cases doth use at the prayer of the party who is concerned to dispense with the not speaking to it at that time and doth give the party further time to speak in it without prejudice to him and this is called the putting off of a Peremptory Proclamation At the latter end of the Assizes there useth to be Proclamation made that no more records of nisi prius be put in to be tryed at that Assizes and that they shall not be received after and all persons that are to attend their tryals if the Records of nisi prius to be tryed be not then put in may depart and are bound to give no longer attendance at that Assizes Pasc 1652. B. S. Quashing of Endictments Orders c. THis Court hath authority to Quash Orders of Sessions Presentments Endictments c. made in inferior Courts or before Justices of the Peace or other Commissioners if there be cause that is if they be defective in matter or form Mich 22. Car. B. r. To Quash comes of the French word Quasser or rather Casser which signifies to break in peices to cancel destroy make null or voide But this Quashing is but by favour of the Court for the Court is not tyed Ex Officio to do it but may leave the party to plead unto them and to take advantage of the insufficiency of them by pleading to them as in many cases they use to do An Endictment may be Quashed for false Latine or for having in it insensible words or English words or for defect in the form of it Trin. 23. Car. B. r. But now by the late Act it may be in English The Court will not Quash an Endictment of forcible entry after a Verdict before hearing of both the parties concerned in the cause Mich. 23. Car. B. r. The Court will not Quash an information for a fault in the body of it but will leave the Defendant to demur unto it if he believe it to be insufficient but it is otherwise of an Endictment Pasc 1650. B. S. 24 Maii. Quaere rationem Quo Warranto A Quo Wvrranto was brought for vexation upon fourty eight points and the Court being moved in it did order that the prosecutor should wave that Quo Warranto and should bring a new one and therein insist onely upon three points but that he might proceed to a tryall upon it in such time as he might have done upon the old Hill 22. Car. B. r. Quaere Whether one that is under an Arrest may make an Obligation to the Plaintiff at whose sute he was arrested for his appearance to his Action Pasc 24. Car. B. r. Pasc 1648. B. S. In Leach and Davyes Case If a Lessee for years cut down Timber upon the Land let unto him and carry it away from off the ground Q. Whether the Lessor may bring an Action of Trover and Conversion for the Timber Mich. 24. Car. B. r. Whether a fine levyed of Land shall extend to a contingent use of that Land Mich. 24. Car. B. r. In Thomas and Kemishes Case If there be two Tenants in Common of Land and one of them dye Quaere How his wife shall be endowed of the Land which her husband beld in common whether by metes and bounds or not 16. Nov. 1650. B. S. Return of Writs c. THe Court was moved that a return made upon a Habeas Corpus might be amended before it was filed and it was granted Hill 21. Car. B. r. But after it is filed it cannot be amended for then it is a Record of the Court. If a special Scire Facias do issue forth a nihil cannot be returned upon this Scire Facias Hill 21. Car. B r. For a nihil is a general return which ought not to be in this case because the Writ is a special Writ If an inferior Court do make an ill return of a Habeas Corpus the Court will grant an alias Habeas Corpus and also set an amercement upon them for making an ill return of the former Habeas Corpus Hill 21. Car. B. r. Because thereby viz. by the ill return Justice is delayed and the party grieved is also put to more trouble and charge to obtain it If a Writ out of this Court be directed to an inferior Court which the inferior Court is not bound to allow but may proceed notwithstanding the Writ sent unto them yet they ought to make a Return upon the Writ and in the Return to shew the cause why they do not allow the Writ but do proceed in the Cause notwithstanding the Writ Hill 22. Car. B. r. For the Writs of this Court are to be obeyed if there be not very good reason shewed to the contrary why they ought not to be obeyed A prisoner brought to the Bar upon the Return of his Habeas Corpus may have a Copy of the Return if he pray it that he may take his exceptions to the Return Mich. 22. Car. B. r. But the Return must be first filed If the Under Sheriff of a County may be justly challenged as partial to the Plaintiff or the Defendant in respect of kindred or alliance or some other cause that may render him not to be indifferent between the parties and he be to execute a Venire Facias to summon to a Jury to try an issue joyned betwixt the Plaintiff and Defendant in such cases the Court will upon motion of the party that is likely to be prejudiced if a Jury should be returned by him order that the High Sheriff of the County shall himself Return the Jury Mich. 22. Car. B. r. If one be arrested by the Sheriffs Bailiff and a Bond be given unto the Sheriff that the party arrested shall appear at the Return of the Writ the Sheriff ought not to Return a Non est inventus but a Cepi Corpus and if he do Return a non est inventus the Plaintiff may bring an Action upon the Case against the Sheriff for making a false Return or else the Court may amerce him for it and if the Sheriff do Return a Cepi Corpus and yet the party Arrested doth not appear at the day the Court will encrease amercements upon the Sheriff untill he make the party to appear Hill 22. Car. B. r. For when the party is arrested he is in custody of the Sheriff and he ought to keep him at his peril and bring him in at the day and it is of favour to the party that he takes Bond of him for his appearance for he is not bound to do it and if he suffer by it he may take his remedy against the party upon the bond It is not requisite that the Sheriff in making a Return should insert his title or name of dignity or Christian or surname but onely by his name of office Hill 22. Car. B. r. Yet if he do insert those names which is usually done the Return is not thereby hurt or made defective If the Sheriff Return a Cepi Corpus and
