of Iudgement in an Action upon the case upon an Assumpsit notwithstanding what had been formerly spoken to arrest it for though the word discomputando in the Declaration be insensible yet there is enough in the declaration to ground the Action and that is the breach of the Assumpsit assigned to deliver the Currants bought of the Defendant and the word discounting shall not hurt it Bacon Iustice was of the same opinion But Roll Iustice said Assumpsit Contract all the bargain is here set forth upon which the Assumpsit was made and if the bargain be ill the Assumpsit is not good Hales of Councell with the Plaintiff said if part of the bargain be insensible and part not yet a good Assumpsit may be grounded upon that part which is good But Roll said the bargain here is intire and if part of it be not good it is all naught yet he said if part of a bargain be good and part void yet an Action may be brought upon it The rule was That it should be argued again on both parts Seaman against Edwards Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 920. SEaman brings an Action against Edwards Demurrer to a plea pleaded by an Executor Plea Executor and declares against him as Executor of I. S. whereas the truth was that I. S. made 3 others Executors and not the Defendant The Defendant pleads that he is not the same person named in the Will To this plea the Plaintiff demurs and for cause shews that he may be an Executor de son tort demesne though he be not named in the Will and so may be chargeable and therefore he ought to have pleaded ne unques Administred come Executor and of this opinion was the Court and ordered the Defendant to shew cause why Iudgement should not be given against him Iudgement was given for the Plaintiff Dod against Eaton Mich. 23 Car. Banc. Reg. DOd brings an Action upon the Case against Eaton for speaking these words of him thou hast the French Pox Exception to a special verdict the Defendant pleads not guilty the Iury upon this Issue find a special verdict viz. That the Defendant had said thou hast had the French Pox whereupon the Defendants Councell said that the Verdict doth not maintain the words laid in the Declaration and that the words that are found in the verdict are not actionable and so the Plaintiff can have no Iudgement and cited 15 Jac. Nutcombes Case Verdict and the words found are not issuable and so the verdict is imperfect 40 Ass 41. Kelway 6. 18 Ed. 3. fol. 19. Pasc 33 Eliz Banc. Reg. Dame Ratcliffs Case Dyer Sr Iohn Burges Case prove that the verdict is too short Roll Iustice said if the verdict be imperfect there may be a new venire facias Venire de novo and so it is against the Plaintiff for he cannot have Iudgement Panell of Councell with the Plaintiff cited Osborn and Brooks Case that the verdict was for the Plaintiff But Roll Iustice said that the Iury cannot find a thing that is not within the Declaration to maintain the Declaration for they ought to hold themselves to the issue and that they have not here done and therefore the verdict is imperfect and there must be a new venire facias to try the issue again for Iudgement cannot be given upon this verdict for they do not find that he spake not the words in the Declaration which are the most material so that the matter is not found fully enough for us to proceed to Iudgement one way or other Adjourned Poole against Coply Mich. 23. Ca. Banc. Reg. POole brings an Action of Trespasse against Coply Arrest of Iudgement in Trespasse and hath a verdict against the Defendant It was moved in arrest of Iudgement that the Declaration is incertain for the Plaintiff declares that the Defendant cepit et asportavit decem coria anglice hides and the word Coria is uncertain for it may be coria equorum or coria ovium or of any other Cattel To this Roll Iustice said Anglice that it is well enough for the Anglice had made the woord certain and it is the usual maner to plead it thus The Court ordered the Plaintiff should have his Iudgement if better matter were not shewn to the contrary Hull against Gurnet Mich. 23 Car. Banc. Reg. HUll brings an Action of false imprisonment against Gurnet Demurrer upon a special plea in false imprisonment the Defendant pleads a speciall justification that he took and imprisoned the Plaintiff by virtue of a Commission granted out of the Court of the Admiralty to examine the taking away of certain goods which were wracked by the Sea Custom To this plea the Plaintiff demurred and shewed for cause That the Defendant hath not set forth the Custom of the Admirall Court that the first processe thereof is a Capias and so it appears not whether he have proceeded right or no. Admiralty 2ly It doth not appear that the matter for which the Commission was granted is Maritime and other matter they ought not to medle withall The Rule of Court was to shew cause why Iudgement should not be given against the Defendant upon this plea. Smith against Stone Mich. 23 Car. Banc. Reg. SMith brought an Action of Trespasse against Stone pedibus ambulando Special justification in trespasse pedibus ambulando Trespass the Defendant pleads this speciall plea in justification viz. That he was carryed upon the land of the Plaintiff by force and violence of others and was not there voluntarily which is the same trepasse for which the Plaintif brings his Action The Plaintiff demurs to this plea In this case Roll Iustice said that it is the Trespasse of the party that carryed the Defendant upon the land and not the Trespasse of the Defendant as he that drives my Cattel into another mans land is the Trespassor against him and not I who am owner of the Cattell Mathew against Herle Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1554. MAthew brought an Action of trespasse against Herle for breaking his Fence and entring into his Close c. Demurrer to a plea in trespass quare clausum fregit The Defendant pleads that I. S. was seised of this land wherein the Trespasse is
Iustice You might have demurred for this doubleness for one cannot assign an error in fact and another error in Law in a Writ of Error for this is double Hales It is true but we have lost that advantage Adjourned to be argued again the next Term. Robinson against Mich. 23 Car. Banc. Reg. RObinson brought an Action of Trover and Conversion against T. B. Arrest of Judgement in Trespass and hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good for the Plaintiff amongst other things declares that the Plaintiff had found and converted to his own use unum vestigium Anglice a Footstool whereas it signifies a Footstep or a print of the foot and not a Footstool 2ly The Plaintiff declares pro decem ponderibus Aeris meaning ten pound of Brass whereas it should be aeris with a Dipthong for Aeris is of Ayr and not Brass But this exception was over-ruled by the Court because in the writing of Court-hand in which hand Declarations are written No Dipthongs in Court-hand there are no Dipthongs used and so the word Aeris might as well signifie Brass as Ayre But for the other exception judgement was stayed till the Plaintiff should move Izack against Green Mich. 23 Car. Banc. Reg. Izack brings an Action upon the Case in London against Green For a Procedendo to try an action in London for calling her Whore Green removes the cause by a Habeas corpus into this Court and hath a Supersedeas to stay the Plaintiffs procéedings in London The Plaintiffs Councel moved for a Procedendo that he might procéed in London because that in London by a special Custom there an Action doth lye for calling a woman Whore though out of London it lyes not and cited Pascal and Barbars Case 21 Iac. to prove it Bacon Iustice The custom of London is to be certifyed that we may Iudge of the reasonablenesse of it and we are not to take notice of it upon a surmise and it seems that a procedendo should not here be granted Procedendo Notice because the matter with which she is charged by the words belong to the Conisance of the Civill law to try it and not to our Law as it is 2 H. 4. Roll Iustice One may in some Cases have an Action at the Common law where he may have remedy also in the Ecclesiasticall Court for the Common law is to be preferred and by a special custom as the Case here is an Action may be maintained where it lyes not at the Common law and so was it held 8 Car. and 13 Car. And if there should not be a procedendo granted in this Case the Plaintiff would be tyed up by the habeas corpus but if it be granted the matter may be tryed and upon that if the Iudgement be erroneous a writ of Error may be brought in the Hustings in London and so all the matter may come in question to be argued Action and he said that a Charter cannot give an Action which the Common law allows not But let the matter rest as it is till we can agree Mich. 23 Car. Banc. Reg. THe Plaintiff brought his Action upon the Case Arrest of Iudgement in an action upon the case for these words thou muttron-monger theef bring home my stolen hay The Defendant makes a special justification that the Plaintiff had stollen a sheep and upon this was an issue joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement that the Declaration was not good for it only chargeth the Defendant with speaking of the words and doth not say dixit de querente and though those words be in the replication yet that makes not the Declaration good Roll Iustice The Declaration is not good for the words may be spoken of any other body as well as of the Plaintiff Bacon Iustice agrees with Roll and said that the word dixit was not in the Declaration and so it appears not whether the Defendant spoke or writ or thought the words and which is more it is not said that the words were spoken in the presence of any body and then they cannot be scandalous Roll Iustice said one cannot rejoyn upon words which are not in the Declaration nor in the plea for if the Declaration and the plea be naught Replication the replication cannot make them good The rule of Court was nil capiat per billam except cause shewn Saturday following Kinpe against Iohnson Mich 23 Car. Banc. Reg. Pasc 23 Car. rot 154. A Writ of Error was brought to reverse a Iudgement given in Hull Error upon a Judgement in Hall Continuance for these Errors assigned 1. That one of the continuances was to a certain day of the mouth where it ought to be ad proximam curiam 2. The Declaration was pro se decem bestiis Anglice Cows or Whyes which is too general for the word bestia may signifie any beast whatsoever as well as a Cow The Iudgement was reversed except cause shewn to the contrary More against Clipsam Mich. 23 Car. Banc. Reg. MOre brings a Replevin against Clipsam Argument upon a Replevin and declares of a hundred oves Matrices et vervices distrained by Clipsam Clipsam demurs to the Replevin for the incertainty of it for it appears not how many of the hundred sheep distrayned and replevied were Matrices or ewes and how many were vervices or weathers Maynard moves for Iudgement in the Replevin for the Plaintiff and held that centum oves alone was good and certain and the addition Matrices and vervices shall not make an incertainty Incertainty and the writ of Replevin doth not shew the cattell distrained particularly but the help of the party and the view of the Sheriff must concurr to shew what Cattel are to be delivered by the writ 2ly Here is a good issue argumentative although it be not so formal 3ly Issue There is no more in the issue at the Bar than in the avowry for all the Term is but one day ther is no division of time in it it is dangerous to make fractions Term. a Statute acknowledged in the Term relates to the first day of the Term. Statute Relation Hales on the other side agreed that centum oves without saying any more had been certain enough but as they are here distinguished into Matrices vervices there is no certainty at all for the Cattel in kind are demanded and ought to be delivered as they are demanded so that if the demand be incertain there can be no certain delivery 2ly The issue is ill and is not helped by the verdict for 1. the title made is not answered 2. Traverse The traverse is only to the conclusion and so is but by way of inference and is not helped after a verdict for the plea is not answered Advantage for the words
fuit et adhuc est sesitus is not good for it is not material whether he were seised at the time of the distresse or no but whether he were seised at the time of the replevin and there is a distance between the replevin and the avowry and there is a prius and a posterius in it Roll Iustice said it is made up in the retorn and there is no distinction of time and if one plead an ill plea Plea and the issue upon it be found against him he shall not take advantage of his own ill plea and if there be a negative and an affirmative though the issue be not well joyned it is helped by the Statute of Ieofailes otherwise if there be not an affirmative and a negative for then there is no issue at all joyned to be helped Bacon Iustice Oves matrices et vervices is ill for the Sheriff knowes not what retorn to make Roll accords and said you have made that which was certain to be incertain by the specification you have made and a replevin is a demand and ought to be as certain as a precipe Iudgement was given against the Plaintiff in the case at the bar because the Declaration was ill and uncertain Gilbert agaiast Stone Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1703. GIlbert brought an Action of Trespasse quare clausum fregit Demurrer upon a plea in Trespasse and taking of a gelding against Stone The Defendant pleads that he for fear of his life and wounding of twelve armed men who threatned to kill him if he did not the fact went into the house of the Plaintiff and took the gelding The Plaintiff demurred to this plea Roll Iustice This is no plea to justifie the Defendant Trespasse for I may not do a Trespasse to one for fear of threatnings of another for by this means the party injured shall have no satisfaction for he cannot have it of the party that threatned Therefore let the Plaintiff have his Iudgement Symons and Low Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 650. SYmons brings an Action upon the Case against Low for speaking these words of hir Error upon a Iudgement for words Plaint She innuendo the Plaintiff is perjured and hath a verdict and a Iudgement the Defendant brings a Writ of Error to reverse this Iudgement and assigns for Error that the plaint was entred the same day that the words were spoken which was said ought not to be because the Action should be brought after the words spoken Fractions which shall not be intended to be if it be the same day because the Law admits of no fractions of time which will be if a day be divided into several parts as it here must be for there must be one hour supposed when the words were spoken and another hour when the plaint was entred But Roll Iustice said it was well enough and ordered the Plaintiff to take her Iudgement if cause were not shewn before the end of the Term. Cheevers against Mich. 23 Car. Banc. Reg. VPon a rule of Court to shew cause why a scire facias to revive a Iudgment was not good To quash a scire facias This was offred for cause that it doth not shew before whom the Iudgement was given which was to be revived by the scire facias and consequently there appears no Iudgement to warrant the scire facias To this Roll Iustice answered that in the Common pleas the course is to set forth before whom the Iudgement is given but in this Court the course is not so But how comes the Record hither The Councell answered That there was a Iudgement in Canterbury and upon that a Writ of Error was brought in this Court and the Iudgement affirmed upon that Writ of Error Scire facias and then a Scire facias issued out here upon the Iudgement against the bail and upon this the bail moves upon the record that there is error in the scire facias Roll Iustice The Record is well enough In a scire facias it is not requisite to say Consideratum est per curiam Therefore let the scire facias stand Carver and Pierce Mich. 23 Car. Banc. Reg. THe Case between Carver and Pierce was again moved by Hales Arrest of Iudgement for words wherin it was moved formerly in arrest of Iudgement that these words Thou art a theef and hast stolen my dung are not actionable That the words are actionable for these reasons 1. The first words are actionable and the second words are accumulative and aggravate the former words and do not mitigate them 2. It may be felony to steal dung and the violence of the words do enforce it to be so intended Bacon Iustice I hold that Iudgement is to be given for the Plaintiff and so it was for these words thou art a theef and hast stolen my Corn. Roll Iustice was of the same opinion and said that the second words are not violent enough to allay the first words and are not explanatory and by way of mitigation for the words are not for thou hast but they are and thou hast stollen my dung Iudgement was given for the Plaintiff antea Eeles and Lambert Mich. 23 Car. Banc. Reg. THe Case between Eeles and Lambert was again argued by Latch for the Plaintiff and by Twisden for the Defendant Latch argued to this effect Argument upon a plea by an Executor Legacy That the Legatee hath no right in the legacy untill it be delivered unto him by the Executor 2 E. 4 fol. 13. but if a legacy be given in this manner if I dye let my Cosen have such a thing there the Legatee may take the legacy without the delivery of the Executor and a thing which cannot be devided cannot be administred Bracton l. b. 2. C. 26. 7 H. 6. Administration Devise A devise is void if there be not sufficient goods besides to satisfie the Debts of the Testator 2. The disposition of the Testator ought to agree with the law of God the law of nature and the Law of the Land and whereas it is objected that there will be an inconvenience if the legacies shall not be paid I answer the Law regards not this inconveniencie But 2ly this inconvenience is none in respect of the inconvenience will be on the other side if the legacies be paid namely the breaking of the Law of God the Law of Nature and of the Land and the inconveniences supposed are helped by the Civill Law Caution for it takes caution in paying of legacies to repay them in such accidents as are in our Case Twisden for the Defendant argued that it was a good administration of the goods and that there is no assets in the hands of the Executors and he agrees that a devise of goods in specie and a devise of mony is all one but this is not a Debt and so is not to be paid for in
Parish shall not be intended larger than a Vill if the contrary do not appear but here the contrary doth appear by the words of the Demand which are de rectoria de Imber Tymesbury infra parochia de Imber 3 4 Phillip Mary Dyer 142. and the different penning and expression of the Demand is to be observed Grant Abatement Variance for by that it appears there is a difference betwéen Imber and the Parish of Imber Grants Fitzh 87. by granting a Mannour with the appurtenances an Advowson will pass 19 E. 2. Tit. brief the Writ abated for variance betwéen the Writ and the Count. A 4th Error is to avoid the execution because of the Error in fait for the Hundred of Warmister doth extend to Sutton parva which is not named in the Writ and so the dammages are given for more than is demanded Dammages Intendment and it shall not be interpreted by Intendment and the Hundred is not demanded for the Vill relates to the Land and not to the Hundred 6 E. 3. 12. 8 Rep. 119. Bonhams Case and prays Iudgement for the Plaintiff in the Writ of Error Maynard of Councel with the Defendant desired time to argue and it was granted Postea Chambers against VVollaston Hill 23 Car. Banc. Reg. Mich. 22 Car. rot 21. CHambers brought an Action of Assault and Battery Demurrer upon the Custom of London pleaded and false imprisonment against Wollaston Wollaston pleads a special Plea of Iustification by vertue of a Custom in the City of London whereby he had authority to take and imprison him for disturbing an Election of Wardens of a Company and untill he would promise not to disturb such Elections afterwards To this Plea the Plaintiff demurs and takes these Exceptions 1. Custome The Custom pleaded is against Law for it appears not that there was any sute depending either by Bill or Endictment or otherwise and so the Custome is against Law Stat. 25 E. 3. C. 4. 25 E. 3. C. 3. and so was the Petition of Right 3 Car. And though the Customs of the City of London are confirmed by Statute-law yet illegal Customs are not confirmed 2ly Iudgement The Iudgement is against Law for by the Iudgement no remedy is given for the offence committed to the party against whom it is commited but only that the offendor shall be imprisoned untill he promise not to disturb Elections again 3ly The party committed is not within the Custom by the Defendants own shewing 4ly The Custome set forth is not prosecuted for the commitment is not for the Disturbance but because the party will not promise not to disturb again 5ly The detension of the party in prison is against Law Hales of Councel with the Defendant desired time to argue and the Court desired to have Books Holdigh against Chace Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 326. HOldigh brought an Action of Debt against Chace A special Verdict upon Non est sactum pleaded to a boad as an Executor upon an Obligation made to the Testator The Defendant pleaded non est factum and upon this Plea an Issue was joyned and a special Verdict found upon which Verdict the Case appeared to be this The Defendant Chace was bound in an obligation for the payment of a certain sum of mony unto A. B. and to I. S. joyntly I. S. dyes A. B. survives and makes Holdigh his Executor and dyes Holdigh brings an Action of Debt in his own name against Chace the Defendant and declares upon this obligation made to the Testator and to I. S. and doth not aver that the Testator did survive I. S. The Defendant pleads non est factum and the question was whether this be a good plea or no and to prove that it is no good plea Plea but that it was the deed of the Defendant the Councel for the Plaintiff cited these books 3. H. 6. 4. 35 H. 6. fol. 39. 46 E. 3. 7. 14 E. 4. fol. 4. 18 E. 2. 2. and put this case Two enfants joyntenants alien and one dies The surviver brings a dum fuit infra aetatem and counts of the Feofment of one of them and there the right was adjudged not to be severed by the Feoffement and so the writ good and in our case the matter of variance alleged goes to the writ and not the Action and it is now too late for the Defendant to take advantage of it and prayes Iudgement for the Plaintiff Roll Iustice said the issue is whether it be the Defendants deed or not and without doubt it is his deed and therefore let him shew cause why the Plaintiff should not have Iudgement Boone against Sheers Hill 23. Ba. Reg. Trin. 23 Car. rot 288. BOone brought an Action of Debt upon an obligation of 400 l. Demurrer to a Plea against Sheers and declares that the condition of the obligation was that the Defendant should make such a voyage with a Ship and pay certain monyes at his return and other conditions mentioned and for not performing the conditions he brings his Action The Defendant pleads in bar that the Ship was taken in the voyage per homines bellicosos Plea and demands Iudgement of the Action To this plea the Plaintiff demurred and shewed for cause that the Plea did not give answer to all the Declaration Demurrer Yard of Councell with the Defendant said the plea was good for the plea answers the whole condition of the Bond which was first to make the voyage with the Ship and then at his retorn to perform the other conditions and being hindred in the one he was not bound to perform the other Bacon Iustice Let us see a book to consider of Royston against Mees Hill 23 Car. Banc. Reg. ROyston makes a lease for years of certain lands to I. S. rendring rent Arrest of Iudgement in Debt the lessee makes his will and makes Mees the Defendant his Executor and dyes the Executor possesseth himself of the remainder of the term of the lands let and after the rent is behind Royston brings an Action of Debt against the Defendant and declares against him for the rent so behind in the debet and detinet and upon this an issue is joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement Declaration and shews for cause that the Declaration is not good because the Action being an Action of Debt brought against the Defendant as an Executor it ought to have been in the detinet and not in the debet and detinet But Wild of Councell with the Plaintif argued that the Declaration was good and the Action well brought in the debet and detinet and cited Brook title extinguishment 34. and the comment 526. and said it is an Action founded upon a lease by deed which was made by the Testator and cited 20 H. 6.10 H. 7. fol. 50. And that it is the constant form of charging
declared and the Defendant hath emparled and after emparlance he pleads that the lands are antient demean Plea which is a dillatory plea. Roll Iustice It is a good plea after imparlance for it goes in bar of the Action it self and not in abatement of the Writ The King and Holland Hill 23 Car. Banc. Reg. ROll Iustice said Opinion of the Court for restitution in this Court not in Chancery Iudgement Restitution that in this case formerly argued restitution ought to be given to the party for the same Iudgement shall be given here which should be given in Chancery and all the Record is here before us and they in Chancery cannot do any thing in the cause for they have nothing before them And it appears to us that the Declaration was insufficient and so we cannot give Iudgement for the Plaintiff but against him notwithstanding the inquisition found for the King Therefore let the party have restitution except cause shewed the first Friday in the next Term. Hill 23 Car. Banc. Reg. THe Court was moved to discharge a prisoner brought to the Bar For discharge of a prisoner by a habeas Corpus committed by the Committee of plundred Ministers and these exceptions were taken to the retorn 1. There is no time expressed how long the party shall stand committed Commitment so he is committed without limitation of time which is not legall 2ly He is committed by the name of Mr. Smith and his name of baptism is omitted which ought not to be Vpon these exceptions the Court held the commitment illegal and discharged the party Weekes and VVeekes Hill 23 Car. Banc. Reg. VPon the retorn of a certiorari to remove orders made by Commissioners of Sewers Against a retorn of orders of commissioners of Sewers Retorn Notice It was moved that the retorn was not good because it was not made by the partyes to whom the certiorari was directed for it was directed to the Commissioners and the retorn is made by the Clark of the Sewers But the Court said the retorn was good enough for all the retorns are so and the Clark is an officer of whom the Law takes notice of and it belongs to him to do it Pasc â—4 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour court in an Action upon the case Error to reverse a Iudgement in an inferior court in an Action upon the case Retorn Day in court and the Error assigned was that the habeas corpus was not well retorned for it is not retorned to be in omnibus servitum et executum as it ought to be and as the usual form is Maynard of Councel against the Writ of Error argued that it was well retorned notwithstanding those words were omitted because the Iury did appear full and no issues were lost and the Iury have day by the roll 3 H. 7. 14. per Hussey and 9 E. 4. 14. it is made a question but not resolved 2ly Though it be a Sisp yet it is within the Statute of 21. Iac. and is helped by it for that Statute extends to more than Writs as may appear by the Statute and the Statute of 18 Eliz. Bill Original writ recâ—ipt touching original Writs extends to faults of bills although original Writs are only named for a bill is the same in substance with a Writ so here the Writ and precept are of the same substance 3ly it is the intent of the Statute and the Statute shall be taken by equity Hill 13. Iac. in this Court in Gregory and Brookes case this question was stirred but not resolved and Hobart denyes the 5th report f. 61. to be Law and there is no proceedings properly in superiour Courts by plaint Roll Iustice The Statute extends not to point of equity in inferior Courts for their proceedings are not so regular as the proceedings in the high Courts here at Westminster but they are by short notes Bring us books and move it again Creswell against Ventryes Pasc 24 Car. Banc. Reg. CReswell brought an Action upon the case against Ventryes for speaking these words of him Arrest of Iudgment in an action upon the Case for words Thou didst and dost receive thief stollen goods witnesse a feather bed tick in thy house and the cloath which thy mans suit was made of and thou knewest they were stollen The Plaintiff hath a verdict the Defendant moves in arrest of Iudgement that the words are not actioanble for one may receive stollen goods and yet not be guilty of Felony Becon Iustice The receiving of stollen goods is not felony but the receiving and comforting of the Felon is Felony Felony The Iudgement was stayed till the other should move Thynn against Thynn Pasc 24 Car. Banc. Reg. THynn brings an Action against Thynn to reverse a Iudgement given in the Comon pleas in a writ of Dowr Error to reverse a Iudgement in Dowr Hales of Councel with the Defendant in the Writ of Dowr in answer to the exceptions formerly taken said that the summons was well enough retorned as it is because it was made upon some part of the land within the Vil Long quint. E. 4. 2 H. 4. 13. 39. E. 3. 7. 2ly It is not necessary to make the Proclamation Proclamation where the summons is for the Statute intends not to alter the course of the summons 2ly The words of the Statute are satisfied for the actual summons in one Vill is a summons in the other Vills 3ly The meaning of the Statute is satisfied and the mischef intended to be satisfied by the Statute Hob. 173. Allen and Walkers Case Demand For the 2d exception to the Demand he held it good enough for in a Writ of Dower a Demand needeth not to be so particular as in other Writs so is it in an Assise 11 E. 3. 18. 43 E. 3. 6. 3 Ed. 2. Dower 161. and the reason is because the Wife demands not the whole Land nor can have the Charters which concern the Land to enable her to make so precise a Demand as may be in other Writs And as to Harpers Case that is objected I answer it agrées not with our Case Regist f. 36. 16 E. 3. Fitzh Quar. Imp. 147. and it is certain enough because it is of a Rectory and not of Tithes in gross 3ly The demand of Tithes is surplusage and it is all one as to say the Rectory cum pertinentiis Then as to the Objection that one thing is twice demanded I answer it is not so â—â—aâ—ement Dammages but demanded as part of a thing demanded in the Writ and a Demand in a Writ of Dower shall not abate the Writ though one thing be twice demanded for dammages shall not be twice recovered 4 E. 3. f. 52. Mich. 9 Iac. in the Common-pleas agreed so by the whole Court In Bluers Case 8 Car. one thing was twice demanded and yet the Writ was not
servitium amisit The Defendant pleads not guilty and thereupon is an Issue joyned and a verdict for the Plaintiff The Defendant moves in an arrest of Iudgement and for cause shews that the Plaintiff hath not set forth how the party was his Servant whether as an Apprentise or by retainer as he ought to have done But the Court said that the Record imiplies that he was his Servant at the time when the Trespass was done and that is enough and this is the usual form of declaring in this Action in the Common-pleas and in this Court also and so many of the Councel at the Bar affirmed and therefore let the Plaintiff take his Iudgement The King against Holland Pasc 24 Car Banc. Reg. HAles offered to the Court these reasons why Iudgement should not be given here in this Case betwéen the King and Holland formerly spoken to To stay Iudgment upon a Memorandum of a Record out of the Chancery Iudgement 1. That the Record is not here in this Court but only an extract of the Record out of the Record which is in Chancery and therefore judgement cannot be given here for a judgement must be given upon the Record it self 2ly It would be inconvenient if it should be otherwise for the Chancery is Iudge of the Inquisition and so there may be judgement one way in Chancery and another way here if the Record be not removed hither And there is difference where a transcript of a Record is removed out of a Court which cannot proceed upon the Record it self and where it is a transcript of a Record Transcript upon which Record the Court may proceed as it is in our Case 39 H. 6. 6. 14 E. 4. 1. 7. 3ly It appears not to this Court how the Commission and Inquisition are executed whether well or not and therefore it cannot judge of it Maynard on the other side prayes that judgement may be given here upon the memorandum of the Record sent hither out of the Chancery for these reasons 1. Every Court ought to give judgement on the one side or other therefore if the King may have judgement here the party may also have judgement 2ly The Record is here in this Court virtually by sending of the Memorandum of it hither and that is enough to give Iudgement upon 3ly The Chancery and this Court as to the giving of judgement here are as it were one Court 24 E. 3. f. 77. 4ly There is a ground for judgement to be given here and it cannot be given elsewhere for an Award in Chancery is no Iudgement Award and so there cannot be two several Iudgements one in Chancery and another here as Hales supposeth and in Lathams case the Record was removed as it is here and Iudgement given upon it in this Court. 5ly The Chancery is not to be Iudge for the Tranverse was there and the cause removed hither and we cannot go back thither again for if we should do so we should have Iudgement in no Court If it had been upon a Demurrer in Chancery then there might have been a Iudgement there but not now the Cause is removed by Traverse and a Patent shall not be corrected by the Enrolment but the Enrollment by the Patent under Seal Hales on the other side said That it is the Record of the plea that is transmitted out of the Chancery hither but not the Record of the Inquisition or Commission upon which it is found and how then can there be any Iudgement Roll Iustice said That the Amoveas manum is but a consequence of the judgement Amoveas manum and not the Iudgement it self and we may give Iudgement without the Inquisition against the King And the Record is transmitted hither to determine whether the King or the party hath right and the Chancery cannot intermeddle for by this means the Courts will clash which would be inconvenient Bacon Iustice spoke to the same effect Roll Iustice added this If an Office be found to entitle the King in the Chancery and it be transmitted hither and it appears to this Court that the office is not good shall not we give Iudgement against the King certainly we shall But the Court would advise and desired to hear the Kings Councel what they could say for the King Pasc 24 Car. Banc. Reg. AN Action of Trespass was brought for taking away divers parcels of Houshold stuff and upon non Culp pleaded the Plaintiff had a verdict Arrest of Iudgement in Trespass for taking away Goods The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good because divers words in it were insensible as 1. The Plaintiff declares for taking away unum Lenat Anglice a Mat whereas Lenat is no word in any Language to signifie any thing and therefore the Anglice cannot help it To this the Court answered That it is all one as if it were left out of the Declaration because it signifies nothing in it Dammages and so there is no dammages given for that thing which it should signifie 2ly He declares for taking away tria suspendia Anglice Pot-hooks or Hakes But the Court held this good enough 3ly He declares for taking away unum Adustum ferreum which are two Adjectives and signifie nothing To this the Court said if they signifie nothing then no dammages are given for it and therefore let the Plaintiff take his Iudgement Pasc 24 Car. Banc. Reg. VPon reading of the retorn of Collonel Tichborne Leiutenant of the Tower of London upon an habeas corpus directed to him For an alias habeas corpus with pain on the behalf of John Lilborn committed by order of both houses of Parliament for his contempt to them Cook of Councell with the Prisoner moved for an Alias habeas corpus with a pain because the Lieutenant had only retorned the Writ Alia but not brought the body of the Prisoner Bacon Iustice If there be sufficient matter expressed in the retorn to detein the Prisoner to what purpose should we grant an Alias Retorn therefore if the retorn be insufficient move your matter against it But Roll Iustice said the Lieutenant ought to make his retorn either against the jurisdiction of this Court or else he must bring the body of the Prisoner hither and it is in our power to set a fine upon him Fine for making an insufficient retorn Therefore the Court ordered that he should amend his retorn or else they would grant an Alias with a pain Hocker against Lamb. 24 Car. Banc. Reg. Trin. 23 ar rot 1592. HOcker brought a Writ of Error in this Court against Lamb to reverse a Iudgement given against him Error to reverse a Iudgment for error in the venire Licu câ—nus Hundred VVard in the Court at Colchester in Essex and assigns for Error 1. That the venire is awarded larger than the Declaration To this Roll Iustice said the Ward within Colchester
notice of the Almanack and the feast dayes there set down or no. It was adjourned to be argued again the next Term. Thynn against Thynn Pasc 24 Car. Banc. Reg. IN this Case wherein exceptions were formerly taken to the Writ of Error Opinion of the Court concerning a retorn and argued Bacon Iustice said he had read over the book and doubted whether many of the Errors formerly assigned are not out of doreâ— because the certiorari is not well retorned before us for the certiorari is directed to the Recorder and it is retorned by the Deputy Recorder in his own name Retorn Roll Iustice doubted also for he said all the old presidents were against this retorn But if the Writ be directed to a Recorder who is custosbrevium or to a Recorder and his Deputy then the retorn as it is will be good TWisden of Councel with the Plaintiff in the Writ of Error in the Wiltshire cause took these exceptions The first exception take was Error and exceptions offered to a Iudgement in Dowr that he demand of Dowr is larger than the originall Writ for that the demand is of the Parish of Timesbury and the Writ is of the Vill of Timesbury which is not so large by intendment as a parish because there may be divers Vills in one parish and he said that in some case a Writ shall restrain a demand in other cases it shall not namely where they cannot stand together and so is it here 21 E. 4. f. 24. 3 E. 3. f. 56. Demand A second exception was that the nature of the tithes demanded are not set forth although they be not in gross but appendant as they ought to be Dowr and a feme was not dowable at all of tithes before the Statute of 32 H. 8. and a feme is dowable of Common appendant but not of Common in gross A third exception was that Dowr is recovered of a thing not dowable viz. of a quarry of stones for if she should be dowable of a quarry of stones this would be to the destruction of the inheritance and indeed it is impossible for a quarry of stones cannot be divided by metes and bounds which must be if she should be endowed of it And also if the mine and quarry should be divided the Tenant of the Land would be prejudiced and that a quarry cannot be divided see Cooks Lit. 164. and so was it adjudged 2 Iac. upon a reference to the Iudges Next there is also Error in fact for the Hundred of Warminster extends into the Hundred of Sutton parva Error in fact and so if she be endowed of the Hundred of Warminster she will be endowed of the third part of two Hundreds which is more than she demands by her Writ of Dowr Maynard of Councell with the Defendant in the Writ of Error said as to the summons he held there is a good summons and cited Hob. 137 Dalt f. 86. And there may be divers parishes in one Vill as well as divers Vills in one parish And to the exception that the demand of the Dowr in the Writ is generall whereas it ought to be a special demand he answered the demand in Dowr differs from other demands and is more favoured in Law for as Dowr it self is favoured in Law so are the proceedings in Law to recover it 6 E. 3. 45. 16. E. 2. 7. 8 H. 3. 11 Ed. 3. 85. 25 E. 3. breâ— 412. Fitz. Dowr 8 E. 3. Sect. 434. Reg. 39. And as to the surplusage in the demand this shall not abate the Writ 4 E. 3. 52. Fitz. brei 14. Abatement And that the parish should extend out of the Vill is a forein intendment and shall not be so taken against an Averment and when a Vill and a parish are named by one name one of them shall not be intended larger than the other if the contrary be not shewn Long quint. Ed. 4. f. 20. And he argued that a feme is dowable of a quarry and that it may be divided by metes and bounds for it may be divided by the profits although it cannot be divided by the quantity of the thing Roll Iustice said By no manner of pleading can one abate a Writ after Iudgement and how should it be so here And 2 Cases were cited by the Councell that bis petita shall not abate a Writ Mich. 9. Iac. Bolstrod and Brooks case and Easton and Styles case in a Writ of Dowr Pasc 24 Car. Banc. Reg. THe Plaintiff brought an Action of Trespasse quare vi et armis for rescuing of a Prisoner out of his possession Arrest of Iudgement in an action of Trespass vi et armis for rescous and hath a verdict against the Defendant The Defendant moves in arrest of Iudgement for that the Plaintiff ought to have brought his Action of Trespass upon the Case and not an Action of Trespass quare vi armis But Roll Iustice answered that he might have an Action upon the Case or a Trespass vi armis at his election Election of Action and therefore the exception is null Another exception was taken that there was 4 years between the time of the Trespass done and the time of bringing the Action Roll Iustice answered you should have pleaded this matter if you would have had advantage by it but it is to no purpose to urge it Another exception was taken that the Declaration says that he took him in his possession out of his possession But the Court over-ruled this also and ordered the Defendant to shew better matter why Iudgement should not be given against him King against Pasc 24 Car. Banc. Reg. KIng brought an Action of the Case in London against the Defendant For a Procedendo in an action upon the Case removed our of London Custome for speaking these words of her Thou art a Whore and Cantrels Whore and hast been so this forty years The Defendant removed the Cause into this Court by a Certiorari the Plaintiff moved for a Procedendo But nothing was done in it for the Court was divided for Bacon Iustice held the words not actionable But Roll Iustice held that by the Custome of London they were though not at the Common-law Aylett against Stellam Pasc 24 Car. Banc. Reg. TWisden upon a rule of Court to shew cause why there should not be a new Tryal Cause why no new Tryal said that two things were alleged on the other side that there ought to be a new Tryal 1. That two of the Iurors were of kin to the Plaintiff And 2ly That there was notice given to the Defendant of a second Venire facias To the first of which he answered that the Iurors were not of kin and produced an Affidavit for proof Roll Iustice interrupted him and said it is not now material whether they be of kin or no for the Defendant should have taken advantage of that upon his challenge at the Tryal
Challenge Advantage And for the second it matters not whether he gave notice of the second Venire or no for the rules of the Court do not enjoyn him to give notice Maynard of Councel with the Defendant urged that two of the Iurors were of kin and produceth an Affidavit to prove it and said that the Defendant was also surprised for want of notice of the second Venire Roll Iustice said the second Venire ought to be entred here and if it were not entred how can the Defendant know whether it be altered or no Yet here is no breach of the rules of the Court and so the proceedings are fair for the Venire may be entred Entry or it may not be entred and if it be not entred the party may go to the Attorny and procure a Copy of it before the Tryal and though the Venire be not entred till after the Assises it is well enough Therefore let the Plaintiff take his Iudgement Thyn against Thyn Pasc 24 Car. Banc. Reg. LAtch of Councel with the Plaintiff in the Writ of Error argued again Argument in Dower Demand and held 1. That the nature of the Tithes demanded in the Writ of Dower ought to have been expressed for the demand may peradventure be of such Tithes whereof the Feme is not dowable 2ly Where the thing it self is demanded of which the Sheriff is to give possession there the Demand of it ought to be certain for as it is in a Demand in an Ejectione firmae or an Assise so ought it to be in a Demand in a Writ of Dower Dyer f. 116. 258. 11 Rep. Harpers Case Dyer 83. the Sergeants Case 44 B. 3.5 Cooks Entries tit Dower plac 2d and though the Demand be of all Tithes yet they ought to be specified as it is in Harpers Case and so it is of Tithes in gross 11 Rep. Savills Case Mich. 12 Iac. Bales and Hamond in this Court. And as to the Retorn a Chapel is demanded Retorn and Iudgement given for it and yet the Retorn doth not mention it and it is not enough to comprise it in other words and it is doubtfull whether a Chapel be a Tenement or no for it is not a temporal Inheritance as an Advowson is Tenement VVrit Dyer 83. In some Case the Writ may be general and the Count special but that is where there is not a special form of Writ 2ly a Chapel is not conveyed in Fines and Recoveries or Entries by the name of a Tenement nor in any judicial proceedings but Tenementa in a Grant may contain a Chapel 3ly The particular enumeration of other things and the â—mitting of the Chapel makes it ill and so would it be in a Grant by such in enumeration Dyer 161. The Case of the Hamlets 36 Eliz. Ewer Heydon 21 22 Eliz. the Bishop of Norwitches case 8 Rep. 18. Doctor Bonhams Case 12 Ed. 1. Grants 87. Other exceptions he took to the Iudgement and execution First to the Iudgement Hundred that a Hundred cannot be delivered by metes and bounds for a Hundred is but a Iurisdiction and is entire 2ly The execution is ill for a Court of Frank pledge cannot be divided by metes and bounds Cooks Instit 32. and Dower is assignable either by metes and bounds or in common or in special manner lib. Intrat 18. He took also Exceptions to the second Iudgement Dammages that dammages of the value of the Tithes are not to be given in Dower next the Inquisition doth not find that the Husband dyed seised of the Tithes and then there can be no Iudgement given for them And the dying seised of the Rectory is no dying seised of the Tithes nor is the dying seised of the Chapel a dying seised of the Tithes appurtenant to it for the Chapel is but the Chapel-House or Dilatory 11 Rep. Harpers Case Then for the Error in fact the demand is of the Manner of Lullington and this extends out of Lullington and it is not repugnant to the Record to assign this Error in fact and it could not have been pleaded in abatement of the Writ 8 E. 3. 68. A Nuper obiit resembles a Writ of Dower Nuper oblit 7 E. 3. 28. 7 E. 3. pl. 5.12 Ass 20. 26 E. 3. 72. 29 Ass 55. 10 E. 4 11. 9 E. 4. 3. 9 E. 4. 17. And so prayed the Iudgement might be reversed It was adjourned to be argued again the next Term. Hill against Bird. Pasc 24 Car. Banc. Reg. VPon a rule of Court to shew cause why a Prohibition should not be granted to the Prerogative Cause why no Prohibition to the Prerogative Court Latch stated the Case to be this A man dyed intestate the Daughter of the Brother of the Intestate her Father being dead procures Letters of Administration and a Son of the Sister of the Intestate sues in the Prerogative to revoke the administration or to have distribution of the Goods the Administrator prays a Prohibition and hereupon he prays that either no Prohibition at all is to be granted or else it must be special Prohibition Roll Iustice The Daugther of the Brother and the Brother of the Sister of the Intestate are in equal degree of kindred and the Ordinary may grant administration to which he pleaseth Administration Latch urged that the administration was not yet setled for it was granted upon Condition and if the Administrator will not bring in an inventory the Ordinary may alter the administration Hales on the other side prays there may be a general Prohibition cuiliber c. Roll Iustice The Prohibition must be against some certain person but if divers have appeared to sue there a Prohibition shall be against all of them and the Iurisdiction of the Court cannot be enlarged by the agreement of the parties Revocation Hob. Tucker and Boâ—es Case And an administration cannot be revoked for the not bringing in of the Inventory and Accompt by the Admnistrator The libel was afterwards read which was to have distribution of the Goods or else to reverse the Letters of admimiâ—â—â—tration and upon this the Court granted to a Prohibition if cause be not shewn upon notice to the contrary as to the Distribution but not generally Leving against Gamble Pasc 24 Car. Banc. Reg. IN arrest of Iudgement it was urged Arrest of Iudgement in Trespass that the Declaration was incertain for the Plaintiff had declared pro quinque pecias stanni anglice Pewter-dishes whereas pecias stanni did not fignifie Pewter-dishes for it might be Spoons Pots or any other sort of Pewter as well as Dishes But the Councel on the other side said Anglice void it was well enough and prayed for Iudgement Roll Iustice said the Anglice shall be void and then the Latin is good for it is five pieces of Pewter and it matters not what pieces they be For it is ad valentiam which makes the value certain