Peace all the County over The Peace was prayed upon Articles read in Court against one one of which Articles was that the party against whom the peace was prayed did threaten that he would burn down the house of him that prayed the peace and upon that Article it was granted Hill 21. Car. B. r. To grant the Peace against one is to grant that the process of the Court may issue out of the Crown Office against him to bring him into the Court to finde suerties to be bound with him in a recognisance to the King to keep the peace towards all the Kings Liege people but more especially towards the party that prayes the Peace A Justice of Peace ought not to binde any person to the good behaviour upon a general information and if the party accused doth refuse to be so bound and find Suerties to be of good behaviour yet the Justice of Peace ought not by the Law to send the party to the Goal for refusing it Pasc 23. Car. B. r. For he that desires to have one bound to the good behaviour must shew some particular miscarriages wherein the misbehaviour of the party consists for accusatio generalis est nulla for what defence can be made to it The Justices of Peace ought by the duty of their places to attend at the Assizes and at the publike Sessions of the Peace held for the County whereof they are Justices Pasc 23. Car. B. r. The Commission of Oyer and Terminer doth extend to those that are Justices of the peace Pasc 23. Car. B. r. Q. Whether it be generally so A Justice of Peace may actually Arrest and commit the party to prison that doth a Felony in his own view without any warrant made under his hand and seal to arrest him but if there be an information made to a Justice of Peace that one hath committed Felony there the Justice must make a Warrant under his hand and seal to Arrest the Felon and may not do it by word of mouth 1650 B. S. It is usual in the Capital Office if one be bound to the peace there to keep him bound to the peace during his life But by Rolle Chief Justice there is no reason why this should be done 13. Maii. 1651. B. S. For the party may be come reformed and so no cause to continue him bound and his suerties for so long a time A Justice of Peace may require a Bond or Recognizance of a thousand pound of one for his keeping the peace if he see cause for it in regard that the party to be bound is a dangerous person and likely to break the Peace and to do much mischeif Pasc 1652. B. S. This Court will bind one to the Peace if they see cause to do it although there be no Oath made by any person against him that is to be bound that he goeth in fear of his life of him Trin. 1652. B. S. For the Oath of a party is but to manifest unto the Court that there is just cause why the party should be bound unto the Peace and therefore if the Court be sufficiently satisfied without such an Oath that there is good cause to bind the party to the peace they may do it without such an Oath If one do take his Oath in this Court against another that he doth go in fear of his life of him and prayes the peace against him he against whom the peace is thus sworn and the Peace prayed ought to be committed to prison if he do not find Suerties to keep the peace although there be no Articles exhibited and sworn against him 1652. B S For there appears sufficient cause by the Oath for the Court to do it though there be no Articles exhibited as the usual course is to do Issues The Court doth use upon a motion to order that good Issues be set upon a Sheriff or other Officer for not bringing in the body of the party into Court upon a Writ of Habeas Corpus directed unto him or for not making a good retorne but they will not order-what summe shall be set upon him but leave that to be done according to the custome of the Court Hill 22. Car. B. r. For where things are to go on in a common way of practice there the Court will not make a special Rule in the Case When Issues are set upon a Sheriff or other Officer by the Court for the neglect of his duty and afterwards upon some reasons shewed to the Court why they should be taken off or discharged the Court doth discharge them the Roll ought to be marked to shew they are discharged otherwise Process may issue out to levy these Issues notwithstanding they are discharged by order of Court Hill 22. Car. B. r. For as the Issues do appear upon the Record so they cannot be discharged but upon record If an Issue be not well joyned it is helped after a verdict by the Statute of Jeofailes but if there be no Issue joyned and a Verdict passeth this is erroneous and is not helped by the Statute Mich. 23. Car. B. r. But there must be a repleader to the intent there may be an Issue joyned upon which a tryall may be had Judges The Judges are to have a paper of the Causes which are to be spoken to in Court sent unto them particularly at five of the Clock in the evening the day before they are to be spoken to in Court Hill 22. Car. B. r. That they may have time to prepare to speak to them Justices of Oyer and Terminer cannot proceed to try persons endicted upon endictments not preferred before themselves but the Justices of the Goale-delivery may Trin. 23. Car. B. r. For the Justices of Goale-delivery have a more generall Commission for proceeding against malefactors than the Commissioners of Oyer and Terminer have The Judges of the Common Law have no ordinary jurisdiction to examine Witnesses in their Chambers but by the consent of the parties and by the Rule of the Court they may do it and there useth not to be any cross examinations of the party but the course is to put the Depositions in writing on both parts and then the Judg doth examine the parties upon their severall oathes whether their Depositions be true Mich. 23. Car. B. r. Where there do speciall and doubtfull matters arise upon the reading of a Record so that the Court is not for the present satisfied of the Law the Attorneys on both sides ought to prepare Books viz. Copies of the Record for the Judges at the Clyents equall charge that the Judges may upon view of the Record the better consider of the matters in dispute For it is the course for the Attorneys to make their Clyents for to pay for such Books in all such Cases although they never make any for the Judges By Rolle Chief Justice The Judges of this Court declared that they would not sit longer in Court then till one a clock in the
a Procedendo that the cause may be removed into London that the Custome may be tryed there for it cannot be tryed here and so if a Procedendo should not be granted the cause would remain untryed and the party that brought the Action would be without remedy Hill 22. Car. B. r. After the Defendant hath filed Baile in this Court a Procedendo ought not to be granted much less after issue is joyned in the cause Pasc 23. Car. B. r. For by admitting of the Bail the Plaintiff hath admitted the jurisdiction of the Court and it is then too late to move for a Procedendo It is not necessary that a Procedendo do agree in form with the Habeas Corpus by which the cause was removed into this Court but it is sufficient if it do agree in the matter with it Trin. 24. Car. B. r. If the Defendant hath put in Bail in this Court upon the removal of the cause hither by Certiorari or Habeas Corpus cum causa if afterwards the Bail be disalowed by the Court if the Defendant shall refuse to put in better Bail such as the Court shall approve of a Procedendo may be granted to the Plaintiff to remove the cause back again to try it where the Action was first said Mich. 24. Car. B. r. For disalowing of the Bail makes the Defendant to be in the same condition as if he had put in no Bail If a Certiorari to remove a cause be returned before a Judge and not in Court and their follows no proceedings in the cause after the Certiorari returned if the party who is concerned will move for a Procedendo he must move for it before the Judge before whom the Certiorari was returned and not in the Court whether the cause is