not in contempt to the Court. Roll Iustice said Then is the Execution now well executd Execution and the Sherif is in no fault Maynard of Councel with the Plaintif in the writ of Error moved that the Execution was awarded improvide and therefore the Court may restore the party to his goods taken in Execution although the Sherif be not in fault Roll Iustice The party ought to take notice of a recipitur upon the Record if it be entred and if the party take out Execution after the writ of Error is allowed he is in contempt to the Court else not and the Attorny is not bound to view the Record whether a writ of Error be brought but may take out Execution if there be not a Supersedeas Supersedeas or notice given to the party Therefore there is no help here for the proceedings have been according to the course of the Court for by the delivery of the writ of Error to the Officer of the Court the hands of the Court are closed Yet let us see the President that Wood ward hath to shew and let the Secondary examine it again Trin. 24 Car. Banc. Reg. AN Action of accompt was brought touching the fraight of a Ship For a scire facias against manucaptors and a Iudgement that the Defendant shall accompt and Auditors assigned and Manucaptors found to appear before the Auditors the Court was moved for a scire facias against the Manucaptors because that the Defendant did not appear at the day before the Auditors assigned and secondly it was moved that the Court would assigne a day peremptory Certificaâ—e Auditors for the party to appear before the Auditors But Roll Iustice said a day cannot be assigned untill a certificate be made to us from the Auditors for they are trusted and are Iudges of the cause and have power to excuse the non-appearance of the party at the day if they see cause and to give longer day or shorter for the party to appear as they think good end therefore till they certifie neither can you have a day assigned Scire facias nor a scire facias against the Manucaptors Clementson against Montford Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1493. A Writ of Error was brought to reverse a Iudgement in an Action upon the Case brought by an Administrator in the Court at Esham Error to reverse a Iudgement in an action upon the case The Errors assigned were 1. The Plaintiff doth not declare that the administration was granted unto him per loci illius ordinarium 2ly The Plaintiff saith in his Declaration producit litteras Administratorias intestati whereas it should be ordinarii and not intestati 3ly The Court cannot by its privilege being an inferiour Court Capias and that but newly erected award a Capias upon entring the plaint as it is here done 4ly The Court began first to be a Court but 9 Iac. and yet it is said to be held per usum et consuetudinem curiae Twisden to the 1. exception said that it is helped by the verdict Roll Iustice asked how doth it appear that Esham is within the Diocess of the Bishop that granted the Letters of Administration for if it be not the Letters are not well granted And said that in a Declaration it is not necessary to say that Letters of Administration are granted per loci illius ordinarium aut cui pertinuit Administration Declaration Plea although they ought to be so pleaded in a plea in Bar. To the second exception Twisden answered that the words mentioned are not necessary and the Declaration would be good enough without them and therefore they shall not hurt it though they he mistaken and if it should be otherwise yet they are helped by the verdict and to the first exception he said that the words secundum usum et consuetudinem shall be intended to be meant according to the Law and not according to ancient usage as is urged by the Councell on the other side The rule was that Iudgement be affirmed except better matter should be shewn Monday next Read against Palmer Trin. 24 Car. Banc. Reg. REad brings an Action upon the Case upon an Assumpsit to stand to an award against Palmer Arrest of Iudgement in an action upon the case and hath a verdict The Defendant moves in arrest of Iudgement and shews that there was an amendment in the consideration and the promise after the issue joyned Twisden answered it is not material though it be so for the matter of the Assumpsit is implyed and the words altered are idle and cited 37 â—l Heydons Case for it is de et super praemissis Amercement which implyes all the matter Roll Iustice said that the words de et super praemissis goe not to the time but to the matter submitted and said that the words postea scilicet eodem die Contract in law special contract upon a contract in Law shall be intended the time of the contract but here is a speciall contract and collateral and it ought to be otherwise intended and desired to see a book Freeborn against Purchase Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1575. FReeborn brought an Action upon the Case against Purchase Demurrer to a Declaration in an action upon the case and declares that the Defendant in consideration that the Plaintiff had paid unto him such a sum of money did assume and promise to joy in the surrender of certain Copyhold Lands and that for not performing this promise he brings his Action The Defendant demurs upon the Declaration Request and shews that the Plaintiff doth not allege that he made any request to the Defendant to joyn in the surrender which he ought to do for it was not a single Act to be done by the Defendant alone but he was to joyn in the Act with another Roll Iustice said the promise is that the Defendant shall joyn in the surrender Breach and he doth not say that he did request him to joyn which he should have done And besides the breach is not well assigned for you have assigned a particular way how he should surrender namely into the hands of 2 Tenants of the mannour whereas he did assume only to joyn in a surrender which may be in Court or into the hands of the Lord as well as into the hands of two Tenants so is Syms and Walkers Case 9 Car. Also the Plaintiff ought to have shewed that there is such a particular custom in the manour Notice that a Copyhold Tenant may surrender into the hands of two Tenants of the manour or else such a Custom cannot be taken notice of Therefore let a nil capiat per billam be entred against the Plaintiff Wright against Martin Trin. 24 Car. Banc. Reg. THe Court was moved to change the venue in an Action for an escape To change a venue in an action for an
escape Local upon an affidavit that the escape touching which the Action was brought was in another County and not in the County where the Action was brought But Roll Iustice said that an escape in one place is an escape all England over and is not local therefore the venue is not to be tyed to one place more than another Yet let the other party shew cause why the venue should not be altred Trin. 24 Car. Banc. Reg. VPon a rule to shew cause why Iudgement should not be stayed in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes Exceptions answered offered in arrest of Iudgement in an action upon the Statute of 2 Ed. 6. for not setting forth of tithes Recital these exceptions for merly taken were answered 1. It was said the Statute was misrecited for the day when the Parliament began wherein the Statute was made is mistaken but to this it is answered that the Declaration doth not say per Statutum in Parliamento inchoat tali die but in Parliament tento tali die and the Parliament was held by prorogation the day that it is mentioned though it were not then first begun and so that is well enough To the second exception that the Declaration doth say that the Plaintiff was primo die occupator ac postea eodem die c. So that it appears not Proprietor that he was proprietor and so the Action may not lye for he may be occupator wrongfully and so not proprietor It is answered that the Declaration is that he was tali die possessionatus et ab eodem die occupavit and this shall be judged of a rightfull estate and it is said that he is rector ecclesiae and so he shall be intended proprietor of the Tithes if the contrary be not shewn The rule was to shew better cause Friday following else Judgement for the Plaintiff Sowthcott against Sowthcott Trin. 24 Car. Banc. Reg IN this Case formerly moved Exceptions answered taken to arrest judgement in an action for tithes Tithes and Iudgement stayed til the Plaintiff should move Maynard for the Plaintiff moved for Iudgement and to the exception taken on the other side that the word grain used in the Declaration is too general and may extend to grain not titheable viz. to rape-seed and cole-seed c. as well as to titheable and so the Declaration is incertain De said it is well enough for it is said grain growing in such a field by name which makes it certain 2 rep lib. Int. 176. 2d Coment f. 161. b. and for the word grain in comon understanding it is meant for corn and not for seeds though in a large exception it may extend to seeds also Hales on the otherside said that the word grain is incertain and signifies more than corn and also the word Garbae is too generall for it may extend to more than sheafs of Corn for bundles of any thing bound up may be said to be Garbae as well as Corn bound in sheafs and may extend also to grain not titheable Roll Iustice held the words in the Declaration Seminavit cum grano proper enough Comon intent and that by common construction it shall be meant with Corn and not with seeds 10 Car. Goldsmiths Case Hill rot 8. And for Garbae it is also well enough for it shall be taken according to common construction which is to signifie corn bound up and shall not be taken in the large extent of the word for bundles of any thing else And the Iury hath taken notice of it for they have found debet which had they not they could not have found the verdict so The rule was for the Plaintiff to take his Iudgement if cause were not shewn Friday following The King and Sr. Henry Spiller Trin. 24 Car. â—anc Reg. THe Court was moved for the quashing of divers Endictments wherein Sr. Henry Spiller was endicted for not repairing a bridge For quashing divers Endictments for â—or repairing of a Bridge the exception to the first was that it doth not set forth in what County the bridge lyes and for that exception it was quashed Another Endictment was for not repairing of Mays Bridge and it doth not shew that the bridge is in the High-way But to this Roll Iustice said that the Endictment doth say it is a Common bridge and that is enough and it is needlesse to say it is in the Highway Another exception was taken to this Endictment that it did not shew whether the bridge were a cart bridge or a horse bridge or a foot bridge or what other passage was over it and for that exception that Endictment was quashed To a third Endictment for not repairing the same bridge this exception was taken viz. It sayes that Sr. Henry Spillar was bound to repair the bridge ratione manerii which cannot be good but it should be rationae tenurae manerii Roll Iustice said It ought to shew that he is owner of the manour and although it do expresse that he is bound to repair it ratione manerii sui that is but implication that he is to repair it Implication and makes it not appear that he is possessed of the manor and upon this exception was this Endictment quashed Addition To a fourth Endictment for not repairing the same bridge this exception was taken that there is no addition of the County where Sr. Henry Spillar dwelt as the Statute directs and for this it was also quashed Yet afterwards because there was no certificate that the bridge was repaired the Court would quash none of them but said let him plead to them The Defendants Councel moved that he might plead but to two of them and that processe might be spared to the rest Roll Iustice Appear to all and plead and proceed in two of them and processe shall be stayed to the rest Burrel and Lancaster Trin. 24 Car. Banc. Reg. BUrrell brought an Action of Trespasse quare clausum fregit against Lancaster Arrest of Iudgement in Trespasse quare clausum fregit Variance Nomen aggregativum and had a verdict the Defendant moved in arrest of Iudgement and for cause shews that there is a variance between the writ and the Declaration for the writ is quare clausum fregit in the singular number and the Plaintiff declares of divers Closes But Roll Iustice said That it was well enough for the word clausum is nomen aggregativum and may contain many Closes and so may well enough agree with the Declaration And therefore let the Plhintiff take his Iudgement Glide against Dudeney Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 426. GLide brings an ejectione firmae against Dudeney in the Common pleas Error upon a Iudgement in an ejectione firmae in the Comon plea and hath a Iudgement by default against the Defendant whereupon a writ of enquiry issues out to enquire of the Damages and before the retorn
thereof the Defendant brings a writ of Error the question was whether the writ of Error were well brought in regard that the course of the Common pleas is not to make up the Iudgment untill the writ of enquiry be retorned Roll Iustice said that a writ of Error may be brought before the writ of enquiry be retorned in an ejectione firmae for in that Action the Iudgement is compleat at the Common Law before it be retorned Iudgement Error for the Iudgement is but to gain possession and so is it in a writ of Dower but in an Action of Trespasse where damages only are to be recovered there the Iudgement is not perfect till the writ of enquiry is retorned nor can be made up before as in this case it may but in regard that here is no compleat Iudgement entred for there is no capias which ought to be in all Actions quare vi et armis that the King may have his fine which else he cannot have if the party do not procéed in his Writ of Enquiry Error Execution the Writ of Error is brought too soon and you may proceed to execution in the Common-pleas for the compleat Record is not here Therefore advise what to do in the Common-pleas for it is mischievous qua cunque via Norton against Trin. 24 Car. Banc. Reg. NOrton brought an Action of Assault and Battery against the Defendant Arrest of Iudgement in Assault and Battery Mis-sworn and had a verdict against him The Defendant moved in arrest of Iudgement that in the Venire facias one of the Iurors was retorned by the name of Edmund and it appears by the Postea that he was sworn by the name of Edward which cannot be intended to be the same person Roll Iâ—stice said Amendment if the Clerk of the Assises in returning of the Postea have mistaken the name it may be amended here in Court by his notes by which he made the Postea and therefore let him be examined here whether it be a mistake or no. Toby against Angel Trin. 24 Car. Banc Reg. THe Court was moved for a reference in this Cause to the Secondary because the sute was commenced upon two Counter-bonds For a reference which are both cancelled Roll Iustice answered then why should it be referred for you may plead non damnificatus if the truth of the matter be so but the party may peradventure be damnified notwithstanding the Bonds be cancelled and may have good cause of Action Langly against Wybord Trin. 24 Car. Banc. Reg. LAngly brought an Action of Debt upon an Obligation to stand to an Award against Wybord Demurrer to a Replication in Debt upon an Obligation to stand to an Award Award The Defendant pleads nullum Arbitrium The Plaintiff replies that the Arbitrators did make an Award and sets it forth in haec verba The Defendant demurs and shews for cause that the Award is not well set forth for he doth not shew that the Award was delivered up by the Arbitrators according to the submission Roll Iustice answered it was well enough though it be not A second cause was that it is not said touching what sutes the Award was made Roll Justice answered the Award is said to be de praemissis and that is good enough 3ly The Award is that all sutes shall cease Roll Iustice This is well enough 4ly The Arbitrators have exceeded their submission The rule was to bring the Roll into Court and till then the former rule to stand Afterwards the Award was judged good and the Plaintiff had his Iudgement Trin. 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an Inferiour Court Error to reverse a judgement in an Inferiour Court and the Error assigned was That the plaint was entred before such an one Maioâ— and the sute was continued before another Maior and it is not shewn that the first Maior was removed and that the other Maior was lawfully elected and sworn Roll Iustice said that the Continuances in Inferiour Courts ought to shew the manner of the Continuances Continuance and it ought not to be expressed generally And it is not said tunc majori Tryal which would have made it more incertain I doubt the Venire facias is discontinued and then there is no Tryal therefore it is good to advise Pragnell against Goff 24 Car. Banc. Reg. GOff brings an Action upon an Assumpsit against Pragnell Error upon a Iudgement in an Action upon an Assumpsit and hath a verdict and a Iudgement against him The Defendant brings a Writ of Error to reverse this Iudgement The Case was this Pragnell did assume and promise unto Goff that in consideration that Goff would mary the Daughter of Pragnell that he would be bound to give over his Shop unto him and not use his Trade in Basingstoke and would lend unto him fifty pound and for not performing this promise he had his Iudgement The Error assigned was that there is a breach â—aid of all the promise Assumpsit which consists of divers parts and one part of it is against Law namely the Promise to be bound not to use his Trade and yet dammages are given entirely for all which is not good Wild on Councel on the other side said that in 2 H. 5. urged is no Iudgement given and in our Case it is not that he shall be bound not to use his Trade generally but only in the Town of Basingstoke and he may use it any where else and therefore it is not against Law Roll Iustice If the words be general that he shall not use his Trade in such a place without any consideration this is ill but it is otherwise if there be a consideration for a man may sell his Liberty Privilege for a Consideration and it shall bind him The rule was to shew cause Saturday next why Iudgement should not be affirmed This was afterwards moved objected Dammages that part of the Assumpsit was to turn over the Defendants Trade and dammages given for that which is impossible Roll Iustice said if dammages entire be given for some things with others wherof some are impossible the dammages shall be deemed to be given for those that are possible and void to the rest The Iudgement was affirmed Peeling against Ken. Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 89. PEeling brought an Action of Debt upon an Obligation to stand to an Award against Ken. The Defendant pleads Nullum Arbitrium Demurrer to a Replication in Debt upon on obligation to stand to an award The Plaintiff replies and sets forth the Award in haee verba and assigns a breach The Defendant demurs to the Replication and the Plaintiff joyns in the Demurrer The causes assigned for the Demurer were 1. To the Award it self Award which is that whereas it appears that there was six pound and a shilling due by the Plaintiff
deliver certain commodities ad ratum instead of secundum ratum But to this Roll Iustice said that ad ratum secundum ratum are all one in signification 2ly There is no time set forth when the promise was made for it is set down in figures which is all one as if it were not set down at all Roll Iustice The Record is not so though the transcript be Amendment therefore that may be amended 3ly There are two several promises and they are both alleged Roll Iustice It s well enough 4ly The Venire is not retorned for it is not retorned to be in omnibus servitum executum Retorn To this the Councel on the other side answered it appears that there is a panell retorned and therefore it is well enough though those words be omitted Roll Iustice The panel is not retorned nor annexed according the Statute and therefore it is no return in Law Therefore let the Iudgement be reversed for this cause except cause shewed to the contrary VVatson against Scotson Trin. 24 Car. Banc. Reg. VPon a sute between Scotson and Watson in the Court of Admiralty To discontinue an action and to discharge the Bayl. Discharge Scotson entred into an Obligation to Watson Watson brings an Action of Debt upon this Obligation in this Court against Scotson Scotson appears and puts in bayl to the Action and after moves the Court that Watson may be ordered to procéed in the Admiralty upon this Obligation in regard the Bond was given there and that the bayl here may be discharged Roll Iustice I will not release the bayl for it is filed and it is a Record here Bayl. and it is not unduly done Aylet against Oates Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 397. A Iudgement was given in the Common-pleas in an Action of Assault and Battery against three Error to reverse a judgment in Assault and Battery The Defendants brings a Writ of Error to reverse this Iudgement and assigned for Error that the Action was brought against three and that they all appeared by Attorny and pleaded whereas one of them was an Infant within age and ought to have pleaded by his Guardian and that Iudgement was entirely given against them all which must be void against the Infant and so it being intire is void also to the two other Defendants Wild of Councel with the Defendant in the Writ of Error argued that the Iudgement may be reversed in part Iudgement viz as to the Infant and yet may stand good against the other Defendants for the Action might have béen brought against them severally as well as joyntly 35 H. 6. f. 21. 5 Ed. 4. f. 7. Roll Iustice said it is ruled contrary Where a Iudgment is reversed for an error in Law against some of the Defendants it is reversed against all of them but it seems to be otherwise where it is reversed for an Error in Fact 35 H. 6. 2. Hales on the other side moved to reverse the Iudgement wholly Discontinuance for it is an entire Iudgement and cannot be reversed in part only for all the Defendants are equally concerned in it and a discontinuance against one of them reverses the Iudgement against all of them and he denyed the Book of 5 Ed. 4. Error and cited 29 Ed. 3. f. 39. Roll Iustice said if it be a Iudgement at the Common-law or a Iudgement where costs are given by the Statute if it be reversed as to one it is reversed to all And here is an entire judgement given by the Common-law and it cannot be helped But bring me the Book Postea Crook against Samm Trin. 24 Car. Banc. Reg. Mich. 23 car rot 311. SAmm had a Iudgement in the Common-pleas upon a Nihil dicit in an Ejectione firmae Error to reverse a Iudgment in an Eject firmae The Defendant brought a Writ of Error to reverse the Iudgement and assigned the general Error The Plaintiff in the Iudgement prayed it might be affirmed Roll Justice demanded of him if it be a Iudgement upon a Nihil dicit how can it be of this Term Therefore give notice and move again Iudgement But the Iudgement is ideo consideratum est quod recuperet and there wants defendens capiatur and therefore the Iudgement is erroneous and how can it then be affirmed 3 Car. in the Exchequer Mich. 5 Iac. rot 269. Allens Case 17 Car. Stewart and Stewart in the C. B. Error and though it be a Iudgement by default yet it is a Iudgement but being erroneous it cannot be affirmed Therefore advise what you will do Hobart against Boraston Trin. 24 Car. Banc. Reg. IN an Action of Debt brought upon the Statute of 2 Ed. 6. for not setting forth of Tithes Arrest of Iudgement in Debt upon the Stat. of 2 Ed. 6. for not setting forth of Tithes Copy after a verdict It was moved in arrest of Iudgement that the Statute was not well recited for the Parliament began in the first year of Ed. 6. and was prorogued and the Act was made the 26th of November and not the fourth as it is set forth to be For proof of this a Copy of the Parliament-roll and an Affidavit to prove the Copy to be true were read in the Court Hales of Councel on the other side said that the Copy was taken out of the Parliament-Iournal-book only and not out of the Writ for prorogation of the Parliament as it ought to be Roll Iustice said to the Councel on the other side Advise you how to answer this and let the Iudgement stay in the mean time antea Pimley against Robinson Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 476. RObinson brought an Action of Trespass against Pimpley Error to reverse a Iudgement in Trespass vi aâ—mis in York for entring into his Close and taking away a Mare and a Bridle in the County of York and had a verdict and a Iudgement against the Defendant The Defendant brings a Writ of Error to reverse this Iudgement and assigns for Error that the Court was said to be held on Saturday the ninth of November whereas the Saturday on which the Court was held was not the 9th day of November Error but the 7th and so there is no Court alleged to be held for on the 9th day there was none held 1 H. 7. 11 E. 4. 10. Roll Iustice It should seem they did not look well into the Almanack if they had this mistake had not been Let the Iudgement be reversed except cause be shewn Monday next Mogg against Shute Trin. 24 Car. Banc. Reg. Trin. 23 Car. rot 2097 IVdgement was given in an Action of Trespass Error to reverse a judgement in Trespass and a Writ of Error thereupon brought to reverse this Iudgement and the Error assigned was that the Venire was returned by one that was not Sheriff at the time of the return To this it was