removed Mich. 1649 B. S. Because the Judge hath been formerly acquainted with the return of the Certiorari and may have better knowledge why it was granted and therefore the Court will not intermedle to undo what the Judge hath done Practice If the Atturney for the Plaintiff do tell the Defendants Atturney that he is content to stay for a Plea till such a time and yet doth in the mean time enter Judgment for want of a Plea this is not fair practice but if this be made to appear to the Court the Court will vacate the Judgement and force him to accept of a Plea Hill 22. Car. B. r. For the Law will not countenance fraud and falshood in the proceedings thereof but loves plain and fair practice It is not fair practice for the Defendants Atturney to Demur to the Plaintiffs Declaration without probable cause but onely to gaine time to plead Trin. 23. Car. B. r. For this is apparent cause of delay Peace and Justice of Peace A Justice of Peace in one part of York-shire is not a Justice of Peace throughout the whole County but onely in that division of York-shire where he is authorised by his Commission to be a Justice Hill 22. Car. B. r. This is in regard of the large extent of that County for in other Counties a Justice of Peace in every County is a Justice of Peace throughout the whole County The Peace was granted against one upon an Article sworn in Court amongst others that he did threaten to burn down the Plaintiffs house Hill 22 Car. B. r. For such menaceing words are accounted to be a breach of the Peace and such persons are dangerous persons in the Commonwealth and to be restrained from doing mischief A Justice of Peace ought not to binde a man to his good behaviour upon a general Information and if the party shall refuse to put in sureties for his good behaviour upon such an information yet the Justice ought not to send him to the Gaol for his refusal Pasc 23. Car. B. r. But the information must be particular and shew wherein the misbehaviour consists for accusatio generalis non est applicabilis personae particulari It is the duty of Justices of Peace to attend duly at the quarter Sessions and at the Assizes held for the County where they are Justices Pasc 23. Car. B. r. For there are the most important businesses which concern the Peace and Government of the County managed The Commission of Oyer and Terminer doth extend to Justices of the Peace Pasc 23. Car. B. r. A Justice of Peace may himself actually arrest and commit a Felon for a Felony done in his own view without any Warrant made to another to do it but he may not command one to be apprehended for Felony upon a bare information made against the party but by a warrant under his hand and Seal and not by Paroll Pasc 23. Car. B. r. It is the course used in the Capital Office to continue one that is there bound to the Peace to be so bound during his life but by Rolle Chief Justice this is not reasonable Pasc 1651. B. S. 13. Maii. If the person that is to be bound unto the Peace be a dangerous person and the cause for which he is to be bound do require great security a Justice of Peace may require him to find extraordinary sureties to be bound with him and in what sum he shall judge the cause doth require Pasc 1652. B. S. If this Court do see cause to bind one to the Peace they may do it although no person doth make Oath that he goes in fear of his Life of the party Pasc 1652. B. S. For such Oath is but evidence against the purty that there is cause to bind him to the peace and if the Court be satisfied that there is cause to do it without such evidence the not having of such an Oath is no hindrance unto them to do it If one do swear the Peace in Court against another that is doth make Oath that he goes in fear of his life or corporal hurt of him the party against whom this Oath is made ought to be committed if he do not find sureties for the Peace although there be no Articles exhibited and sworn against him Mich. 1652. B. S. Priviledge A Committee man of Parliament that is not a Member of the Parliament is not Priviledged from serving upon the grand enquest Hill 21. Car. B. r. A Clerk of this Court is not to be compelled to lay his Action out of that County where this Court doth sit Mich. 22. Car. B. r. By reason of the constant attendance he is bound unto in this Court No Priviledge is to be allowed to one that hath an Indictment preferred against him although he be a Peer of the Realm Mich. 22. Car. B. r. For an Endictment is at the sute of the King and against him no Priviledge is to be allowed One that was coming unto this Court to attend upon his cause was arrested as he was coming and was forced to put in Bail but upon a motion and making it so to appear unto the Court he and his Bail were both discharged Mich. 22.
to defraud the Plaintiff of his appearance but the Atturney ought by the Rules of the Court to appear for him according to the Rules of the Court notwithstanding his Warrant be so repealed Trin. 22. Car. B. r. If an Atturney do practice deceitfully an Attatchment lies against him out of this Court at the prayer of the party grieved if he make it appear to the Court and good costs shall be given against him 22. Car. B. r. An Atturney and his Clerk were both committed by the Court for entring things against express Rules of the Court and after notice of those Rules given them by the Atturney of the other side 22. Car. B. r. One Atturney ought not to suffer another Atturney to practice in his name by reason of many inconveniencies that often happen to the Clyents by this means 22. Car. B. r. One G. H. an Atturney was ordered to be put out of the Roll of Atturneyes for entring a judgement against an express Rule in Court Mich. Car. 22. B. r. but it was not done The proper place for the Atturney General to sit upon any special matters wherein his attendence is required in Court is under the Judges on the left hand of the Clerk of the Crown Mich. 22. Car. B. r. No Under Sheriff ought to be Atturney for it is often the cause of encreasing of Suits and also a hindrance in dispatch of Clyents causes Trin. 23. Car. B. r. If the Atturney of the Plaintiff or Defendant do dye hanging the Suite and the other party whose Atturney is dead have notice given of it and will not retain another Atturney to prosecute for him the other party may proceed and is not bound to hinder his Clyents cause for it Mich. 23. Car. B. r. The Plaintiff or Defendant may change his Atturney pending the Suite without leave of the Court but it is not fair practice to do it without just cause Mich. 23. Car. B. r. It was the old course in proceeding in an Action of Trespass and Ejectment to deliver the Lease of Ejectment to the party to whom the Plaintiff had made a Letter of Atturney to execute the Lease and for the Atturney to deliver possession of the Land upon the delivery of the Lease Pasc 24. Car. reg If one have a Letter of Atturney to deliver a Deed to another and also authority from the party by word of mouth to do it he may make use of which of these he will to do it by but not of both for the first that he makes use of shall be effectual and the other shall be void Pasc 24. Car. B. r. An Infant ought not to appear to an Action by an Atturney but by his Guardian for he cannot retain an Atturney but the Court may assigne him a Guardian Pasc 24. Car. B. r. The Atturneys ought to be ordered in the ordinary manner of their practice by the Master of the Office and if differences arise betwixt them concerning it he is to hear both parties and to order the matters in difference betwixt them and they are to submit to him Pasc 24. Car. B. r. and the Court is not to be troubled but in extraordinary and difficult matters If there be divers Defendants declared against in one Declaration the Atturney in the cause on the Defendants part cannot be compelled to appear for more of the Defendants then for those from whom he hath Warrant to appear 24. Car. B. r. If one retain one by Warrant to be his Atturney in a Suite depending against him in this Court he may appear for him by that Warrant in all Suites which are there depending against him Hill 1649. B. Sup. Atturneys ought to be of some Inns of Court or Inn of Chancery and not to lodge in Inns or Ale-houses or in private places By Roll chief Justice Hill 1649. B. Sup. 8. Feb. Atturneys of the Upper Bench ought to be allowed in all Circuits as the Atturneys of the Common Pleas are although it hath been denyed them in the Western Circuit and ought not to be compelled to pay extraordinary Fees for practising there per Rolle Pasc 1650. 1. Maii. vid. 1. H. 7. f. 12. a. that the Atturneys of the Upper Bench are not Atturneys upon Record Ergo quaere An Action upon the Case lyes for the Clyent against his Atturney if he plead a Plea for him for which he hath not his Warrant Hill 49. B. Sup. The Atturneys of this Court were ordered from hence forth to besworn as the Atturneys of the Common Pleas are by Rolle Pasc 1650. 1. Maii B. Sup. One cannot force an Atturney to be his Atturney against his will by Rolle Chief Justice One may be an Atturney for a Clyent upon Record and yet another Atturney may act all the business for this Clyent An Atturney that hath Warrant to appear for his Clyent may plead for him without another Warrant by Rolle Chief Justice See Q. for divers Clerks in Court said privately that he cannot plead no any other Plea for his Clyent without a special Warrant but a non sum informatus If an Attnrney dye pending his Clyents cause his Warrant of Atturney is determined and his Clerk may not proceed in the Suite without another Warrant by Rolle Chief Justice Actions There ought to be both apparent malice in the Defendant and prejudice also done to the Plaintiff to ground an Action upon the Case upon or else it will not lye for if there be only malice and no dammage done by it there can be nothing recovered and so the Action will be vain and to no purpose and if there be only dammage and no malice it is but damnum sine injuria and not punishable by Law Hill 21. Car. B. r. Where there are two several dammages done to the party he ought to have two several Actions and not to joyn them in one Action Entred Oct. 156. 20. Car. Hill 21. Car. B. r. Although dammage without wrong will not maintain an Action nor malice without dammage yet malice may aggravate the dammages recoverable where there is dammage and wrong meeting together Hill 21. Car. B. r. Where two Actions though of several natures do depend one upon the other the abatement of one of the Actions is the abatement of both Hill 21. Car. B. r. In an Action upon the Case grounded upon a promise the Declaration is Actio in super casum in the singular number although the Action be brought upon divers promises for the word Case includes all 21. Car. B. r. An Action brought against a Constable for a thing done by him by vertue of his Office ought by the Statute to be brought against him in the County where he is Constable and not else where 21. Car. B. r. A Transitory Action may be laid in any County at the will of the Plaintiff yet generally and it seems the better and more indifferent course so to do it useth to be laid in that County where the cause
award do make an end of all the differences submitted unto the Arbitrators by the parties Trin. 23. Car. B. r. Mich. 24. Car. B. r. An Award ought to be final and certain else it is not good Mich. 23. Car. B. r. If each party submitting to the Award hath power by the Award to compell the other party either by Law or equity to perform the Award the Award is good although the party be thereby put to his Action Mich. 24. Car. B. r. An Award that a thing shall be done to a stranger is a good Award if it appear that the parties who submitted to the Award have benefit by the doing of it Pasc 1650 B. S. 4. Junii If an Award be good in any part of it to all the parties that did submit to it if the Award be broken in that part an Action will lie for that breach Pasc 1650 B. S. 4. Maii. An Arbitrator cannot delegate or transfer the power given him by the parties that submitted to the Arbitration for it is contrary to the submission but an Arbitrator may refer a Ministeral act touching the Arbitration to another Trin. 1650. B. S. 15. Junii The Court will not suppose any thing to be Awarded in an Award which is not submitted unto except the Contrary be made to appear 10. Feb. 1650. B. S. Affirmance It is not proper to move to have a Judgement affirmed after a Writ of Error bought to Reverse it before the Errors be Assigned but one may move for Execution upon the Judgement 22. Car. B. r. Agreement A forced Agreement of the party is accounted to be no Argeement and therefore the Court will not compell him that did thus agree to a thing to perform his agreement 22. Car. B. r. An agreement which is made between the parties onely by Paroll may be discharged and made void at any time before it is broken by Parol without satisfaction but after it is broken it cannot be discharged without satisfaction of it 22. Car. B. r. If an Agreement made by Parol to do any thing be afterwards reduced into writing the Parol agreement is thereby discharged and if an Action be to be brought for the non performance of this agreement it must be brought upon the agreement reduced into writting and not upon the Parol agreement Pasc 23. Car. B. r. The Plaintiff and Defendant may by agreement between them give mony to the Jury before they pass upon the tryal to defray their charges where the tryal is put off and thereby they are forced to stay longer in Town then they expected Mich. 1649. B. S. Agreement By Rolle Chief Justice If the Plaintiffs Atturnoy and the Defendants Atturney do agree to things in order to the proceedings in their Clyents cause though the Clyents do afterwards refuse to consent to their agreement yet the Court will compell the Atturneys to perform the agreement Atturnment An Atturnment made unto Cestuy que use is a good Atturnment in Law to the Feffee of the Land if the Tenant of the land have notice of the use when he did Atturn Tenant to Cestuy que use Mich. 22. Car. B. r. An Atturnment made after Sun-set is not a good Atturnment for an Atturnment is a solmne act and