or else let the Plaintif take his judgement Trin. 24 Car. Banc. Reg. A Copyholder being sued in this Court for certain lands moved that the Steward of his Lords Court For a Steward of a Court to bring in the Court Rolls to whom he was a Copyholder might be ordered to bring in the Court-Rolls into this Court that by them he may be the better enabled to defend his title to the lands But Roll Iustice said He cannot be ordered to doe it by this Court therefore we will make no rule in it Trin. 24 Car. Banc. Reg. AN Action of Debt was brought for Rent in the Common Pleas Error to reverse a judgement in the Common Pleas fortent Misnosmer where the Plaintif had a Verdict and a judgement and a Writ of Error was brought in this Court to reverse this Iudgement The Errors assigned were 1. There is an Indenture recited to be between the Plaintif and Iohn Barber whereas it should have been Iohn Barker Roll Iustice answered It may be that he is known by the one name and the other and then it is well enough A second Exception was It is said per indenturam signatam and doth not say deliberatam and then it is no deed if it be not delivered To this Roll Iustice answered Deed. If he say per factum suum it is well enough notwithstanding for that implies it to be a perfect deed 3ly He declares for Rent of Houses in Kent street and doth not shew in what Parish Kent street is Adjourned Trin. 24 Car. Banc. Reg. THe Court was moved for a habeas corpus for a Prisoner in the Kings Bench Prison that he might be a writnesse in a cause to be tryed at the next Assises in Darby Shire But Roll Iustice answered we will grant no habeas corpus for this is but a trick of the party himself to gain his Liberty that he may go a hawking and hunting this long vacation But I have known it granted for one to be a witnesse at a trial at Yield Hall but at the charges and peril of the Party for whom he was to be a witnesse if he escape Mich. 24 Car. Banc. Reg. VPon a motion for a habeas Corpus for one in Execution upon a sentence given against him in the Court of the Admiralty For a habeas corpus for one in Execution upon a sentence in the Admiralty It was said by Roll Iustice That if one be sued in the Admiralty to a sentence and be in Execution upon it and be brought hither by a habeas corpus if upon the retorn it doth not appear that the Admiralty had not jurisdiction of the cause but it appears only that they had proceeded to a sentence against the rules of their own Court This Court will not deliver the Prisoner out of Execution Appeal for he ought to have made his appeal before he was taken in Execution And so is it touching the proceedings in other Courts of equity Cage Mich. 24 Car. Banc. Reg. ONe Cage was in Execution in the Kings Bench upon a Iudgement had against him for a hundred pound To vacate a satisfaction acknowledged upon a Iudgement The Plaintiffs Attorney by fraud without the consent of his Clyent acknowledgeth satisfaction upon this Iudgement afterwards the Attorney of the Defendant without the consent of his Clyent acknowledgeth another Iudgement for the same Debt The Plaintiffs Councel moved that the Defendant might be in Execution upon the first Iudgement and that the satisfaction acknowledged thereupon might be vacated Roll Iustice answered Commitment The Attorney ought to be committed for acknowledging the second Iudgement without Warrant But here are two frauds one of each side so that there is fraud against fraud and so the partyes are left to their remedyse one against the other but both the Attorneys shall be committed for their false practie And we will examine the whole truth of the matter Saturday next against Loveday Mich. 24 Car. Banc. Reg. THe Court was moved upon an affidavit that one of the Iurors that gave the verdict against the Plaintiff had a sute in law depending at that time with the Plaintiff and therefore that the tryal was not indifferent For a new tryal after verdict because a Iuror not indiste rent Challenge Tryal and therefore it was prayed there might be a new tryall But the Court said it could not be and asked the party why he did not challenge the Iuror for this cause at the tryal for want of which he had now lost that advantage Stradling and his wife against Boreman Mich. 24 Car. â—anc Reg. STradling and his wife brought an Action of Trespasse of Assault and battery Arrest of judgement in Trespasse Ioyn in Action and taking of a horse agianst Boreman and the Plaintiffs declare ad damnum ipsorum and have a verdict the Defendant moved in arrest of Iudgement and shewed for cause that the Baron and Feme cannot joyn in this Action but ought to bring severall Actions for the wrong done to each was severall The Iudgement was thereupon stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. AN Action upon the Case was brought for speaking these words Arrest of juogement in an action upon the Case He is gon and dares not shew himself for Debt and he is a Banckrupt for ought that I know the Plaintiff had a verdict the Defendant moves in attest of Iudgement that the words are not actionable because they are general and uncertain But the Court held that all the words taken together are actioanble but stayed the Iudgement for a week Mich. 24 Car. Banc. Reg. IVrors who appeared for a tryal at the Bar which fel off for want of a full Iury Iurors move for their charges prayed the Court they might have their charges because they came a great way and had attended long in town The Court answered them that it was their neighbours fault who did not appear that the tryal went not on for both the partyes are ready and if the cause had been tryed you should have had all your charges But now we can order nothing Mich. 24 Car. Banc. Reg. VPon a Retorn of a certiorari to remove an order of Sessions made against a Parish for not repairing of a high way Exception to an order and fine of Sessions Hales of Councel for the Parish took this exception viz. That the fine was set upon the Parish without any processe issued out against the Parish only upon a certificate of one of the Iustices of the peace made upon his own view that the way was not repaired and so the Parish was condemned before they were heard To this the Court answered That a Iustice of Peace may make a certificate upon his own view Certificate of the want of reparations of a Highway by the Statute Therefore bring a certificate that the way is repaired else we will do nothing for we
must not be too hasty to overthrow such presentments which so much concern the publique good And in this case if there be a conviction in law Conviction Travers and the fine levyed we cannot help it and now you cannot traverse for it is too late Sir Anthony Ashley Cooper against St. Iohn Mich. 4 Car. Banc. Reg. SIr Anthony Ashley Cooper brought an Action of Trespasse upon the Case for false imprisonment of him against St. John Arrest of Judgement in an action on the case and hath a verdict against him the Defendant moves in arrest of Iudgement and takes this Exception to the Declaration that it wanted vi et armis which ought to have been because this is not a meer Action upon the Case but in its nature it is an Action of Trespasse and therefore he ought to have been declared in with vi et armis Roll Iustice answered what say you to the Case Declaration quare fregit suum mill dam which hath been adjudged good without vi et armis as well as with vi et armis and in one case it shall be said to be an Action of Trespasse viz. with the vi et armis and in the other an Action upon the Case viz. without the vi et armis and Bacon Iustice cited the 9. rep The Earl of Shrewsburyes Case Roll Iustice It is a plain Action upon the Case as it may appear by reading of the Record for it is with an et quod cum Bacon Iustice said one cannot have an Action of Trespasse for the breaking of another mans fence but if he be damnifyed by the breaking of it Tresasse Case he may have an Action upon the Case against the party that broke it Ayre against Sils Mich. 24 Car. Banc. Reg. AYre brought an Action upon the Case against Sils Arrest of Judgement in an action upon an assumpsit Case upon a promise to pay certain arrerages of rent appearing due unto him upon an accompt made between him and the Defendant The Plaintiff had a verdict The Defendant moves in Arrest of Iudgement and for cause shews that an Action upon the Case doth not ly upon a promise to pay rent appearing due upon accompt for the rent was due by a reall contract and upon that the Plaintiff had remedy without the promise To this the Court said that this Action doth not ly for rent alone due upon a real contract but for the rent with other things it doth lye yet let the Iudgement be stayed for there is here no new consideration appearing to ground this promise upon but only the old consideration of Law for the payment of the rent and upon that an Action of the Case doth not ly for it is in the realty Tomkins against Jourden Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 96. A Writ of Error was brought to reverse a Iudgment given in an inferiour Court these Errors we are assigned Error to reverse a judgement given in an inferiour court 1. It is said in the stile of the Court that the Court was held per consuetudinem et literas patences which is not good for the Court cannot be held by both Roll Iustice This is not good 2ly Against the writ of Error it is objected by the other side that the writ of Error is directed to one and is retorned by another for the certiorari was to certyfie a Iudgement given before the Maior Aldermen and Recorder and the Iudgement certifyed is a Iudgement given before the Maior and the Aldermen and the Recorder is left out so that the Record is not removed and then the Iudgement cannot be affirmed Roll Iustice said the pleading is confused and Bacon Iustice said you have changed the stile of the corporation by your pleading If a Court be held by Custom Custom and after a patent be purchased to hold it and they hold it by the patent the Custom is gone but bring us a Copy of the certificate of the stile of the Court and in the mean time we will advise Pickering against Barkley Mich. 24 Car. Banc. Reg. Pasc 24 Car. rot 154. PIckering brought an Action of Covenant upon a deed of Covenants of Charter-party Demurrer upon a plea in an action of covenant whereby it was Covenanted that the Defendant in consideration of a certain sum of mony agreed to be paid to the Defendant for fraight of a Ship should make such a voyage and bear all losses and damage which should befall the Ship or Merchandises in her excepting only perills of the Sea and declares that the Defendant had not performed his agreement and for this he brings his Action The Defendant pleads that in the making of his voyage upon the Sea the Ship was taken per quosdam ignotos homines bellicosos whereby he was hindred in making of the voyage according to his agreement to this plea the Plaintiff demurs The question was in regard that in the Charter party perills of the Seas were excepted whether the taking of the Ship by these unknown men of War should be accompted a perill of the Sea or not according to the meaning of Merchants Twisden of Councel with the Plaintiff held it should not and so the plea was not good and that therefore the Plaintiff ought to have Iudgment and said this was not a danger of the Sea but a danger upon the Sea 2ly He said the party it may be might have prevented it by vigilancy or by making resistance and so it may be it was his own fault the Ship was taken 3ly The men of Warr that took the Ship were peradventure English men and then the Defendant is not to be excused for he may have his remedy for what he is damnified against them and cited 33 H. 6. f. 1. and prayed Iudgement for the Plaintiff Hales of Councel with the Defendant held that to be taken and robbed by Pirates is a danger of the Sea even as tempestuous winds and Shelfs and Rocks are And 2ly To that it is said the pirates may be English men we are not able to say of what Nation they were and therefore our plea is good in that point also and prayed Iudgement for the Defendant Roll Iustice said it was not well pleaded to say per homines ignotos Bacon Iustice said The Defendant doth not shew that he and his Ship was carryed per locos incognitos as he should have shewn Plea but Roll Iustice answered that it may be the Ship is yet kept upon the Sea but I suppose that Pirates are perils of the Sea and to this purpose a certificate of Merchants was read in Court that they were so esteemed amongst Merchants Yet the Court desired to have Granly the Master of the Trinity house and other sufficient Merchants to be brought into the Court to satisfie the Court viva voce Friday next following Iudgement was given this Term nil capiat per billam because the taking by Pirates
displacings of estates because it puts an estate in a stranger who ought not to have it as Bredons Case is where one doth acknowledge another to have the inheritance by the fine this is a forfeiture By the fine here the Conusor acknowledges more to the Conusee than he hath and he might have expressed in the fine the estate that he hath in the Land and no more and so there is an estate in possession here Ierman Iustice said the fine shall not be construed to do wrong but the Case is of consequence therefore he would advise Nicholas held it was no forfeiture Ask was of the opinion of the chief justice Roll chief Iustice said estopels will make forfeitures in many Cases Q. what Iudgement was given Meers against French Hil. 1649 Banc. sup Entred Hil. 24 Car. rot 24. AN ejectione firmae was brought for ejecting the Plaintiff out of a rectory Arrest of Iudgement in an Ejectione firmae and declares of a lease thereof made unto him by Indenture The Plaintiff had a verdict the Defendant moved in Arrest of Iudgement that the Plaintiff had declared of a lease per Indenturam Declaration and doth not say in curia prolatam The Court answered if an Indenture be pleaded but by way of inducement it is not necessary to say in cruia prolatam otherwise if it be pleaded to entitle the party by it 2ly He declares that the Defendant did eject him out of such a close and doth not say whether it was pasture or arrable land nor how many Acres it was Roll chief Iustice said it is not good if it be of a close of Land if he do not give it a name nor declare of what nature the land is 3ly He declares that the Defendant ejected him de uno Crofto which is incertain But Roll chief Iustice said That a writ of Dower and an Assise will lie de uno Crofto and so will an Ejectione firmae Dower Assise although a Formedon will not lie de uno Crofto And therefore let the Plaintif take his Iudgement except cause be shewed to the contrary Monday next Postea Hill 1649. Banc. sup Entred Trin. 24 Car. C. B rot 1010. A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Action of Trover and Conversion of divers goods Error to reverse a Iudgement in Trovers Conversion for many improper words used in the Declaration to express several of them as 1. Argentum servitium is used to express a silver Salt-cellar which is not good for servitium is Latin for service And in Parker and Martyns case in this Court Instrumentum ferreum anglice a Horse-lock was held not good and 3 Iac. Robotums case Hama anglice a Crow of Iron was adjudged naught 2ly He declares de duobus Castoribus anglice two Hats 3ly De duobus Catents pro patinis anglice Dishes 4ly De duodecem Crinalibus et plagulis anglice Coifs and Crosscloaths Ed. Turner prayed for Iudgement notwithstanding these exceptions Because as to the 1. there is no proper word for a silver Salt-cellar and it is here well enough described by divers words 2ly There is no proper Latin word for Hats called Demy-Castors and therefore it is lawfull to frame words so for the rest being new things not known to the Romans there are no Latin words for them so words may be invented well enough to express them and servitium argenteum is here with an anglice and therefore it is a good description of the thing and de instrumento ligneo Composito anglice a skreen hath been adjudged good because there is not a proper word to express it But the Court doubted of the words used for Coâ—fs and Close-clothes because they are divers things Ierman Iustice said argenteum servitium anglice a silver Salt-cellar cannot be good for servitium is Latine for service But Roll chief Iustice said if servicium signifie nothing then the Iury gave no damages for that and then the rest may be good But yet the Iudgement was ordered to be reversed except cause shewed and was then at the prayer of the Councel pronounced which if it be not prayed the Iudge will not doe it Quod nota Peise against Mablye Hill 1649. Banc. sup Pasch 1649. rot 222. A Writ of Error was brought to reverse a judgement given at Launceston in an Action of trespass upon the case Error to reverse a judgement in an action upon the case for words for these words These Town weights in Georges possession meaning the Plaintif who was the Common weigher of the Town are false and cosening weights The 1. exception was that here was no Communication had of the Plaintif but the words are only spoken concerning the weights 2ly The judgement is not well entred Case Judgement for it is said to be given ad eandem Curiam whereas it ought to be per eandem Curiam Upon these exception the Iudgement was reversed Colson against Ree Hill 1649. Banc. sup Hill 24 Car. rot 561. A Writ of Error was brought to reverse a Iudgement given in the Court at Newcastle upon Tyne in an Assise of Novel disseisin Error to reverse a Judgement given in an Assise Assise of Nusance The Error assigned was that the Plaintif doth declare that the Defendant did disseise him de uno muro lapideo and that the Defendant had erected a house in the place to his nusance The Court answered The Plaintif ought to have brought an Assise of Nusance for this wrong which because he hath not done let the judgement be reversed Batisford against Yate Hill 1649. Banc. sup Pasc 1649 rot 289. A Writ of Error was brought to reverse a judgement given in an Action of Trover and Conversion for these errors Error to reverse a judgement given in a Trover and Conversion Venire 1. It is said of the Iurors in entring of their verdict Dixerunt pro querente and aly In the awarding of the Venire it is ideo praeceptum fuit with an and so it is not certain whence the Venire issued as it ought to be The rule was the judgement should be reversed if cause were not shewn to the contrary Cooke against More Hill 1649. Banc. sup Trin. 1649. rot 645. COoke brought an Action upon the case against More upon an Assumpsit Demurrer to a plea in an â—ction upon an Assumpsit to pay for certain barrels of béer sold and delivered unto him such a day The Defendant pleads specially that he did not assume as the Plaintif hath declared To this plea the Plaintif demurs because that by thus pleading the Plaintif is tied up to a particular day whereas he may give in evidence for any other baâ—rels of beer sold at any time before the Action brought The Court ordered cause to be shewn why the Plaintif should not have judgement upon this demurrer Banbury against Basely Hill 1649. Banc. sup
the bringing of the writ of Error is delay enough and therefore if you have not assigned the Errors according the rules of the Court they shall not be now accepted Dewick against Bamber Hill 1649. Banc. sup THe Court was moved upon an Affidavit that the Defendant might plead and goe to tryal That an Attorney might be forced to plead Plea Appearance because his Attorney hath appeared and now he saith he is not an Attorney of this Court and doth refuse to plead Roll chief Iustice answered If he hath appeared and yet will not plead enter your judgement against this Clyent and though he have not appeared if he did promise to appear we will force him to doe it VVhitchurch against Pagot Hill 1649. Banc. sup THe Court was moved in the behalf of Whitchurch a Clerk of this Court To be restored to a Clerks place in the Castes Brevium Office that he might be restored to his Office in the Office of the Custos brevium according to an Order of this Court otherwise that he may have liberty to bring his Action against the Custos brevium The Court answered that the Master of the Office is answerable for all his Clerks and hath power over them and they are not Officers but méer Servants and therefore there is no remedy to be had in Law against him Restitution but in Conscience he ought to restore him Therefore let him shew cause next Term why he should not be restored In Michaelmas Term 1654. After divers motions and hearing what was objected on both sides upon his submission in Court to Mr. Paget the Master of the Office he promised to restore him Mich 1649. Banc. sup THe Court was moved in Arrest of Iudgement that the Plaintif was 19 years old Arrest of Iudgement for pleading per Guardianum and sued per guardianum which ought not to be for after he is 17 years years old he ought to sue per Attornatum suum The Court answered this is no good exception for if he be within the age of 21 years he may sue per guardianum and he is admitted by the Court to doe so And therefore let the Plaintif take his Iudgement Bigford against Topsam Pasc 16â—â— Banc. sup Mich. 1649 rot 85. A Writ of Error was brought to reverse a Iudgement given in an Action of Debt upon an obligation with the condition for the payment of a certain sum of money after the return of the Ship Error to reverse a judgment in debt to the Port of Plymouth The Defendant pleaded a special plea to which the Plaintiff demurred upon this demurrer the Iudgement was given for the Plaintiff upon which Iudgement the writ of Error was brought Wadhaâ—â— Windham assigned for error 1. That there issued a pone out of the Couâ—â— of Plymouth returnable the 1 of March and the Defendant did not appear till the 8 of March and so there is a discontinuance Hales of Councell on the other side answered that the Plaintiff had accepted of a Declaration Discontinuance and so that fault is helped The Court answered the acceptance of the Declaration doth not help it But the Record is not so therefore passes ouster A 2d Exception was that there is no bail taken Bail for it is erroneous bail and so shall be accompted no bail The Court answered this is not material here A 3d. Exception was that it is said that the plea was held before the then Maior and doth not shew that he was elected The Court answered it is well enough as it is though it might have been otherwise It was adjourned Custodes Libertat c. against Mountain and Lydal Pasc 1649. Banc. sup AN information was exhibited by the Attorney generall against the Defendants for engrossing divers Acres of Corn. Demurrer to a plea to an information for engrossing They pleaded that they had been heretofore prosecuted in the Court of the Exchequer and were acquitted thereof To this plea the Attorney general demurred and these reasons were shewed why the plea was not good 1. It is not pleaded that they were acquitted by judgement or upon a verdict or upon a former information exhibited against them 2ly It doth not appear that the Exchequer had jurisdiction of the cause 3ly There could be no information duly exhibited for it is said to be the 10. of September which is out of the Term and so the Court did not sit 2ly there is no issue joyned for the Plaintiff saith ponit se c whereas it being by way of recital ought to have been posuit se and the other saith petiit quod inquiratur per patriam 3ly There is no verdict in the Case for the issue is non culp contra Statutum and the verdict is non est culp juxta Statutum 4ly There is no judgment for it is eat ad praesens and it ought to be iret ad tunc 5ly There is no averment that the first information was for the same offence 6ly The information ought to be in the same County by the Statute of 21 Jac. and the Barons of the Exchequer are not Iudges by the Statute and so prayes Iudgement against the Defendant Hales of Councell with the Defendant answered to the third exception That in the Exchequer there is a Court the 10. of September to receive informations although it be out of the Term time And he said there is a good issue joyned and a good verdict for the words juxta et contra in this place have one and the same sence And the Iudgement is also good And the information was well brought in the Exchequer notwithstanding the Statute of 21 Jac. for the offence was in Midlesex where the Exchequer is Also if the Iudgement be not good by reason of Error yet it shall be accompted good till it be avoided by plea And although it be erroneous yet here is a discontinuance for Mich. 24 Car. St. Iohn was chief Iustice of the Commons Pleas and not solliciter as the plea supposeth The Court answered that they cannot take notice of that And here is no issue joyned nor any continuance to part of the plea pleaded by the Defendant and the demurrer goes not to the plea upon which the party puts himself upon the Country and there is no demurrer to that The demurrer is referred to the last plea and not to all and so there is a discontinuance to part and the first Iudgement is not void untill it be avoided by plea and here the fact was done in the County where the Exchequer is Void and â—oideable Discontinuance Câ—râ—â—orari and so the Barons are Iudges of it by the Statute and a fine that is voideable is not void untill it be made so by pleading And if you cannot answer the discontinuance all the rest is to no purpose therefore take time to answer that It was said also by the Court that the Defendant may remove an information exhibited against
purpose to dispence with the want of Investiture if it were necessary and the reason of the making the new Patent of the Lord Barkeley was not for the want of the Clause of Investiture for the Investiture is a ceremony of the Heraulds and not essential to the Honour And although there be no certain place of denomination of the place of the Earldom yet is the Patent good for it may be out of England and yet she may be an English Countess notwithstanding Although I agree that forein honours may be granted by the Broad Seal of England but here be sufficient words to express her to be an English Countess the most proper that can be viz. the Patent Creations of such honours have been frequent she hath also a sufficient estate to support her dignity I confess that it is true that no person can be privileged from Arrest by grant but here the privilege ensues the Patent of her Counteship by Custom and Law as incident to it The King cannot grant a privilege to imprison but if he grant a Court the power to imprison follows necessarily upon it And the privilege which the Law gives to the person of a Countess is that which exempts her from Arrest as it appears in the Case of a Countess by Mariage and a Countess by Creation is more honourable than a Countess by Mariage and therefore ought to have as high privileges as the other and the Statute made concerning Countesses the wives of Earls and Barons do appertain to a Countess created for those Statutes were but an affirmance of the Common Law and did introduce no new Law This privilege is not taken away for it arose by Custom and by the Common Law and not from Foreiners as Latch conceives and so the reason of that cannot be as he urgeth but by the privilege of the person which indures as well when there is no Parliament as when there is and this privilege is during life and not like to a privilege granted by reason of employment For a Countess Dowager hath no more reason to be privileged in relation to military employment than a Countess by Creation and by the late Act no employment is taken away And for the Clergy they were privileged from Arrests not because of employment but by reason of the eminency of their persons There may be an Earl or a Baron by writ or by prescription and there it ought to be certified by writ but here the honour being by Creation the Patent may be pleaded to certifie it as well as if it were certified by writ and to plead it thus is the more proper way A Baron ought not to be stiled Dominus in a writ but by his Christian name and addition of Knight if he be one if he have no special name of Barony in his Creation Roll chief Iustice demanded if one be made a Baron and be not called to the Parliament by writ or comes thither by virtue of some clause in his Patent shall he be exempted from Arrest quasi diceret non And if one heretofore had had twenty Knights fees Privilege could he have come to the Parliament by reason of them And held that the privilege is not allowable for she never had reference to the Parliament or to do any other publique service Ierman Nicholas and Ask Justices agreed with Roll in all Roll said If the King grant a Town to be a Burrough the grant gives it not privilege to send a Burgess to the Parliament except there be special words in the Patent to warrant it but if he make a County it is otherwise by Statute Adjourned Hayward against VVilliams Hill 1650. Banc. sup Hill 1649. rot 824. THe Case was this Whether a Writ of Error well brought A Feme was sued as a Feme sole but by the surname of her Husband she being Covert Baron and Iudgement was given against her and the Baron brought a writ of Error The question was whether the writ of Error was well brought by the Baron It was then said That if a Feme Covert levy a fine as a Feme sole if her Baron die she shall not defeat it but the Baron may defeat it during her life 18 E. 4 40.7 Roll chief Iustice to the case at the Bar said how can the Baron bring a writ of Error here who is no party to the Record neither is chargeable by the judgement But let us see books for the case is considerable Postea Needler and Guest Hill 1650. Banc. sup Trin. 1649. rot Q. A Writ of Error was brought in the Chequer Chamber to reverse a judgement given in this Court Whether Execution may be notwithstanding a Writ of Error brought in the Chequer Chamber Execution The question was whether now since the late Act that a Writ of Error shall be no supersedeas of Execution this Court may grant execution Roll chief Iustice said it may for otherwise the Act is to no purpose Latch said the Record is not now in this Court and therefore there can be no Execution granted here Roll chief Iustice answered you have confessed by your pleading namely by your Demurrer that the Record is here so far as to grant Execution Therefore let there be Execution except cause be shewed to the contrary the day the next term But afterwards the Court said they would not grant it but said the party might take execution at his peril and Alleyn Hill 1650. Banc. sup A Certiorari was directed to the County Palatine of Chester to remove a cause into this Court. They make a special retorn Whether a Return good out of the County Palatine of Chester viz. that they have jurisdiction of the cause and that therefore they are not to certifie it Serjeant Glyn argued that this retorn was not good for this Court hath jurisdiction over all the Courts in England in writs mandatory 34 Ass 7.19 H. 6.12 And an Act of Plarliament doth not take away the power of this Court if it run not in the negative but in writs remedial it is not so general as it is in this case the cause may be well enough tryed here notwithstanding it be concerning a matter which ariseth in the County Palatine as the Statute 9 Ed. 3. C. â— is 2ly It appears that the Maior and Citizens of Chester are parties and so they will try their own cause and this appears by the Record and this they ought not to do 21 H. 7. f. 33. lib. Ass 332. 37 E. 3. f. 7.6 Iac. C. Banc. and Smith and Hancocks case 23 Car. Banc. Reg. Roll chief Iustice answered If the cause were come to tryal this were good cause to remove it but it is not so here and it appears not by the retorn that the matter of the sute did arise within the jurisdiction of the City what say you to that Iurisdiction for they have not shewn any cause why they should have jurisdiction
Return Tryal Therefore let them shew cause before the end of the Term upon notice why they should not make a better retorn Roll said the Action may be well brought there although they cannot try it there for the Original is good Shurlye against Semaign Hill 1650. Banc. sup THe Court was moved upon an Affidavit that two writs of Execution were executed upon one Iudgement For a supersedeas to an Execution therefore it was prayed that the last execution might be superseded because there ought not to be two executions for one matter but where the party is prejudiced by death or Act of Law that the party cannot take benefit of the former execution 28 H. 8. Dyer and 13 Eliz. Dyer Roll chief Iustice If the first writ of Execution be returned and filed there cannot be a second Execution Execution otherwise it is if it be not retorned and filed Therefore take your Course Coleman against Blunden Hill 1650. Banc. sup Mich. 1650. rot 447. COleman brought an Action upon the case upon an Assumpsit against Blunden and had a verdict against him Arrest of judgement in an Action upon the Case In Arrest of Iudgement it was moved that it doth not appear by the Declaration to whom the Assumpsit was made but it only says super se assumpsit and upon this Exception The Court ruled a nil capiat per billam VVarry against Bond. Pasch 1651. Banc. sup IT was moved in Arrest of Iudgement in an Action of Debt brought upon an Obligation to stand to an Award Arrest of Iudgement in debt upon a Bond to stand to an Award that the submission to stand to the Award was conditional viz. so that the Award were delivered up the 27 day of such a Month And it appears that the Action brought is for not performing an Award made the 24 day of the same Month so it appears not whether the Award were delivered upon the 27 day or no and so it may be that the condition is not broken Roll chief Iustice answered the question is whether it be an Award before the delivering it up or no. Therefore let the Iudgement stay till the Plaintif move Award for it is worthy of Consideration Harman against Iacob Pasch 1651. Banc. sup IN an Arrest of Iudgement upon a verdict given against an Alien in an Endictment upon the Statute of 22 H. 8. C. 1◠for using a Trade Arrest of Iudgement upon an Endictment exception was first taken that the Endictment doth not say that the Defendant was born out of the power of the Common-wealth but only that he was born out of England To this Roll chief Iustice answered if it say that he is Alienigenus Alien that emplyes all 2ly The Endictment doth not say that he is Alienatus extra Angliam and this was held a good Exception Sir Humphry Tracye against Bloom Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict given in an Action of Debt for rent upon two leases Arrest of Iudgement in Debt for Rent one for years and the other at will The Exception taken was that the Plaintif declares upon a demise made to the Defendant the 7th of October 1646. at will and sets forth that the Defendant held the lands let for 2 years ending at Michaelmas 1648. and so for two years rent behind he brings his Action whereas there cannot be such a rent due for such a Term for although the rent be due for the whole year at Michaelmas yet the term of 2 years is not ended at Michaelmas for that is upon the 29 day of September whereas the 2 years end not till the 6 of October following Roll chief Iustice answered the rent for the 2 years was due at Michaelmas Rent and take all the words together the Declaration is good enough although the expression be not so proper as it might have béen Nicholas and Ask as Roll and so the rule was judicium nisi Shann and Shann Pasch 1651. Banc. sup SHann brought an Action upon the Case upon an Assumpsit against Shann Arrest of Iudgement in an Action upon an Assumpsit and declares That in Consideration that the Plaintif would surrender to the Defendant and his heirs a Copyhold according to the custom of the manor the Defendant did assume and promise unto the Plaintiff to pay unto him 500 l. and for breach of this promise he brought his Action and obteins a verdict against the Defendant The Defendant moved in arrest of Iudgement and took this exception viz. that the consideration on the Plaintiffs part was not performed for the consideration was that he should surrender the Copyhold to the Defendant and his Heirs and he hath set forth the surrender to be into the hands of a Copyhold Tenant of the manor to the use of the Defendant which is no surrender Surrender untill it be presented at the next Court and so it is incertain whether it shall take effect or no. Roll chief Iustice said It is expressed to be secundum consuetudinem manerii yet this is not sufficient for it is not an effectual surrender untill it be presented at the Court. Therefore let Iudgement stay till the Plaintiff move Lord Mont-Eagle Pasc 1951. Banc. sup THe Lord Mont-Eagle was arrested by a bill of Midlesex and for want of bail was turned over to the Mareschal of this Court For the Defendant to plead in chief Plea dilatory and being in Custodia Mareschalli the Plaintiff declares against him in Debt upon an obligation The Defendant pleads his peerage and prayes to be discharged The Court was moved that he might be ordered to plead in chief and not this dilatory plea. The Court thereupon ordered that he should shew cause why he should not plead in chief and said his plea was dilatory and so it had been ruled lately in the case of the Earl Rivers Fielder and Tovye Hill 1650. Banc. sup Pasc 1651. rot 430. FIelder brought an Action of debt upon an obligation Demurrer to a Declaration in debt upon an obligation the Defendant prayed Oyer of the Bond and upon view thereof demurs to the Plaintiffs Declaration and for cause shews that the Plaintiff declares for quadragint libris and the Bond is quadragent libris and so there is a variance To this it was answered by Green that this is no material difference for the words sound alike and there is more difference between dra and drin than between ginta and genta between dra drin hath been held no materiall variance and quadragent is not utterly incertain here for either it must be 40. or 400. and the condition of the obligation explains the sum and the Plaintiff here declares but for 40 l. and so it appears in the Record In Osbornes case octogenta was for octogint and yet held good and Hob. 18. Logards case Trigintat insteed of triginti and in Walter and Pigots case Septingent is used
pacty who is to assign the dower may agrée that the dower shall be assigned without bounding it For consensus tollit errorem But dower ad ostium ecclesiae must be more certain Dower Mich. 43 44 Eliz. Bullock and Finches case Hill 4 Iac. C. B. Roll chief Iustice Of Common right a feme ought to be endowed per metas bundas where the Sheriff assigns dower who is an officer of the Law and ought to prevent incumbrance and disputes But it may be assigned generally of the third part in some cases Consent and the partyes may agree against Common right and here both partyes agreed to take dower in this Manor And though here the termer for years of the land who is a third person be prejudiced by this assignment yet this alters not the case because it is only an estate for years and toucheth no freehold Nicholas and Ask Iustices as Roll. Ierman Iustice If dower be of a third part it ought to be by metes and bounds generally but if it be of a moyety it is not so or if the partyes consent it shall be otherwise Roll if the Sheriff assign dower and do it not per metas bundas it is Error Error if it might have been so assigned and where a feme cannot be endowed per metas bund as she may enter without assignment Iudgement was given for the Defendant nisi c. Smith against the Earl of Dorset Trin. 1651. Banc. sup SMith moved the Court against the Earl of Dorset Motion for an attatchment for disobeying a rule of Court Attatchment for an attatchment for disturbing of him in the possession of certain Lands contrary to the rule of this Court for the Plaintiff to have possession The Court answered that for only disturbing his possession there ought not to be an attatchment granted but if he be put out of possession he shall have an attatchment The Councel replyed that the partyes cattel were driven off from the land which they conceived was an ousting of the party from his possession To this the Court answered that this seemed to be a putting out of possession And therefore ordered that the Defendant should shew cause why an attatchment should not be granted Owen against Ievon Trin. 1651. Banc. sup Pasc 1651. rot 211. THis case formerly spoken unto in arrest of Iudgement and then stayed Iudgement prayed in an Action for words was again moved and Iudgment prayed for the Plaintiff by Serjeant Glyn who argued that the words were actionable because if they were true the party of whom they are spoken is punishable by the Statute of 7 Iac. with corporal punishment and besides the words were spoken since the last Statute made against Adultery which doth aggravate the words and make them more actionable Iudgement was given for the Plaintiff nisi In this case it was said by the Court that it was adjudged in one Thecker and Duncombes case that a woman may have a child in 38. weeks and that a woman by cold or hard usage may go with child above 40 weeks Antea Nelson against Tompson Trin. 1651. Banc. sup Trin. 24 Car. rot 343. NElson brought an action of the Case against Tompson Demurrer in an Action upon the Case upon a promise and did declare that the Defendant in consideration that the Plaintif would cease to prosecute a sute in Law against him did assume and promise unto the Plaintif that he would pay unto him 8 l. the charges of sute which he had been at for breach of this promise Actio acrevit sets forth his damage To this Declaration the Defendant demurs in Law takes this Exception viz. That there is no time nor place set forth where or when he did forbear to sue the Defendant as it ought to be because it is a traversable matter But Roll chief Iustice answered It is not necessary to allege a place of a negative thing to be done viz. to say that he did not prosecute the sute in such a place or at such a time for he ought to surcease prosecution in all places and at all times Therefore let judgement be for the Plaintif except better matter be shewn Friday next Lydaâ—e and Lyster Trin. 1651. Banc. sup Mich. 1650. rot 387. AN Action of Debt was brought upon an Obligation made to a Bishop and his Commissary for the payment of Debts and Legacies Iudgement in Debt upon a Bond reversed the Action was brought by an Executor and judgement given by Default against the Defendant the Iudgement was reversed by a Writ of Error because the Action was brought in the Debet and Detinet whereas it ought to have been brought in the Detinet only because it was brought by an Executor Saunders against Ritch Trin. 1651 Banc. sup Hill 1649. rot 758. IN an Action of Trespass and Ejectment upon a special verdict found The Case fell out to be this Special Verdict in Trespass and Ejectment A man by his last Will and Testament devised all his Fée simple land wheresoever to his Brother upon condition that he suffer his wife to enjoy all his free lands in Holford during her life and the jury found that the Testator had only a portion of tithes in Holford The question was whether the portion of tithes did pass to the wife by this devise Merifield held That the Tithes passed not by the devise because the word lands cannot extend to tithes for that would be a very forced construction and cited Trin. 17 Iac. Banc. Reg. Knight and Knights case and Mich. 39 40 Eliz. Entred 38 Eliz. rot 269. Yow and Hardings case Banc. Reg. That Houses are not devisable by the name of lands and he said that the word wheresoever makes no difference as to make the tithes pass and though there be an implication and an intent in the Testator here to dedevise the tithes yet that will not serve because there wants words to express this intent and though this be in a will yet there must be words used to support the intent of the Testator for wills must be ruled by the rules of the Common Law Ashinghurst and Curtice his case Mich. 7 Iac. Hob. rep 34. the last Edition Mich. 42 43 Eliz. Banc. Reg. a devise of Lands extend not to tithes for tithes are not lands but a meer collateral thing to them and have no relation to them Mich. 1. Iac. rot 192. Mills and Hides case Banc. Reg. 11 Rep. Bridle and Napers case f. 13. b. Trin. 42 Eliz. B. Reg. Sherwood and Winston held that tithes cannot be appendant to a Manor 1 Rep. 111. Albanies case and here are no words in the Proviso to pass the tithes It is true that tithes may lie in tenure and that an Action of debt lies for them but that is by the Statute 19 Eliz Dyer f. 354. The word land in a will doth not extend to tithes and heirs ought not to be