ought to be done so that notice may be taken of it which shall not be presumed to be in the night Mich. 23. Car. B. r. Assumpsit or Promise A promise that is made upon a sufficient consideration is as if it were made upon a precedent condition Mich. 22. Car. B. r. An Assumpsit or promise to do a thing upon consideration that he to whom he made the promise shall surrender an indenture to him is a good consideration to ground an Action upon for breach of this promise although he to whom the Indenture is surrendred do take no estate by this surrender Mich. 23. Car. B. r. If one upon a good consideration do assume or promise to do a thing he that promised to do it shall have a reasonable time allowed to him for the doing of it and shall not have liberty to do it at any time during his life Hill 22. Car. B. r. Where an Assumpsit or promise is the very ground of the Action brought there it must be pleaded precisely but where it is but the inducement to the bringing of the Action there it is not necessary to set forth the promise precisely in the pleading Pasc 23. Car. B. r. Every contract made betwixt parties doth in Law imply a promise that they will perform the contract Hill 1649. B. S. 4. Feb. He for whose benefit a promise is made may have an Action for the breach of this promise although the promise was not made to him Pasc 23. Car. B. r. The consideration to stay his proceedings in a Suit in Law is a good consideration to ground an Assumpsit Trin. 23. Car. B. r. viz. for ever or for a certain time But if he promise to stay Paululum tempus it is not good If one part of the consideration upon which a promise is made to do a thing be against the Law and so void yet if another part of the consideration be good and lawful the consideration is good to ground an Assumpsit upon for the consideration may be divided and if any part of it be good it is sufficient to make the promise good Mich. 23. Car. B. r. An Assumpsit grounded upon a consideration which was past before the promise made is a good Assumpsit if it be alledged to be made at the instance or request of the Defendant Psac 24. Car. B. r. After a promise is broken the party that made this promise cannot be discharged of this promise by Parol but where the promise is executory the may Pasc 24. Car. B. r. Where one becomes legally indebted to another the Law creates a promise that he will pay this debt and if he do not pay it there is a sufficient ground for the party to whom he is indebted to bring his Action of Indebitatus Assumpsit against him to recover this Debt Trin. 24. Car. B. r. If the day of an Assumpsit made be pleaded in figures and not in words at length it is erroneous Pasc 24. Car. B. r. If an Action be brought upon an Assumpsit and upon proof it doth appear that the agreement was more or that it was less in substance then the Plaintiff hath declared upon he hath failed in laying of his Action otherwise it is if some circumstance only be omitted Mich. 24. Car. B. r. In an Action brought upon a promise it is usual to ground the Action upon one promise in the substance of it but to lay the promise divers wayes and by different words in the Declaration to the intent that upon the tryal the Plaintiff may rest or rely upon that way of laying it that his witnesses are best able to prove Mich. 24. Car. B. r. If one be indebted to another and do promise to pay
For then the Defendant is to go only upon common Bail If the Plaintiffs Atturney do onely tell the Defendants Atturney that his Clyent is to put in special Bail it is sufficient and there common Bail is not to be admitted although the Roll be not marked for special Bail 3. Feb. 1650 B. S. For the notice that there ought to be special Bail is the thing required and the marking of the Roll is but to give notice If one that lies in Execution do bring his Audita Querela he is Bailable 7. Feb. 1650 B. S. So held in Trittons Case By a Rule of the Court the Plaintiffs Atturney must receive the Bail given before the Judge from the Judge himself the same Term it was put in upon pain of five shillings 21. Feb. 1650 B. S. When one becomes Bail for another in an Action of Debt he doth in Law assume or take upon him to render the body of the Principal if he be condemned or else to pay the Debt he is condemned in Pasc 1652. per Rolle B. S. Untill a Capias be Returned against the Principal the Bail shall not forfeit his Recognizance for the principals not appearance by the Ancient course of the Court but at this day by the indulgence of the Court he shall not forfeit his Recognizance if the Principal come in at any time before the Return of the second Scire Facias against the Bail Trin. 1652. B. S. If one be sued in this Court for twenty pounds or above the Plaintiff may by the course of the Court require special Bail but if he sued for a less some common Bail must be accepted Per Barrell Clerk there Special Bail is not generally to be given in an Action of Battery yet in some such cases the Court will compell the Defendant to put in special Bail viz where they perceive it was a foul Battery and much dammage done by it else an Action of Battery is thought a slight Action and not worthy of special Bail If there be no Writ in the Roll nor any notice given for special Bail and common Bail is filed the Plaintiff cannot by the course of the Court require special Baile By Rolle Chief Justice Bail is not to be accounted Bail properly until it be filed for then and not before it is upon Record By Rolle Chief Justice If the Defendant put in Bail before a Judge and it is allowed and yet he will not file it the Plaintiff may if he will at his own charge file it By Rolle Chief Justice Pasc 1655. To avoid Error If Bail be taken by the Judge de bene esse the Plaintiff ought by the Rules of the Court either to allow the Bail or to shew cause to the contrary By Rolle The sufficiency or non sufficiency of Bail ought to be first exaimed by the judge at his Chamber before the Court is to be troubled with the matter but if the Judge cannot make the Plaintiff and Defendant agree in the giving and taking of the Bail then the Court is to be moved in it whereupon they will order both parties to attend and the Bail also and will examine the cause of Action and the Bails sufficiency and settle the matters in difference according to reason By Rolle Chief Justice The cause of marking the Roll for special Bail in this Court is because the cause of Action doth not appear upon the Latitat by which the party was Arrested but it is to be made appear by the Declaration By Glyn Chief Justice But in the Common Pleas where they proceed upon an Original the cause of Action doth appear Burglary Burglary may be committed by one though he do not break a house open for if he be within the house and steal away the goods in the house and open the door on the inside and go out and carry away the goods this is Burglary 22. Car. Trin. B. r. Bankrupt He that is a Bankrupt to one Creditor is accounted in Law to be a Bankrupt to all 22. Car. B. r. He that is once adjudged to be a Bankrupt is to be alwayes accounted to be a Bankrupt 22. Car. B. r. If one shall with an intent to support the credit of a Bankrupt suffer him to have his goods in his custody and to dispose of them the property of these goods shall be accounted to be in the Bankrupt and the true owner of the goods shall lose the property in them 18. Ap 1501. B. Sup. As a punishment for his false dealing herein and of the mischiefs which may grow by such devises to evade the Laws Bench. Where one brings an Action for a Covenant broken he ought to Assign the breach of it in such manner that the Defendant may justifie or take an Issue Hill 22. Car. B. r. Else the party can make no defence for himself If one bring an Action of Covenant against another for not repairing houses c. demised unto him he ought to Assign particularly wherein the want of reparations do consist and not to declare generally Hill 22. Car. B. r. For reparations do consist of particulars If an Action of Debt be brought upon an Obligation for breach of the condition thereof the Plaintiff is not to Assign in what the breach is untill the Defendant hath pleaded performance of the condition Hill 22. Car. B. r. Baliff A Bailiff may execute a Writ out of the Hundred where he is Bailiff Pasc 23. Car. B. r. For he is Bailiff all the County over if he be the Sheriffs Bailiff and not a Bailiff of some Liberty within the County A Bailiff is a servant or minister of the Law and by consequence he is a servant to the party at whose Suite he is to Arrest any one Pasc 24. Car. B. r. A Sheriffs Bailiff is not an Officer of the Court but the Sheriff himself is the Officer that the Court takes notice of Pasc 24. Car. B. r. Bargain and Sale A Bargain and Sale made by one who is not in possession though it be by Deed inrolled is not good if there be no Livery made thereupon Mich. 23. Car. B. r. If one buy a thing of another he that buyes it ought to pay the money he hath agreed to pay for it before the seller of it is bound to deliver it Pasc 23. Car. B. r. One may upon a good consideration dissolve by Paroll onely an absolute Bargain Pas 24. Car. B. r. One may sell his priviledge given him by the Law as his birthright as a freeborn subject for a good consideration Trin. 24. Car. B. r. If one that is indebted do really and bona fide sell his Lands though it be with an intent to avoid the paiment of his Debts this sale is good if the Vendee be not privy to his intent Mich. 24. Car. B. r. If one Bargain and Sell Lands of which another is in possession and claims title to them this Bargain and Sale is not good Trin 1651. B. S. Because
the Lady Anne Holborne a Juror was Challenged because he was retorned by the Name of Mathew whereas in truth his Name was Mark although he was also called Mathew as he affirmed being examined upon a voire dire to say what his Name was and upon this Challenge the Juror was drawn and the Jury could not be taken for want of him but a tales was granted It is neither a principall Challenge nor a Challenge for favour to say that the Juror challenged was a supernumerary Juror in a former Jury retorned for the same parties in a Cause betwixt them and did receive money for his charges of the party for whom the verdict passed By Glynn Chief Justice Certiorary It is not necessary to have a Judges hand to a Writ of Certiorari to certifie a Writ of Error 21. Car. B r. A Certiorari to remove an Endictment doth lye by the course of the Court without moving the Court to it Mich. 22 Car. B. r. After a Writ of Error is brought there must be a Writ of Certiorari directed to the Court where the judgment was given for the reversing whereof the Writ of Error is brought to certifie the record into this Court Mich. 22. Car. B. r. A Certiorari to remove an Endictment is good although it doe bear date before the taking of the Endictment which is to be removed by the Certiorari Mich. 22. Car. B. r. For the date is not materiall When a certificate of a Record is made out of an inferior Court they ought to make the Certifiâ—ate as they will stand to it at their perill and it cannot be afterwards amended Hill 22. Car. B. r. For a Writ of diminution is not grantable to an inferior Court Q. This Court will upon motion grant a Certiorari to remove a judgment given in an inferior Court to the intent that the Plaintiff may have a Scire facias against the Defendant to shew cause why he should not have execution upon his judgement Hill 22. Car. B. r. This was done in the Case of Rooke against Knight to remove a judgement given in Dymchurch a member of one of the Cinque Ports in Kent upon the motion of Lancelot Johnson of the Inner Temple The Justices of Assize may certifie to this Court if a Jury doe finde a verdict against the evidence given them Pasc 23. Car. B. r. That judgement may not be speedily entred upon such a verdict It was doubted whether a Certiorari do lye to the Cinque Ports Pasc 23. Car. B. r. Notwithstanding it was done in the Case of Rooke and Knight If one party pray a Certiorari and have it granted the other party cannot have another Certiorari Pasc 23. Car. B. r. viz. For the same thing If there be cause to certifie the Court touching a custome used in the City of London this Certificate is not to be made in wrâ—ting but the Recorder of London is to certifie the Custome to the Court ore tenus or by word of mouth Trin. 23. Car. B. r. But not if the Custome do concern the Lord Major particularly By Rolle Chief Justice When Justices have authority given them by a Statute within a Liberty a Certiorari lyes to them if the Liberty be not excepted Hill 23. Car. B. r. A Certiorari ought to be granted upon a matter in Law only and not upon a matter of fact Pasc 23. Car. B. r. Out of an inferiour Court the original Record ought to be certified into this Court upon a Certiorari directed to them upon a Writ of Error brought to reverse their judgement but the Common Pleas do only certifie a transcript of the Record before them Trin. 24. Car. B. r. The Pronotaries of the Common Pleas will not make a certificate of any matter before them unto this Court without a Rule of this Court to enjoyn them Trin. 24. Car. B. r. A Certiorari ought to be directed to the Custos brevium and to be retorned by him and is not to be directed to his deputy or retorned by him Mich. 24. Car. B. r. A Certiorari doth not lye to remove a Cause after a verdict is given in it Mich 24. Car. B. r. For then the Cause is determined If a Certiorari to certifie a Record be by some mishap so torn or defaced that the Record cannot be perfectly certified by it the party may have an alias Certiorari Mich. 24. Car. B. r. Vpon motion to the Court. A Certiorari may be granted to remove an Act of Common Councel of the City of London if the Act be made against the Law 6. Maii. 1650. B. S. The Court may grant a new Certiorari to remove a Record before them upon a Writ of Error brought after that in nullo est erratum is pleaded if it be ad informandum conscientiam in affirmance of the judgement but at the prayer of the party that brings the Writ of Error and after in nullo est erratum pleaded they will not do it Trin. 