willingly kept a Bawdy house and then he is not punishable Pepes on the other side held the words to be actionable and cited Hill 3 Car. Elsey and Harisons case thou art a whore and a Bawd to thy daughter and keeps a Bawdy house which words were adjudged actionable 24 H. 6.14.38 39. Eliz. In the Lady Barkleys case the keeping of a Bawdy house is an offence punishable at the Common Law and therefore the words spoken are actionable Case Roll chief Iustice To call one whore in London is Actionable And the words here are actionable for the keeping of a Bawdy house is a crime punishable at the Common Law for the party may be endicted for it and it shall be intended to be a common Bawdy house although it be not so expressed Endictment and the Plaintiff is scandalised by the speaking of the words Ierman Nicholas and Ask Iustices were of the same opinion Iudgementt was given for the Plaintiff nisi Snelgrave and Bosvile Pasc 1652. Banc. sup Mich. 1651. rot 200. BOsvile brought an Action of debt against Snelgrave Debt against an heir upon an obligation as Heir unto his Father upon an Obligation entred into by him unto the Plaintiff the Defendant pleads riens per discent jour del bref the Plaintiff replyes that he had lands by descent and upon this an issue is joyned and the Iury find he had lands by descent and name them particularly and upon this a Iudgement is given for the Plaintiff in the Common pleas that he shall recover his debt of the lands descended upon this Iudg ment a writ of Error was brought here and the Error assigned was that the Iudgement ought to have been given generally against the Defendant and not particularly of the lands descended 2ly the Iury ought not to have found what lands particularly the Heir had by descent but generally that he had lands by descent because the issue is general whether he had lands by descent or not and therefore the Iudgement given upon this ill verdict is not good Roll chief Iustice The Iudgement is unwarrantable for the verdict is against the issue joyned Iudgement Verdict and the Iudgement here ought to have been generall of all the lands and goods and against the person of the Heir for his false plea and not particular to recover of certain lands as it is here for this is not so good a Iudgement for the Plaintiff as the general Iudgement is and this Iudgement may be against the Plaintiffs mind Error for any thing doth appear to the contrary and a like Iudgement was reversed in Alleâ—n and Holdens case in this Court Ierman Nicholas and Ask of the same opinion And thereupon the Iudgement was reversed Floyd against Morgan Pasc 1652. Banc. sup A Writ of Error was brought to reverse a Iudgement in an Action of Trespasse for taking away of certain Houshold stuff Error to reverse a judgment a trespasse for taxing away of of goods and the Error assigned was that the Declaration was incertain for that it wanted latin words to expresse the things for which the Action was brought for the Declaration is for the taking away of quoddam instrumentum ferri Anglice a gridiron et quoddam instrumentum ferri Anglice a morter et quaedam instrumenta ferri Anglice brandirons which are words utterly incertain for the generality of them what they may signifie Roll chief Iustice My Iudgement is that the Iudgement is erroneous for we must not take meanings because we are bound up to proceed by the rules of the Law and Statutes and we are to consider here whether there be Latin words in the Declaration as there ought to be to expresse the things for which the Action is brought and certainly this word quoddam instrumentum ferri is too general to expresse any thing and the Anglice added to it will not help it for if the word precedent in it self be not fit Latin to expresse the thing the Anglice subsequent is litle to be regarded Anglice Declaration and these words being incertain the Declaration must be incertain and so the Defendant cannot know what to answer to it or how to defend himself as he ought to do which may prove very prejudicial to him Ierman Iustice Issue The issue cannot be certain if the Declaration be incertain and by the Common Law and Statute Law our pleadings must be Latin and where there are not elegant Latin words to expresse things we may use those which they call barbarous words if they be known for use makes a language and where there are no Latin words we may coyn words and add an Anglice to them and here the Declaration is as incertain also for the number of the things as for the nature of them for here is quaedam instrumenta ferri which may signifie any number be it more or lesse Nicholas and Ask ad idem And so the Iudgement was reversed nisi Antea Brian against Twite Pasc 1652. Banc. sup AN Action upon the Case was brought for speaking these words of the Plaintiff Arrest of Iudgement in an Action for words you are a whore and have plaid the whore with so many men you cannot number them upon not guilty pleaded and a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable for the saying the party had plaid the whore are words incertain and do not enforce any Act of whoredom to be done by her but Ierman Iustice gave Iudgement for the Plaintiff for he said the words should be construed to a common intendment THe Court was moved for Iudgement upon a verdict given 2 years since Motion for Iudgement denyed and the cause stayed till now by the Committee of indempnity but it was denyed because it was the last day of the Term. Nota. Pasc 1652. Banc. sup IT was shewed for cause why a certiorari should not be granted to remove an indictment of battery Certiorari to remove an endictment against an Attorney of his Court preferred at a Sessions of the peace in the Country that the bill was found there and the party hath entred into a recognisance there to go to a tryal the next Sessions Roll chief Iustice The recognisance may be also removed by the certiorari and what hurt can it be if the endictment be removed and the tryal had at the assises and if it be removed hither we will not quash the endictment but the party shall plead and carry it down and try it at the next assises at his own charge Byron against Stonehowse Pasch 1652. Banc. sup Trin. 1651. rot 1658. A Writ of Error was brought to reverse a Iudgement given in a writ of dower in the Common Pleas Error to reverse a judgment in dower in the common pleas the Errors assigned were that the Iudges of the Common Pleas had set a side the verdict given by default by the Iudge of
him Wild in Arrest of Iudgement takes these Exceptions to the Declaration 1. It saith that the Principal rendred himself in Execution to discharge his Bail and saith that afterwards he escaped whereby he could not have him in Execution which séems contradictory to what he formerly said 2ly He saith that he rendred himself to the Mareschall whereas he ought to say that he rendred himself to the Court for it is the Act of the Court that turns him over to the Mareschal Roll chief Iustice He cannot render himself to Sir Iohn Lenthal in discharge of his Bail Bail for only a Iudge can take and discharge a Bail and not Sir Iohn Lenthall but here it is that he did it in Court and therefore it is well enough for he may render himself to Sir Iohn Lenthall in Court though out of Court he cannot and therefore let the Plaintif have his Iudgement Rogers and Done Trin. 1652. Banc. sup Pasch 1652. rot 354. IN an Action of Trover and Conversion for 3 Cart loads of Dats Arguments upon a Demurrer to a Plea to the jurisdiction of this Court Barlie and Pease The Defendant pleaded a special Plea to this effect That the land where the Trover was supposed to be is 5 acres of land lying in B. and that is within the County Palatine of Chester and that he holds the land for term of years and by vertue thereof did sow and take the Corn thereupon growing and traverseth the Conversion out of the County Palatine and avers that there are Courts of Iustice held within the County Palatine so that Iustice may there be had and says that he ought to be sued within the County Palatine and not elsewhere and therefore demands Iudgement if he ought to be sued in this Court. To this plea the Plaintif demurred and shewed for cause that the Action being for a transitory matter it may be tryed out of the County Palatine as well as within although if it were for a local matter it would be otherwise and the party here hath pleaded not guilty which may be tryed any where Cooks Instit 282. In some Cases an Obligation hearing date at Chester may be sued in another place 19 E. 3. Fitz. Oar. 29.45 Ed. 3. Fitz. visne 50.9 Iac. C. B. Richardson and Meares a Battery in Chester tryable out of it 11 H. 4. f. 40. Crompton Iuriâ—diction of Courts f. 213. Transitory things emergent in the County Palatine of Chester may be tryed else-where 45 E. 3. f. 17. And so it was prayed the Defendant might plead over Serjeant Glyn on the other side held that this plea was a good plea to the Iurisdiction of the Court. Here are many matters of fact confessed and the matter in Law is whether the title of the land within Chester shall be tryed out of that jurisdiction In 31 Ed. 1. in the Exchequer it is clear they have conusance of Pleas. Roll chief Iustice to that answered but it is not that they shall not be removed thence Serjeant Glyn proceeded said that also upon a reference to 4 Iudges by Queen Elizabeth it was certified that all Actions real and personal arising in Chester are tryable there and not elsewhere 22 E. 4. Fitz. Iurisd 61. 21 H. 7. f. 23. 1 H. 7.26 10 H. 6.14 a H. 4. f. 25. As to the Objection that this is a clear personal Action and therefore transitory 1. I deny the authority of Cook in his 4 Institutes cited on the other side Next the Action here by the pleading of it is made real and then though Cooks opinion should be Law it comes not home to our case and a transitory action may be made real by the pleading of it 27 H. 6. f. 1. Hill 38 Eliz. Banc. sup Hill 2 Car. in Belamy and Bolthorps case in this Court 6 rep 14. A thing is tryable there where the best conusance of it may be had 6 H. 7. 3 2ly The averment of the party here is that all actions personal and real within Chester are tryable there and this being matter of fact is confessed by the Demurrer 9 H. 7. Porter Nicholls in the Exchequer 10 Car. And it would be a great inconvensence to try the title of lands lying within Chester out of it for so all causes real may as well be tryed in forein Counties even through all England which would be very mischievous Roll chief Iustice Tryall If we can avoid it it is not good to try causes in forein Counties but here you have by your demurrer confessed that all causes real and personal shall be tryed there and what say you to that 2ly Traverse Waiver Issue It is to be considered whether your Traverse be not repugnant to your Plea for you have waived the plea to the jurisdiction of the Court and put your self upon an issue by the traverse which you ought not to have done but you ought to have relyed upon your plea to the jurisdiction of the Court for as the traverse is taken untill a tryall be had in the cause we cannot tell whether the Trover and Conversion be within the County Palatine or out of it and this is matter of substance and tryable and therefore it would be hard to maintain your plea. At another day the case was argued again and first by Twisden for the Plaintiff and he took thrée things into consideration 1. Whether the plea were a meer plea to the jurisdiction 2ly Whether it be made good by the demurrer 3ly Whether the traverse have not spoiled the plea. 1. He held the plea was not good because the Action is meerly transitory and may be laid in any place 2. Mar. Br. traverse 983. Cooks Lit. f. 202. and the Defendant cannot plead that the cause of Action lyes in any other place than where the Plaintiff layes it Cooks Iurisd of Courts is full authority in point what ever is objected against it 30 H. 6. f. 6. I admit of the jurisdiction of the County Palatine but yet it must not entrench upon the Common Law and I admit all the books cited but they are of other local matters or of things transitory which are fixed to Chester by the pleading of them and Dyer 122 comes not to our case nor crosses the case of 10. Iac. 3. rep Ridgwayes case and here it shall be intended that the Iury may there have best conusance of the matter where the Action is laid and not else-where although the Action do savour of the Land For the second matter the demurrer makes not the plea good for the law sayes it is not good and the partyes cannot alter the Law Burtons case 5. rep f. 59. 5 H. 7.1 3ly The traverse makes not the plea good for the traverse is waived and he relyes upon another matter 5. Car. rot 817. Burton and Cornish the traverse taken took away the justification before pleaded so doth it here and the traverse here is not good because it is in a
have judgement though the Bar was not good Rawley and Vivers Trin. 1653. Banc. sup A Writ of Error was brought upon a judgement given in an Action of Trespass quare clausum fregit c. The Error assigned was Error to reverse a judgement in Trespass quare clausum fregit Value that the Plaintif did declare quare clausum fregit and for pulling down of his house but doth not shew the value of his house Roll chief Iustice It is not necessary the Action being a real action Affirmetur nisi Bariar and Windham Trin. 1653. Banc. sup IT was held by the Court that the Engagement taken before 2 Iustices of Peace in Ireland is well taken What engagement is well taken and that the Engagement ought not to be pleaded to an Alien born and subject to any forein Prince in amity with England because he is under another obedience and thereupon the Engagement pleaded to such an one was discharged in the Case of one Bariar and Windham Trin. 1653. Banc. sup ONe who was a witnesse in the cause for the Defendant being bail for him upon motion to the Court was taken off from the file Who may not be bail and another bail taken in his room in Court upon examination of his sufficiency Nota. Trin. 1653. Banc. sup THe Court was moved to dispauper the Plaintif in an Action of Trespass and Ejectment Motion to dispauper the Plaintif for that it was proved by Affidavit that he was a very vexatious person for he had béen thrice nonsute in this Action would never pay costs or make a sufficient Lessee able to pay them and had also sealed a general release to the Defendant Roll chief Iustice Let him be dispaupered and let him put in an able Lessee to pay the costs or otherwise he shall not proceed in his Action Trin. 1653. Banc. sup BY Roll chief Iustice Laws of England and Ireland all one Error The Laws of Ireland are all one with the Laws of England and a writ of Error lies in England to reverse a judgement given in Ireland Trin. 1653. Banc. sup A Declaration was filed in the Ofice against one in custody of the Mareschal What is not good notice to a prisoner of a declaration against him Iudgement discharged and a Copy of it was left with the Clark of the prison but the prisoner had no notice of it Vpon the prisoners shewing of this matter to the Court and reading an Affidavit to prove it a judgement by a nihil dicit obtained against him was discharged and ordered that the Plaintif should accept of a plea. Trin. 1653. Banc. sup THe Court was moved to discharge a prisoner out of the Vpper Bench that had lain there ever since 14 Caroli To discharge a prisoner that had long lain in prison upon a judgement obtained against him in an Action of Debt where only common bail was filed and because no execution was ever taken out upon that judgement and the Plaintif in the Action was now dead Roll chief Iustice Let him be discharged nisi causa shewed to morrow Nota. Trin. 1653. Banc. sup BY Roll chief Iustice Matter of Record not alterable without motion to the Court. A matter entred upon Record cannot be altered without a motion made and the Consent of the Court first obtained though the Attorneys on both sides consent to it Trin. 1653. Banc sup THe Court was moved to quash an Order of Sessions for one to pay 3.5 a week to keep a Bastard Child To quash an Order of Sessions Roll chief Iustice Let it be quashed for they can make no such Order for the party may keep the Child himself if he will and then he need pay no money to keep it Trin. 1653. Banc. sup BY Roll chief Iustice When the Venue may not be changed The Venue cannot be changed after a Plea pleaded in abatement of the writ much lesse after a plea pleaded in Bar. Q. Fanshaw and Bond. Mich. 1953. Banc. sup IN this Case it was said That if a Copyholder refuse to pay a reasonable fine or to be admitted to the Copyhold How a Copy-hold is forfeited This is a forfeiture of his estate Dekin and Turner Mich. 1653. Banc. sup VPon a motion in Arrest of Iudgement in an Action upon the Case for these words Thou art a whore and I will prove it Arrest of judgement in an Action for words It was said by Roll chief Iustice That the words are not actionable although spoken since the Act made against Adultery because they are but words of heat and choler but if a special damage be laid by the speaking of them as per quod maritagium amisit or the like there they are actionable Price and Goodrick Mich. 1653. Banc. sup IN this Case it was said by Roll chief Iustice Where an Audita querela lies If there be a Iudgement against three and one of them is taken in Execution and be afterwards set at large by the Plaintifs consent if any of the other two be afterwards taken in execution upon the same Iudgement he may have an Audita querela Motion but he cannot be relieved upon a motion in Court though grounded upon an Affidavit Newton and Osborn Mich. 1653. Banc. sup NEwton brought an Action of Covenant against Osborn an Executor to a Lessee for years for non-payment of rent reserved upon the lease upon the general words yielding and paying in the lease Whether an action of Covenant did Fe or not against an Executor there being no express Covenant therein for the payment of the rent The question was whether this Action did lie against the Executor Latch argued that it did not lie because it is a meer Covenant in Law comprised only in the words yielding and paying and not an express Covenant and so only binds the Testator but not the Executor But Roll chief Iustice answered That an Action of Covenant doth lie against an Executor upon a Covenant in Law Covenant Executor although he be not named but it is otherwise of an heir for he is not bound by such a Covenant And the reservation of the rent here doth seem to be an express Covenant for it is the agreement of both parties viz. of the Lessor and Lessee Iudicium nisi Benskin and Herick Mich. 1653. Banc. sup BEnskin brought an Action of Debt upon an Obligation against Herick A Plaintiff lost his mony by joyning false issue a Verdict against him The Defendant pleads that he tendred the mony due upon the Obligation at the day and place of payment and that the Plaintiff refused to receive it Vpon this the mony was brought into Court by rule upon the Defendants motion the Plaintiff joyns issue that there was no tender and refusal and upon this a Tryal was had and a verdict found for the Defendant that he did make tender and that the Plaintiff did refuse to receive the
Owner may devise and the Custom is that every Owner in fee-simple may devise and the Custom shall go to Land and holds to reversions as well as to lands in possession At another day it was argued that the devise was not good for the word Owners cannot extend to all sorts of Owners for it extends not to an Infant Owner of such Houses for he cannot devise therefore the words must receive a limited construction and therefore I conceive the word Owner extends only to an absolute Tenant in fee-simple and not to a reversioner in fee for a Custom must as hath been said be taken strictly 12 E. 4. f. 3.21 E. 4. f. 24. 2ly In true construction this Owner in fee in remainder shall not be said Owner but the Tenant in tayl is Owner and so here is not Owner ex vi termini 3ly Here is but a possibility of fee-simple in him which is not grantable or devisable 2 Ed. 4.1 and the Statute of Westm 2d helps not to the Custom for that Statute is within memory of man 26 H. 8. f. 4.22 Ass Pl. 78. And upon the very finding of the verdict it cannot be good for by the Verdict no title is found for the Defendant Latch on the other side held that here is a good devise warranted by the Custom for here is an Estate within the very letter of the Custom for he is true Owner of the House in fee-simple although it be not in present possession for he hath fee-simple in it and hath it to his own benefit in such an Estate as it is and the word Owner is a general word and comprehendeth all manner of Ownerships 2ly It is within the reason of the Custom for it intends the same benefit to Owners in reversion as it doth to Owners in possession and is indifferent unto all Estates And although a Custom shall be taken strictly yet it shall also be taken reasonably as having respect to the benefit of the party and there can be no reason alleged to be against this devise 26 H. 8.4 A remainder in fee shall go according to the Custom whether by the Custom Lands in fee shall go the Custom shall go to all things issuing out of the Land and so to all Estates in the Land Dyer 148. and here is more than a possibility devised 4 5 Phil. Mar. Benloes It is ruled that a fee-simple expectant shall go to the youngest Son by the Custom where the Custom was that the youngest Son should have the Lands of which his Ancestor dyed seised and as to the Verdict here is a good title found for the Defendant Roll chief Iustice The verdict is imperfect for the Ejectment is against Baron and Feme and the Feme is found Ejector by the verdict and nothing is found concerning the Baron Venire de novo therefore you must have a Venire de novo if you will not agree to amend the Verdict according to the notes if the notes will warrant it Afterwards a Venire de novo was awarded by consent Pendarvis and Saint Aubin Hill 1654. Banc. sup Trin. 1653. rot 723. IN an Action of Accompt the Defendant pleads ne unques receptor Plea before Auditors upon this an Issue was joyned and an imperfect verdict found and thereupon a Venire de novo was awarded and the Iury found for the Plaintiff and the Defendant adjudged to accompt before Auditors The Defendant pleads before the Anditors that he had delivered over part of the monies To this the Plaintiff demurs and shews for canse that this Plea is contrary to the Verdict for that is that he should accompt for all and here he would accompt but for part only Windham for the Plaintiff argued that this cannot be a good plea before Auditors in discharge of the accompt but it goes in bar of the accompt Dyer 196. 41 E. 3. f. 31.22 H. 6.25 and in Boynton and Cheeks Case lately in this Court such a Plea was adjudged not good And it would be michievous if it should be otherwise in reserving such matter to be tryed again Twisden on the other side said it is a good plea before Auditors to say that he received the monies to deliver over and there are four opinions in the Books how this matter should be pleaded â—o E. 3. Br. Acc. 8â— hold â— that this Plea is pleadable before Auditors and this plea is in discharge of the Accompt and therefore pleadable before Auditors 12 H. 4.18 and in Baynton and Cheeks Case cited the judgement was not given upon this point Roll thief Iustice The Books generally are that this plea is in bar of the Accompt Plea Bar. but here your plea of delivery over hath made it a plea in bar and it would be mischievous to plead it now for this would cause one and the same issue to be twice tryed and then there may be contrary Verdicts which would be inconvenient Therefore let judgement be for the Plaintiff Stavely and Ulithorp Hill 1653. Banc. sup AN Action of Debt was brought upon the Statute of 2 Ed. 6. for not setting forth of Tithes and a Verdict was given for the Plaintiff Arrest of Iudgement in an action for not setting forth of Tâ—hs It was moved in arrest of judgement that the Statute was mis-recited because it was not said the Parliament in which it was made was held by prorogation as in truth it was But Latch answered that it is not mis-recited for it is true that the Parliament was held upon the 9th of November Recital as we have alleged though we have not expressed it to be held by prorogation and we conceive it is not necessary to express it to be so held for the Presidents are contrary as in Cooks Entry tit Prohibition Roll chief Iustice The Parliament is not said to be begun and held but only to be held and therefore it is well enough Iudgement was given for the Plantiff nisi Postea Dorman and Snag Hill 1653. Banc. sup AN Action upon the Case was brought upon two promises Arrest of judgement in an Action upon two promises viz. to pay so much mony upon a certain day and 2ly to save the Plaintiff harmless c. Vpon issue joyned and a verdict found for the Plaintiff it was moved in arrest of judgement that the Plaintiff did not shew how the Defendant hath not saved the Plaintiff harmless but only sayes generally that he did not save him harmless and so he may bring another Action for the same thing The Court was then of opinion that it was not good to say generally that the Defendant did not save him harmless but he ought to shew in what particular as if I assume and promise to one to give him all the mony in my Purse I must shew how much mony was in it and aver that I gave it him At another day Sergeant Clark moved for judgement whom Latch seconded and said here is a good breach
the rule and he was ordered to pay the Iury. Nota. VValkenden and Haycock Mich. 1654. Banc. sup VPon a Verdict given for the Plaintif in an Action upon the case for these words spoken of a Millener in London Action upon the case for words viz. Thou art in a breaking and decayed condition and I will prove it and if you question me I will prove it to your disgrace Twisden moved for judgement for the Plaintif because he held the words are actionable for by the speaking of them the Plaintif is disgraced in his profession for in common understanding the words amount to as much as if he had said that the party is a Bankrupt and it is so averred in the Record and found by the Iury and he cited Mich. 1651 Tayler and Keisers case and Smith and Rookes case 24 Car. Wild on the other side said that the words are not actionable Adjective words for they are adjective words and of an incertain signification for the words may as well mean that he is broke or burst in his body as that he is a Bankrupt or broken in his estate and there is no averment that the words were spoken in the hearing of tradesmen and though they were yet they may not tend to his disgrace for a Tradesman may be in a decaying condition in respect of what he hath formerly been and yet have stock enough left to trade withall The Court then enclined that the words were actionable but for that time gave no judgement Iudgement but the case being moved again the same Term judgement was given for the Plaintif Lawrence and Harrison Mich. 1654. Banc. sup AN Action upon the Case was brought by Lawrence against Harison his Attorny for delivering a Fieri facias against him Action upon the Case for breach of trust in the sute wherein he was Attorney for him to the Vnder-Sheriff and procuring it to be executed against him contrary to the trust reposed in him Vpon not-guilty pleaded and a verdict sound for the Plaintiff It was moved in arrest of judgement for the Defendant by Windham That there appears not in the Record to be any combination between the Defendant and the Plaintiffs adversary against his Clyent and so no breach of trust appears to ground the Action upon 2ly Here being a judgement in the Case the sute in which he was entertained to be Attorny is ended and consequently the trust reposed in him is determined and so no breach of it for he is now discharged from being Attorney and the Plaintiffs averring the contrary doth not alter the Law and besides this delivery of the Fieri facias is in pursuance of Iustice which since that the sute is ended cannot be called a breach of trust Roll chief Iustice But you did not only deliver the Writ against your Clyent to the Vnder-Sheriff but did also procure it to be executed against him which shews there was a combination against him The only question is Whether a Warrant of Attorney determined whether the Warrant of Attorney be determined by the judgement given in the sute wherein he was retained and I conceive it is not for the sute is not determined for the Attorney after the judgement is to be called to say why there should not execution be made out against his Clyent and he is trusted to defend his Clyent as far as he can from the execution Therefore let the Plaintiff have his judgement Judgement nisi c. Roungs and Woodyard Mich. 1654. Banc. sup ROungs a Farmer in the Country brought an Action upon the Case against Woodyard for speaking these words of him Action of the Case for words against a Farmer You are a Beggar and a Banckruptly Fellow and if every one had his own you are not worth a Groat Sergeant Fletcher moved in arrest of judgement that the words are not absolute and positive words but are spoken adjectively and also they are not spoken of a Merchant or of one that gets his living by buying and selling and so are not scandalous for a Farmer cannot be a Bankrupt and here is no dammage to the party by the speaking of them Roll chief Iustice Particular dammage Though it appear not that the Plaintiff is a Tradesman yet here appears to be a particular dammage to him by the speaking of the words viz. that by reason of the speaking of them he was discredited with his Landlord and his Landlord had given him warning to be gone out of his Farm and it matters not though the words generally considered are not actionable Therefore shew cause Saturday next why the Plaintiff shall not have his judgement Iones and Graves Mich. 1654. Barc sup AN Action upon the Case was brought by Iones against Graves for entring upon the possession of a Term Action upon the Case for entring upon the possession of a Term. after he had recovered it by a verdict given for him Vpon not-guilty pleaded and a verdict for the Plaintiff it was moved in arrest of judgement that the Plaintiff hath not shewed that there was any Term continuing in him at the time of the Defendants entry into the Land for though the Term might have a continuance at the time of the recovery yet it may be ended at the time of the Plaintiffs entry into the Land 2ly It is not expressed when the entry was and so it appears not whether it was before or after the recovery so that it cannot be known whether the Plaintiff hath cause of Action or not Latch also doubted whether this kind of Action ought to be in this Case or not and whether he ought not to have brought an Action of Trespasse and not an Action upon the Case Roll chief Iustice Election of Action He may bring an Action upon the Case or an Action of Trespasse at his own election Wild on the other side held that the Declaration was good enough for by it there appears to be good cause of Action for the time of the entry is expressed viz. that it was after the recovery 2ly The entry is found to be vi armis which implies an unlawfull entry and so the Iury have found it to be Implication The disturbing a possession actionable viz. that he is put out of his possession recovered Roll chief Iustice Though the Plaintiff had no title yet he had a possession and it is actionable for the Defendant to disturb him Therefore let the Plaintiff have his Iudgement nisi c. Mathew and the Hundred of Godalming in Surrey Mich. 1654. Banc. sup IF a Carriers man or Son conspire to rob him and accordingly do it Action upon the Statute of Winchester against a Hundred Mitigation of dammages the Carrier not being privy to it The Carrier may bring an Action against the Hundred upon the Statute of Winchester for this robbery but this conspiracy may be urged in mittigation of dammages Per Roll chief Iustice In a
insufficient neither doth his contracting with him for money to execute the place for him any ways concern the corporation nor is it malum in se but is only punishable by the Statute of 5 Ed. 6. and as to the not trying of the issues joyned in that Court at the days they were to he tried upon this is no cause to deprive him of his place which is a freehold Freehold for few Stewards of Corporations do otherwise than he hath done for they usually stay till they have a competent number of causes to try before they will sit to try them and there appears to be but 5 causes untryed which is no great number neither doth it appear that be had any notice that these five were ready for tryal Notice and so here cannot be so great an offence as is supposed and he cited Semaigns case Rep. â—3 nor doth it appear that any tryal was disappointed by his absence for it appears not that any issue was ioyned in any of the causes or any warning given for tryal during the time that is surmised for him to neglect to fit in Court And besides though these were sufficient crimes for to deprive him of his place yet they have not proceeded against him in a legal way Illegal proceeding Defence for he was never called to answer the crimes objected against him but is deprived without hearing his defence which is illegal as Sir Iames Baggs case is Roll chief Iustice he ought to be heard what he could say for himself else how could it be known whether there were just cause to remove him or no and it is very hard to deprive one of his freehold without hearing him At another day Serjeant Twisden moved the Court for their opinion whether Bernardiston ought to be restored or no and answered the exceptions formerly taken much to the effect as Latch had done Whereupon Roll chief Iustice said you ought to have convented him before you put him out to hear what excuse he could make for his absence otherwise how could you know whether he had just cause or not for his absence Restored nisi c. Therefore let him be restored except cause be shewed to the contrary Saturday next Postea Edwards and Stiff Pasch 1655. Banc sup MEmorandum Tryal in Trespass and Ejectment Jury suffered to drink at the Bar. Vpon a tryal at the Bar in a Trespass and Ejectment between Edwards Plaintif and Stiff Defendant the evidence being long and the Weathet hot the Jury desired they might have drink which the Court granted but said they should have it at the Bar whereupon drink was sent for for them and they drunk it there before they went out to consider of the evidence Roll chief Iustice did then reprove the Attorneys and Sollicitors for the great charges they used to put their Clyents to in feasting the Jury Feasting of Iuries and ordered that thenceforth no more thon 3 s. 4 d. should be allowed to any Iuryman to pay for his dinner Nota. Pasch 1655. Banc. sup VPon an Affidavit read in Court For a new tryal Death of a Witness that a material witnesse in the cause that was served with a subpoena to give his testimony at the tryal and dyed before the tryal The Court was moved on the Defendants part for a new tryal but the Plaintif opposed it much insisting upon this that there was no miscarriage on his part Whereupon Roll chief Iustice answered here is the Act of God in the Case Act of God which cannot be resisted and this tryal is final to the Defendant Therefore if the Plaintif will not consent to take his costs New tryal paying costs and goe to a new tryal we will not be hasty to give judgement but will advise upon it The Protector and Gunter Pasch 1655. Banc. sup THe Court was moved to quash two Endictments for continuing of purprestines in the high way To quash two Endictments and it was urged by the Councel that there were 4 Endictments preferred against his Clyent two for erecting the purprestures and the other two for the continuing of them and upon a tryal we were found not guilty of the erecting them and therefore we cannot be guilty of the continuing of them and he took this exception to the caption of the Endictments viz. That it is said that the Endictments were preferred at the Sessions held at East Grinsteed in the County of Sussex where it ought to have been at the Sessions of the Peace held at East-Grinsteed for the County of Sussex Roll chief Iustice answered You may be guilty for continuing of that which another did erect and not you but if the erecting and continuance be mentioned in one and the same Endictment you cannot be guilty Denied But plead to them for no such thing appears in the Record but only that you kept the Highway stopped but says not who stopped it Pasch 1655. Banc. sup THe Court was moved to quash an Endictment grounded upon the Statute of 5 Eliz. preferred against one for using the Trade of a Draper To quash an Endictment not having served as an Apprentise in that Trade according to the Statute upon these 2 Exceptions 1. It is said he used the Trade in the year 1653. and doth not say the year of our Lord. 2ly It is not said that the Iury was returned nor whence they were and both exceptions were held good by Roll chief Iustice and the Endictment was thereupon quashed Quashed Pasch 1655. Banc. sup THe Court was moved to quash an Endictment against one Peers To quash an Endictment upon the Ordinance against Duels for speaking provoking language to one contrary to the late Ordinance of the Lord Protector and his Councel upon these Exceptions 1. It is said the Endictment was at the Sessions held at A. and doth not say in what County 2ly It is said by an Ordinance of the Protector made such a day and doth not say in that case provided Quashed And upon these Exceptions it was quashed Pasch 1655. Banc. sup THe Court was moved for a tales to a Northumberland Iury returnable this Term because but 8 of the panel returned did appear For a tales But Roll chief Iustice answered Take it returnable in Michaelmas Term next Return of a tales but this Term you cannot have it VValdron and VVard Pasch 1654. Banc sup IN a tryal at the bar between Waldron Plaintif and Ward Defendant Tryal at Bar. A Counceller at the Bar examined as a witnesse One Mr. Conye a Counceller at the Bar was examined upon his Oath to prove the death of Sir Thomas Conye Whereupon Serjeant Maynard urged to have him examined on the other part as a witness in some matters whereof he had béen made privy as of Counsel in the cause But Roll chief Iustice answered He is not bound to make answer for things which may disclose the
demurred to the plea Demurrer and for cause shews that it doth not appear that the three Iuggs of Beer were paid or tendred by the Defendant Iudgement and upon this exception judgement was given for the Plaintif c. MEmorandum Trinity Term 1655. beginning the 15 of Iune being Friday Iustice Ask late alone in the Court of the Vpper Bench being then the sole Iudge there The late Lord chief Iustice Roll having surrendred his Patent the Tuesday sevenight before being the 5 of Iune as I was enformed MEmorandum Afterwards the same day Iohn Glyn his Highness the Lord Protectors Serjeant at Law took his place of Lord chief Iustice of England in this Court and the Lord Lisle one of the Lords Commissioners of the great Seal of England made a Speech unto him according to the Custom and Serjeant Twisden moved for a tryal at the Bar the next Michaelmas Term which was granted nisi c. The Protector and the Town of Colchester Pasch and Trin. 1655. Banc. sup VPon a Mandamus to the Bailifs of Colchester to restore Bernardiston to the Recorders place of that Town Exceptions to a return of a Mandamus to the Town of Colchester upon the return they certified the causes for removing him and why he ought not to be restored 1. That one Good all being endicted upon the Statute for having two wives and convicted thereof did pray his Clergy and was refused it by Bernardiston and was condemned to die and after at another Sessions he admitted him to his Clergy and so he was burnt in the hand 2ly That he neglected to sit at the Sessions whereby the Sessions for the Town could not be held duly as they ought to have been 3ly That he appointed a Deputy Recorder to execute his place for him who was not an utter Barrester and contracted with him for 40 l. per annum 4ly That he neglected to hold Courts whereby causes could not be tried to the prejudice of many Latch of Councel with Bernardiston to the first cause answered That although it was an Error in Iudgement to deny the Clergy where it should have been granted yet this was not committed as he was Recorder of the Town but as a Commissioner of Oyer and Terminer which was to endure but for a year and was a distinct power from his power as he was Recorder and executed by him with other Commissioners that were joyned with him in Commission To the second he answered that here doth not appear to be any prejudice to any by his not holding the Sessions nor that there was any cause to hold them and besides it doth appear that the Sessions where he neglected to sit were not legally appointed to be held for they were appointed by them that had no authority to do it viz. by the Maior and Baylifs whereas they ought to be appointed by the Maior Baylifs and Recorder and next the Iustices are mis-named for they are called the Iustices of the Borough whereas they ought to be called the Iustices of the King 4ly Here doth not appear any appointment at all of the Quarter Sessions To the 3d. he answered that it is not necessary that he should appoint a Barrester to be Deputy-Recorder and to say that he was not fit to be Deputy-Recorder is too general a charge but it ought to be shewed in what he was unfit and his contracting with him for mony concerns not the Coporation neither is it malum in se but is only punishable by the Statute of 5 Ed. 6. And as to the last viz. his neglecting to try the issues joyned at the daies appointed it is not a crime material to deprive him of his free hold and few Stewards do otherwaies for they do usually stay till they have a competent number of Causes to try before they will sit and here are but six causes alleged to be untryed and one of them was not tryable in that place nor is it averred that he had notice given him of any issues to be tryed and so the offence is the less 5 Rep. Semaignes case nor doth it appear that any tryal was disappointed by his absence for it appears not that there was any issues joyned or any warning given for tryal in any of the Causes during the time alleged wherein it is said he did for bear to sit to try them Lastly here is no just way of proceeding to deprive him of his place though he might be deprived for he was never summoned to appear to answer the matters objected against him as he ought to have been and so is Cook in Sir James Baggs case Sergeant Glyn on the same side insisted only upon the last matter urged by Latch which he said went through the whole Case Roll chief Justice He ought to have been heard how else can it be known whether they had just cause to remove him or not and it is very hard to deprive one of his free-hold without hearing him make his defence The Court was moved at another day for their opinion and then Sergeant Twisden endeavoured to answer some exceptions taken to the retorn by Windham and to make good the exceptions taken against Bernardiston much to the same effect as formerly Whereupon Roll chief Justice answered you ought to have convented him before you had put him out that you might have heard what excuse he could make for his absence else how can it be known whether he had a just cause of absence or not Therefore let him be restored nisi Iudgement nisi c. At another day being in Trinity Term 1655. Sergeant Maynard shewed for cause why he ought not to be restored 1. That he held not the Courts duly but did absent himself for sixteen months without any cause to the endangering of the forfeiture of the Charter of the Town and sâ—â—d that if an Officer of Record do wilfully and without cause absent himself from his Office it is a for feiture thereof for by so doing the Charter is forfeited Forfeiture of an Office and here is no supposition of any excuse 2ly The retorn is good though no notice was given him for he ought to take notice of himself as he is an Officer of that Court and endict him they cannot and if his offence be true de facto they may put him out of his place as a Master may put away his Servant and this their Charter warrants them to do Twisden on the same side said he hath contracted with another for his place and so is disabled by the Statute Wild He could not be here convented for it is expresly said that he went to unknown places Glyn chief Iustice The main business insisted on was his absence but here was no notice given to him and you ought not to proceed against him and never hear him though the crime objected against him be true for it may be he was sick or had some other just excuse for his absence and
he ought also to be heard to all the other crimes objected against him Therefore let him be restored nisi c. to morrow Iudgement nisi Howard and Howard Trin. 1655. Banc. sup MY Lord Howard being taken by a Latitat out of this Court appeared upon the day of the retorn of the Writ in Court Peerage pleaded and pleaded his privilege of Péerage and demands in judgement of the Writ and thereupon to be discharged Powis of Councel against him moved that he might put in special bayl Bayl. Demurrer Glyn chief Iustice You ought to demur to his Plea for he is now in Custodia and therefore he need not put in bayl Nota. The Protector and Norrice Trin. 1655. Banc. sup NOrrice being committed to prison for speaking words against the Parliament in the year 1650. was thereupon endicted To discharge a Prisoner upon the Act of Oblivion and was convicted and fined 100 l. and ordered to lye in prison untill he could find Sureties for his good behaviour afterwards he was brought into Court by vertue of a Habeas Corpus and his Councel moved on his behalf that he might be discharged because he was pardoned by the Act of Oblivion It was urged against this for the Protector that he may be a person excepted out of the Act Surmise and therefore ought not upon this surmise to be delivered Glyn chief Iustice It doth not appear to us that he is not excepted and therefore we cannot deliver him Thereupon it was moved for the Prisoner for a Certiorari to remove the Record hither Certiorari Entry whereby he stands convicted that he might enter the suggestion upon it that he is pardoned by the Act. Glyn chief Iustice Taxe it Webberly and Sir John Lenthall Trin. 1655. Banc. sup THe Court was moved for Webberly against Sir Iohn Lenthall Motion against Sir Iohn Lenthall for detaining a Prisoner discharged Action mony False imprisonment Endictment that whereas he being a Prisoner in the Vpper Bench prison for Debt and having agreed with his Creditors was discharged by them yet Sir Iohn Lenthall did keep him Prisoner till he should pay him Action mony Glyn chief Iustice You have two remedies against Sir Iohn Lenthall for this for either you may bring your Action of false imprisonment against him or you may endict him for extortion Yet let Sir Iohn shew cause why he should not discharge him paying his fees Strowd and Keckwith Trin. 1655. Banc. sup Mich. 1653. rot 119. STrowd brought an Audita querela against Keckwith Audita querela The Case was this Strowd acknowledged a Iudgement 17 Car. for 2000 l. upon which Iudgement an Elegit was taken forth against Strowds lands in the County of B. and lands thereupon were found and extended and delivered to the Counsee and the Elegit filed and the lands enjoyed accordingly for six years then the Counsee dies and makes his wife Executrix who takes out a Scire facias upon the Iudgment for 2000 l. directed the Sherif of the County of C. being another County and upon two Nichils retorned hath judgment and execution against Strowd for the same Debt who thereupon brings his Audita querela Wadham Windham held that the Audita querela did lye and cited 15 H. 7.7 L. Q. f. 40. and said this was an illegal proceeding against Strowd because that after an Elegit executed no other execution lies but where there bath been no execution of lands in the same County or in another upon the first Elegit but here is land found Execution and the Elegit filed and the lands enjoyed Elegit to divers Counties No Elegit after an Elegit Iudgement 18 E. 12. Fitzh tit Execution 240. Dyer 1â—2 an Elegit may be prayed to divers Counties Glyn chief Iustice The Case is adjudged in Hobardâ— Reports that one cannot have an Elegit after a former Elegit if lands be thereby found and the Elegit filed Therefore shew cause why judgement shall not be given for the Plaintif Price and Carr. Hill 1654. Banc. sup PRice brought an Action upon the Case against Carr for speaking these words of her A pox upon you for a Welsh whore Arrest of judgement in an Action on the Case for words for thou wentest into the Country and emptiedst thy Caâ—k of a Bastard After a verdict for the Plaintif it was moved in arrest of Iudgement that the former words videlicet the saying the was a VVelsh Whore are not actionable because no Action lyes at the Common-law for calling a woman Whore and the last words are uncertain words and less actionable The judgement was then stayed till the Plaintif should move Whereupon at another day the Plaintif moved for judgement and a Case in 1â— Iac. in this Court was cited and 41 Eliz. VVheeler and Aâ—â—gâ—ls case and it was urged that the words shall be interpreted according to common intention and understanding of the hearers and shall be adjudged very scandalous Wild on the other side said they are frivolous words and not to be regarded for they do not say positively she is a Whore nor that she had a Bastard but the words are of a very uncertain meaning for it appears not when the words were spoken or when she went into the Country nor is there any averment what is meant by the words Glyn chief Iustice Words actionable Now since the Act the calling of a woman Whore and saying the had a Bastard will bear an Action and here are words certain enough to fix a particular Scandal upon the party by application of the words and they are made more than general words or words of heat and passion for there is a general application of them and a sufficient averment and for the time of speaking them we will not presume they were spoken four years since which was before the late Statute made against Adultery Iudgement Therefore let the Plaintif have her Iudgement Davis and Matthews Pasch 1655. Banc. sup THe Case was this Bond put in sure in the Prerogative Court There being a controverste in the Prerogative Court between the Widow of one that died intestate and one of the intestates next kindred who should have Letters of Administration of the goods and Chattels of the Intestatè It was at length agreed betwixt the parties that the widow should have Letters of administration and that thereupon she should enter into Bond in the prerogative Office to make an equal distribution of the goods and chattels of the intestate amongst his kindred whereupon Letters of Administration were committed unto her and she afterwards entred into bond accordingly and for not performing the condition of the bond in making an equal distribution of the estate the bond was put in sute in the prerogative Court Prohibition upon which a prohibition was prayed and a rule thereupon made for the Defendant to shew cause why it should not be granted and af