1651. B. r. For judgements are favoured in Law and are to be supported as much as justice will permit Rolle Chief Justice said That he did not use to grant a Certiorari to remove an Endictment but where the party that prayes it doth shew good cause why it should be granted viz. that there cannot be an indifferent tryal had in the County where the Endictment was found And where he doth grant it he orders that it shall be tryed the next Terme following B. r. 24. Car. A Certiorari ought not to be granted to remove an Endictment after the party endicted hath traversed and pleaded to the Endictment By Rolle Mich. 1654. B. r. A Certiorari to remove an Endictment ought not to be made by any of the Clerks in the Capital Office without moving the Judges in it and obtaining a Judges hand to it and a Warrant from the Master of the Capital Office Customes The Customes of London are confirmed by Magna Charta C. 9. Customes which are unreasonable are not good nor to be allowed Trin. 22. Car. B. r. Any Custome which may be intended to have had a lawfull beginning is a good custome 11. H. 7. 14. Mich. 24. Car. B. r. Any thing which may be good and lawfull to be done which had its original from the Consent and agreement made betwixt parties may be good and warranntable to be done by vertue of a Custome Mich. 23. Car. B. r. By the Custome of London an Action upon the Case doth lye against one for calling a woman Whore Hill 22. Car. B. r. But she must be an Inhabitant of London But Q whether it lye or not for by the Common Law it lyes not and Bacon Justice thought the Custome not good And quere it lye for a lodger The Customes of the Universities are confirmed by Act of Parliament Pasc 23. Car. B. r. The Customes of London if there be a question in this Court whether there be such Customes or not are to be
shall be accounted to be given for those things only for which Dammages may be given and the expressing the other things shall be accounted idle and void Trin. 24. Car. B. r. If an Action of Trespass be brought and the Defendant pleads and the Plaintiff joyns issue with the Defendant and after issue joyned he is non-suit he shall pay the Defendant Costs for his false vexation of him by the Stat. of 4. Jac. And upon very good reason For it shall be intended that if he had had good cause of Action against the Defendant that he would not have become non-suit When a judgment is given by default then the Court doth assesse the Dammages and not the Jury Mich. 1649. B. r. For there is no issue tryed If an Action of Trespas be brought against divers persons and some of them plead to issue and others do not and the issue is found for the Plaintiff and Dammages are given as well against those that joyned not in the issue as against them that joyned in the issue these Dammages are well given Mich. 1649. B. S. For the Trespas is found and that the Plaintiff was damnified so much by reason thereof If Dammages be assessed and it is not expressed that they are assessed pro Misis Custagiis this is erroneous for it doth not appear by the Record for what the Dammages are assessed as it ought to do Hill 1649. 31. Jan. B. S. For Records ought to be certain and not ambiguous All Costs are given ex assensu partium that is by the consent of the Plaintiff and the Defendant By Woodward Clarke Hill 1649. 4. Feb. B. S. If the Defendant whose title is concerned in an Ejectione firmae will not defend his title to the Land in question and the verdict do pass against the Plaintiff the ejector may release the Dammages 11. Feb. Hill 1649. B. S. For they do properly belong to hiâ—… One that sues in forma pauperis if the Cause go against him yet he shall pay no Costs if he were admitted to sue in forma pauperis in the suit which passeth against him before the suit began but if he were admitted to sue in sorma pauperis pendente lite that is whilst the fuit depended he shall pay Costs By Rolle Chief Justice who said it had been so antiently held and ruled 16. Nov. 1650. B. S. But Q what Costs whether the Costs of the whole suit or only with relation from the time he commenced his suit to the time he was admitted to sue in Forma pauperis In a Writ of Dowr if the Plaintiff recover and yet doth not desire a Writ of enquiry of Dammages to recover the Dammages the Court may tax the Dammages 5. Feb. 1650. B. S. The Court may encrease the Dammages which are found by the Jury upon a Writ of enquiry of Dammages in an Action of Assault Battery and Wounding if they see cause upon the view of the party that was beaten and wounded Trin. 1651. B. S. This was done in the Case of Davis Plaintiff and the Lord Foliot Defendant The Court will not compell the party that is non-suit in a Cause to pay his Costs upon the non-suit but if the party will not pay them when they are taxed the Court will not suffer him to commence his suit again untill he have paid them Pasc 1652. B. S. After judgment is given in a Cause depending in this Court the Court cannot make a Rule for the payment of the Costs which were expended in prosecuting the suit By Rolle Chief Justice 1655. B. S. For after judgment the parties are out of Court for the Cause is determined Q. No other Costs or Dammages shall be given upon a Recovery in an Action brought upon the Statute of 2º Edw. 6. for not setting forth of Tythes than the Dammages which are expressed in the Statute which is treble dammages 1655. B. S. For the course of the Common Law in such cases is altered by the Statute and it shall be intended that the Plaintiff hath better satisfaction thereby Deputies The Common Law doth in many Cases take notice of Deputies but it doth never take notice of under-Deputies Trin. 23. Car. B. r. As of the under-Sheriff who is but the Sheriffs Deputy sub-Almoner or Deputy-Almoner For in many Cases an Officer may be Law make a Deputy but a Deputy hath no power to depute another under him The King by his speciall Commission may make Deputy Escheators to finde an Office after the death of an Honourable Person Pasc 24. Car. B. r. As of a Duke Earl Marquess Viscount Baron c. Q. Whether in some speciall Case he may not do it after the death of one that is not of the Nobility It seems he may Default Before a verdict is taken by Default the Cryer of the Court doth call the Defendant three times and then if the party do not appear the Plaintiffs Counsell doth pray the verdict may be so entred Hill 21. B. r. Debt An Action of Debt doth lye against the Husband for goods which were delivered as sold unto the Wife because the Law doth intend that they were employed and came to the use of the Husband Hill 21. Car. B. r. And the Husband and Wife are but one person in Law If there be an erroneous judgment given for the Plaintiff in a personal Action in the Common Pleas and thereupon he brings an Action of Debt against the Defendant upon the erroneous Judgement in this Court the Action will well lye here until the Judgement in the Common Pleas be reversed by a Writ of Error 21. Car. B. r. For an erroneous Judgement is not void but voidable But when it is made void by a Writ of Error then there