the day it was offered for cause that there ought to be no prohibition because where an administration is granted to one unto whom the Ordinary is not bound by the Statute to grant it as it is in this case there the Ordinary may take a bond of the party with condition to make an equal distribution of the goods but otherwise it is where Letters of administration are granted to one to whom by the Statute they ought to be granted and one Sharp and Sympsons case 14 Iac. was cited Ordinary and Hob. 191. On the other side it was urged that the Ordinary hath no authority to take such a bond for the equal distribution of the goods and the difference put on the other side was denied and it was said that when the Ordinary hath once committed the Letters of Administration to the party Power determined Administration upon condition his power is then determined and he cannot grant Letters of Admistration upon Condition Glyn chief Iustice The taking of the Bond is against the Statute for the wife ought to be preferred before the next of the Kin notwithstanding the Statute and so is the common practice except there be a special cause for the contrary as where the wife hath had a former provision made for her by her husband Prohibition granted c. Therefore let there be a prohibition nisi Trin. 1655. Banc. sup THe Court was moved on the behalf of an Infant to discharge a Guardian assigned by the Court To discharge a Guardian with an intent to make Richard Somers Attorney of this Court Guardian in his room and that the former inspection may be discharged Inspection and that the infant may by now inspected again because when the former inspection was and the Guardian assigned there was no action depending in Court against the Infant Glyn chief Iustice Let it be so for the cause you have alleged and give notice of it to the former Guardian Sherlock Trin. 1655. Banc. sup rot 1320 or 1315. ONe Sherelock a Widow of the Parish of Earth in Sussex Error by an Infant to reverse a fine an Infant brought writ of Error to reverse a fine levied by her of her lands whilst she was a Covert Baron and the Court was moved that she might have a Guardian assigned her to prosecute for her and that she might be inspected by the Court Inspection and that the inspection might be recorded and there was an Affidavit made by one in Court that he knew the Infant who was there present and the time of her birth and baptising and swore the times precisely the Church book was also produced in Court and proved by Oath wherein the time of her baptising was entred and that she was the same person upon which she had by her own election Aâ—twood an Attorney of this Court assigned for her Guardian Guardian assigned Entry and the Affidavits were ordered by the Court to be recorded and the inspection to be entred and a scire facias awarded against the heir The Protector and Craford Trin. 1655. Banc. sup VPon a return of a Mandamus directed to the Master and Fellows of Gonvile and Cayus Colledge in Cambridge A Mandamus to restore one to an Ushers place in a Free-school and the return and exceptions to 〈◊〉 Au hority Notice Action at Law Extraordinary course to restore one to an Ushers place of a Free-school in Cambridge of which they are visiters It was excepted against it that they had not shewed that they had any authority to deprive the party of his place And 2ly It doth not appear that they gave him any notice of their proceedings against him whereby he might prepare to defend himself Serjeant Twisden made question whether a Mandamus did lie in this case because a School masters place is a temporal Office and an Action at the Law lies for the party to recover it and therefore it seems a Mandamus which is an extraordinary course ought not to be granted and he rited 8 Ass and Sir Iames Bags case and Dyer 200. and said it is not like an Office without see Latch on the other side answered The Mandamus is allowed already and the legality of it is not now to be disputed and Sir Iames Bags case is not repugnant to this case for this is a publique office and not a private and tends much to the publique good Office publique private and is like to the case of an Alderman or Freeman of a Corporation or a Fellow of a College Glyn chief Iustice A Mandamus to restore one to a Churchwardens place hath been adjudged good It is true that for a private office a writ of restitution doth not lie but if the publique be concerned in the office it doth lie and though it be an office with a fee belonging to it that makes no difference for a Recorders place is an office with a fee and yet a writ of restitution lies for it But it appears here that the Schoolmaster hath much abused himself and therefore we will advise Writ of restitution Office with and without a Fee Mandamus Freehold At another day this case was moved again and then Glyn chief Iustice said I doubt whether a Mandamus doth lie in this case for it lies not for every taking away of a mans freebold as in the cases of a Keeper of a Park or a Stewardship of a Court Baron Wild questioned to whom the Mandamus could be here directed for he said that the Master and Fellows are no Corporation and he cited Boremans case of the Middle Temple Corporation Innes of Court voluntary societies who prayed a Mandamus to be restored to that society where it was held that the Innes of Court are not Corporations but only voluntary societies Latch on the other side said that it was very proper to have a Mandamus in this case for it is a publique office and not a private as a Keepers place of a Park or a Stewards place of a Manor are Iurisdiction and a Steward of a Court Leet is a publique Officer And this Court hath jurisdiction to reform all grievantes of this nature and to keep other jurisdictions in good order that they do not intrench one upon another here is no Visiter to whom the party may appeal and it were very unreasonable to leave him without remedy and Mandamusses have been granted for places of less consequence than this as in Pasch 2 Car. a Mandamus was granted to restore one to the place of Town Clark which is a private office and 19 Iac. a Mandamus was granted to restore one to a common Clarks place of a Will and 5 Car. and 18 Car. to restore the parties to Parish Clarks places And if the place be publique this Court will not leave the party to seek his remedy at Law and Alderman Estwicks case is well known who was restored to the place of a
the Record It was said that a challenge to the array is no part of the Record but ought to be determined whether it be good or not by the Iudge before whom the tryal of the Cause should have been By whom to be determined Demurrer to a challenge if the challenge had not been taken and so hath it been ruled upon serious advise in the Common-pleas and it was then likewise said if there be a demurrer to a challenge at the Assises the Iudge of Assise may determine it there or over-rule it or adjourn it to be heard at another time Somes and Sir John Lenthall Mich. 1655. Banc. sup THe Court was enformed that an Action of Debt was formerly brought against Sir Iohn Lenthall and that there was Iudgement For Sir Iohn Lenthall the Mareschall to appear that he might be in execution and an execution thereupon taken out against him but that he abâ—conded himself that be could not be taken and therefore it was prayed in regard he was an Officer of this Court that the Court would order him to appear here that he may be committed in execution to the Sherif of Middlesex But Glyn chief Iustice answered if Sir Iohn Lenthall do appear here and you pray him in execution we can commit him to no other prison but the Marshalsea for that is the prison of this Court and to commit him to that prison of which he is the Kéeper without securing the Prisoners there before we do it will be an escape in Law of all the Prisoners Therefore let Sir Iohn shew cause why he should not pay the Debt for it is neither for his own credit nor the honor of this Court that he should not satisfie his Debts Fardres and Prowd Mich. 1655. Banc. sup HArdres brought an Action upon the Case against Prowd Arrest of judgement in an action upon the Case upon a promise and declared that whereas he at the instance and request of the Defendant had taken pains to reconcile differences betwixt the Defendant and I. S. and others the Defendant did assume and promise unto the Plaintif to pay unto him 100 l. at a certain day and for not paying the mony accordingly he brings his Action And upon non-assumpsit pleaded and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement 1. That here is no consideration set forth in the Declaration to ground the promise upon for it is only said that in consideration that the Plaintif had taken pains c. Consideration executed he did promise c. and this is a consideration executed and not sufficient to ground a promise upon and one Hunt and Dier case was cited for proof 2ly He doth not shew what pains he hath taken and so it cannot be known whether his pains were sufficient to ground the promise upon 3ly He sayes that he took pains to reconcile differences betwixt the Defendant and I. S. and others and doth not shew who these others were The two last exceptions were over-ruled without speaking to and to the first VVild answered that here was a continuing consideration Continuing consideration though the pains taken were past for it is said he took the pains at the instance and request of the Plaintif Glyn chief Iustice It is as you say Voluntary curtesie for here is more than a voluntary Curtesie upon which no consideration for a promise can be grounded for the pains here were undertaken at the instance of the Plaintif Iudicium nisi c. Mich. 1655. Banc. sup BY Glyn chief Iustice Where one may appear by Attorney where not If one come in upon the Eâ—igent he may appear by his Attorny but if he come in upon the Outlawry he must appear in his proper person and not by his Attorny and so is the constant practice of the Common-pleas and of this Court also Nota. London and VVilcocks Mich. 1655. Banc sup LOndon brought an Action of Trespass against VVilcocks inter alia Arrest of judgement in Trespass for taking and carrying away 40 loads of Corn in the Straw Vpon a verdict found for the Plaintif it was moved in arrest of Iudgement that the Declaration was uncertain for the Plaintif had declared for 40 loads of Corn in the Straw and it doth not appear whether they be Horse-loads or Cart-loads or what other loads of Corn they are But Glyn chief Iustice answered that it is well enough expressed for it being of Corn in the Straw it shall be intended Cart-loads and therefore let the Plaintif have his Iudgement Judgement Q. If the Action had been laid in the County of Cornwell where it is usual to carry Corn in the Straw upon Horses whether the Declaration would have been good VVood and Gunston Mich. 1655. Banc. sup WOod brought an Action upon the Case against Gunston for speaking of scandalous words against For a new tryal in an action of Trespass for 〈◊〉 words and amongst other words for calling him Traytor and obteyns a verdict against him at the Bar wherein the Iury gave 1500 l. dammages Vpon the supposition that the dammages were excessive and that the Iury did favour the Plaintif the Defendant moved for a new tryal But Sergeant Maynard opposed it and said that after a verdict the partiality of the Iury ought not to be questioned nor is there any Presidents for it in our Books of the Law and it would be of dangerous consequence if it should be suffered and the greatness of the dammages given can be no cause for a new tryal but if it were the dammages are not here excessive if the words spoken be well considered for they tend to take away the Plaintifs estate and his life VVindham on the other side pressed for a new tryal and said it was a packed business else there could not have been so great dammages and the Court hath power in extraordinary cases such as this is to grant a new tryal Glyn chief Justice Discretion of the Court. Discretion Judicial Arbitrary The Court not to be intended partial It is in the discretion of the Court in some cases to grant a new tryal but this must be a judicial and not an arbitrary discretion and it is frequent in our Books for the Court to take notice of miscariages of Iuries and to grant new tryals upon them and it is for the peoples benefit that it should be so for a Iury may sometimes by indirect dealings be moved to side with one party and not to be indifferent betwixt them but it cannot be so intended of the Court wherefore let there be a new tryal the next Term and the Defendant shall pay full Costs and judgement to be upon this Verdict to stand for security to pay what shall be recovered upon the next verdict Granted The Protector and Buckner Mich. 1655. Banc. sup BUckner was endicted upon the Statute of 1. Iac. Special verdict upon an endictment upon the
case the Action was not brought till after the party tryed But it is objected that the Trespasse here is brought for the same fact for which the party was tryed and therefore it is unreasonable that he should be doubly punished for it To this I answer that it was at the parties election at the beginning either to endict him or to bring his Action of Trespasse Hudsons case 4. rep 43. And here the party hath made no election for the party was endicted at the sute of the Common Wealth and not at the prosecution of the party and so he hath made no election untill now And if the Action might not be brought it might prove very mischievous for the party might get himself indicted and so cousen him that is robbed of this mony Dyer 50. â— rep 13. And the highness of the nature of the endictment doth not drown the Action of Trespasse although that treason doth drown Felony R. 3. 6 H 7. 5. And although the monies here stollen be for feited to the State by the conviction of the Felony yet an Action of Trespass lyes against the Felon to cause him to render damages pro tanto although he cannot recover the mony in specie And the special verdict doth not find that any evidence was given for the Plaintiff upon the endictment but only for the State And for authority he cited Markham and Cobs case Trin. 2 Car. Entred 1 Car. rot 112. Roll chief Iustice said That Iustice Doderidg and Iustice Whitlock held that the Trespass lyes Trespasse But Iustice Iones held the contrary because if the party robbed might have his election either to endict the Felon or to bring his Action of Trespass many Felonies would be smothered and this would prove very dangerous and though the party robbed had endicted the Felon he might have had his goods or he might have brought an appeal against him and so there is no inconvenience to him 4 Iac. In Higgins case it was adjudged where an Action of Trespass was brought by the Husband for beating his wife by reason whereof she dyed that the Action did not lye because it was Felony Ierman Iustice differed from Roll chief Iustice and said that the inconvenience on the other side would be greater than is alleged if the Felon shall so take advantage of his one wrong and in 2 Car. it was held that the Action doth lye Roll chief Iustice said if the Felon have not wasted the goods when he is hanged the party shall have restitution but if he have wasted them Restitution and hath other goods he shall have restitution in value But let Wild argue it again the next Term. Accordingly it was again spoken too by Wild who argued that the Action of Trespass did not lye first because the party did not make fresh sute after the Felon according to the Statute 21 H. 8. which was made to encourage the prosecutor but the party hath not prosecuted here and it is all one to recover damages for the goods and to recover the goods themselves so that I conceive that is no difference And the great inconvenience which might come to the Common-Wealth if the Action should lye doth countervail the damage that may accrew to the party if the Action lye not And it matters not that it is said the Trespass is a distinct offence from the Felony for it is drowned in the Felony and therefore the party can have no satisfaction for it Mich. 21 Iac. Ayers and Higgins case C. â— 31 H 6. Bâ— 15. trespasse 415. 4. Iac. Higgins and Butchers case B. R. Roll chief Iustice This is after a conviction and so here is no fear that the Felon shall not be tryed Bat if it were before conviction the Action would not lye for the danger the Felon might not be tryed And there is no inconvenience if the Action do lye and since he could not have had his remedy before he shall not now lose it and now there is no danger of compounding for the wrong the rest of the Iudges agreed with Roll and so Iudgement was given for the Plaintiff Ellis and Pipin Mich. 1652. Banc. sup THe Court was moved that an outlawry might be discharged Motion to discharge â—n outlawâ—y because it is now pardoned by the Act of oblivion for notwithstanding it were not pardoned if it were an outlawry after Iudgment except the monyes due for which the party is outlawed be payed to the party as the book of 6 H. 7. f. 21. is yet outlawryes before Iudgment are pardoned and besides the parties here did submit to an arbitrement touching the matters in difference between them and an award is made But the Court answered that the outlawry cannot be discharged untill the party have brought his scire facias upon the Act Scire fâ—cias Interest and it was also said that the party at whose sute another is outlawed hath an interest by the outlawry as well as the State Prior and Hale Mich. 1652. Banc. sup A Letter of Attorney for one to appear to an Action is good enough by paroll to support a Iudgement given thereupon A letter of Attorney by paâ—oll good to some intent By Pinsent protonotarie of the Common Pleas. Nota. Fowke and Boyle Mich. 1652. Banc. sup FOâ—ke brought an Action upon the case against Boyle Demurrer to a Declaration in an Action on the case for selling of false bills of publique faith unto him to the value of 800 l. the Defendant demurred to the Declaration and took these exceptions to it 1. That the ordinance of Parliament upon which these bills of publique faith were grounded was misrecited for it is said to be made by both houses whereas it ought to be by the Lords and Commons 2ly The Aldermen who were authorised by the ordinance to give these bills of publique faith are not named by their Christian names but only Alderman such a one naming the surname 3ly There is 70 l. expressed to be paid as is mentioned in the papers and it is not expressed at what time or place as it ought to have béen 16 E. 4. f. 3. and 28 H. 6. f. 3. 4ly Here is an assignment set forth to be made in due form of Law but doth not shew in what maner 10. Iac. Mich. Glass and Gowr in this Court Latch on the other side said that the mentioning of the ordinance and of the Aldermen was but inducement to the Action and there is no necessity to call the Aldermen by their Christian names but as they are called in the Ordinance nor is it necessary to shew how the assignment was made and these words are the words of the party nor is it needfull to shew how the monies were to be paid Roll chief Iustice The cause of the Action is the desceit in assigning the false bills and affirming them to be true Inducement and all the other matters are but matters of inducement and by way
of recital and not material and you have confessed the deceit by your demurrer and therefore let the Plaintiff have his Iudgement nisi Vpon which rule Baâ—ington at another day moved the matter again and urged that here was an assignment of papers mentioned which could not be for that it is a thing in Action which is not assignable nor can the Ordinance of Parliament give authority to assign a thing in Action Roll chief iustice Assignment The ordinance of Parliament doth give authority to assign the papers Latch the paper may be assigned Green The Action is brought for the deceit grounded upon the ordinance and it is not necessary for the Ordinance to name the Aldermens Christian names and these may be true bills though not subscribed which is the deceit here alleged Twisden on the other side said that the acquâ—ittance is in nature of a bill according to the intent of the Ordinance for it is not only an acquittance of discharge but to recover monies upon them and so the Defendant calls them and by the assignment the paper is assigned and the Action is grounded on the deceit and not upon the Statute Iudgement was given for the Plaintiff Burcher and Orchard Mich. 1652. Banc. sup BUrcher brought an Action upon the Case for words Arrest of judgement in an Action on the case for words against Orchard and his wife the Iury find that the Baron was guilty but that the Feme was not guilty Wadham Windham moved in arrest of Iudgement because that the Action is joynt and one of them is found not guilty and said it might have been otherwise if the Feme had been found gvilty and the Baron not guilty and cited 9 Ed. 4. f. 51. Yard on the other side said that the verdict hath made this exception good and if the Defendant would have taken any advantage of it he should have demurred to the Declaration Roll chief Iustice denyed the difference taken by Windham and said if any of the Defendants spake the words and be found guilty the Action will well lye and it is all one here as if the Defendants were two strangers the Action being joynt but the doubt is whether it being after a verdict this matter may be offered in arrest of Iudgement At another day Hales moved for Iudgement and said it was all one if any of the Defendants be found guilty as if both of them were found so and although it do appear by the Declaration that the Action could not be brought joyntly against them both because the wrongs are several and now one is found guilty and the other is acquitted 8 Ed. 4. f. 21. 11 H. 4. f. 5. 9 E. 4. f. 1. and damages are assessed against one only And now the verdict hath madei the Declaration good otherwise it had béen if both had been found guilty and entire damages given against both joyntly Latch on the other side said that the speaking of the words cannot be a joynt Act and therefore ought not to be so laid in one Declaration for they are severall Acts and severall offences as the words do proceed from them severally and this case is not like the case of a decies tantum nor the case of a joynt endictment against two for a joynt endictment shall be accompted as severall endictments and here if the Feme had been found culpable perchance it might have béen good because though the wise only speak actionable words yet the Action ought to be brought against the Husband and the Wife Roll chief Iustice The Declaration is not well laid for this cannot be a joynt speaking of the words by the Husband and Wife and therefore they ought not to be joyned in the Action therefore there ought to be several judgements and damages if you recover viz. One against the Husband another against the wife but here is a verdict found which helps it and this case is all one with the Case of 9 Ed. 4. for there the Declaration was not good as it is not here and here is not a verdict against both but only a discharge and he cited Rethorick and Chappels case where an Ejectment terrae haered is did not lie yet there by releasing of damages to the heir judgement was given for the land and here might have been a release of damages as to the wife if both had been found guilty but here in effect is a judgement but against one of the Defendants Ierman Nicholas and Ask Iustices to the same effect and so judgement was given for the Plaintif Luddington and White Mich. 1652. Banc. sup Mich. 1651. rot 458. LUddington brought an Action of debt upon a bill against White Demurâ—er to a plea in debt up on a Bill the Defendant pleaded that after the money became due he and the Plaintif did by parol submit to an award and that there was an award made that the Defendant should pay 8 l. to the Plaintif at such a house and thereupon the Plaintif should give him a general release and accordly he tendred the money to this plea the Plaintif demurred and for cause shewed that here is a submission by paroll pleaded after the day of payment expressed in the Bill which is not good being by paroll to discharge a debt due by specialty Discharge But Wild answered here were other things submitted besides this and that may make the submission good Roll chief Iustice I see not what authority you have for this Reference nor how it can be and 4 H. 6. if one be awarded before auditors to accompt this cannot be referred and here would be an inconvenience to take away a duty created by bond by paroll therefore let the Plaintif have his Iudgement Neve and Cross Mich. 1652. Banc. sup NEve brought an Action upon the case against Cross for charging him with felony Arrest of Judgement in an â—ction upon the Câ—seâ— in nature of a Conspiracy and causing a Constable to carry him before a Iustice of Peace and accusing him to the Iustice in these words viz. He did come to my door and set a Pistol to my Brest and demanded money of me and I for safegard of my life did give him what money he desired Vpon not guilty pleaded and a Verdict for the Plaintif it was moved by Fletcher of Lincolns Inn that the words were not actionable and therefore that the Plaintif ought not to have judgment and that for these reasons 1. Because there is but a matter of Trespass alleged in the words 2ly They are but argumentative and do not charge the Plaintif directly with felony and it may be the money demanded was due to the Defendant and the Iury have found all that which sounds to charge the party with felony against the Plaintif Twisden on the other side said that the words ought to be taken together and so they are actionable and ought not to be severed And the ground of the Action is for charging