is no ground to support the Action of Debt so that then it cannot be maintained If one do assume upon a consideration moving from I. S. to perform a thing which concerns A. B. and do not perform it I. S. may bring an Action of Debt upon the Assumpsit against him that did so assum upon himself Mich. 22. Car. B. r. For the Action is grounded upon the promise made and the not performing it to I. S. to whom it was made In some Case an Action of Debt will ye though there be no contract betwixt the party that brings the Action and him against whom the Action is brought Mich. 22. Car. B. r. An Action of Debt lies against a Sheriff for moneys which he hath levyed by vertue of a Writ of fieri facias for the party that did recover the moneys for the Law doth create a privity by the fieri facias betwixt the Sheriff and the party that sued out the fieri facias Mich. 22. Car. B. r. If An Action of Debt be to be brought against an Administrator for Rent which was due by the Intestate upon a Contract made betwixt him and the Intestate in his life time the Action must he brought in the County where the Contract
they were preserved as things of value and to be made use of A writing that is permitted to be read to prove one part of an Evidence given to a Jury may be read to prove any other part of the whole evidence to be given Mich. 24. Car. B. r. If the Plaintiff or Defendant will give some part of an answer in Chancery in Evidence to a Jury the Court may order that the whole answer be read Mich. 24. Car. B. r. That the Court and the Jury may the better consider what it makes to the Evidence and it may be if part onely be read it may prove good Evidence for the party whereas the whole answer taken together may be against him He that takes out a Copy of part of a Record out of any Office with intent to give the Copy in Evidence to a Jury must take out so much of the Record at least as doth any wayes concern the matter in question at the tryal or else the Court will not suffer such Copy to be read in Evidence to the Jury Pasc 1650. 2. Maii. B. r. For if it be not so taken out it cannot be sworn to be a true Copy of so much of the Record as concerns the matter in question which is to be done before it can be read A transcript of a Record which is in another Court or an Enrolement of a Deed may be given in Evidence to a Jury Mich. 1649. B. S. For they are things to be credited being made by Officers of trust Upon a tryal at the Bar the Councel of that party who doth begin to maintain the Issue that is to be tryed whether it be the Councel of the Plaintiff or the Councel of the Defendant ought to conclude the Evidence Pasc 1650. 1. Maii. B. S. If any one of the Jury that is sworn to try the Issue be desired to give his Testimony concerning some matter of Fact that lies in his particular knowledge and concerns the matter in question as Evidence to his fellow Jurors the Court will have him examined openly in Court upon his Oath touching his knowledge therein and he is not to deliver his Testimony in private unto his fellow Jurors 31. Oct. 1650. Mich. B. S. For the Court and Councel on both parts are to hear the Evidence as well as the Jury In the case of Miller Plaintiff and Collumbine Defendant upon a tryal at the Bar in an Action of Trespas and Ejectment It was said by Rolle Chief Justice That an Office which is found after the death of one that died Seised of Capite Lands in a County wherein the Lands found in that Office do not lye but in another County may notwithstanding it was not found in the County where the Lands do lye be given in Evidence to a Jury that is to try the title of those Lands if there was a special Livery granted unto the Heir of those Lands 1654. B. S. The Jury may view Depositions taken in Chancery if they be exemplified under the great Seal and they may also have them with them from the Bar to consider of as part of the Evidence but if they be not exemplified under the great Seal they may only look upon them at the Bar but not have them with them out of Court 1655. B. S. If one do produce a Lease made upon an Out-lawry in Evidence to a Jury to prove a title he must also produce the Out-lawry it self but if he produce the Lease to prove other matter he needs not to shew the Out lawry but may have the Lease onely read in Evidence and so it is of an extent without shewing the Statute or Judgement on which the extent is grounded So held in a tryall at the Bar between Johnson and Spencer Pasc 1655. B. S. By Glynn Chief Justice it was said That all the Judges have agreed that upon the Meal Act the Defendant shall give matters in Evidence to the Jury which do onely tend to prove the Issue in question and no other matter Trin. 1655. B. S. For that act is so mischeivous that it is no way to be favoured Emparlance If the Plaintiff do amend his Declaration at any time after it is delivered to the Defendants Atturney or after it is filed in the Office in any thing that is matter of substance the Defendant may by the Rules of the Court Emparle to the next Term after that the Declaration is so amended if the Plaintiff do not pay costs to the Defendant for his amendment but if the Defendant do accept of Costs of the Plaintiff then the Defendant cannot Emparle Mich. 22. Car. B. r. In what Term soever a declaration comes in against the Defendant the Defendant may by the Rules of the Court Emparle to the next Term after before he can be compelled to plead Mich. 22. Car. B. r. For the Law doth not force any one to do any thing rashly and without advice but gives the party time to deliberate what to answer for himself Where the Defendants Case doth necessitate him to plead a special Plea and the matter is difficult which is to be pleaded the Court upon a motion made to inform them of it will if the Defendant desire it grant him longer time to Emparle and put in his Plea then otherwise by the Rules of the Court he ought to have Hill 22. Car. B. r. Where the Plaintiff doth keep any Deed or Writting or other thing from the Defendant which doth belong unto him and whereby he is to make his Defence and is disabled by the detaining thereof to plead for his best advantage the Court upon motion and information thereof will grant an Imparlance to the Defendant untill the Plaintiff do deliver it unto him and a convenient time after till he can draw up his Plea Hill 22. Car. B. r. For the Law doth give every Defendant convenient time to make his best defence If the Plaintiff alter the venue from the place where he first laid it the Defendant may Emparle to the next Term after Trin. 23. Car. B. r. For thereby he may be forced to alter his Plea If the Plaintiff do declare against the Defendant but doth not proceed further thereupon for three whole Terms after the Defendant may Emparle to the next Term by the Rules of the Court Hill 23. Car. B. r. If the Plaintiff amend his Declaration and pay Costs to the Defendant the Defendant may not Emparle but if the Plaintiff give the Defendant a new Declaration or do so amend the old Declaration that it is upon the matter a new Declaration then the Defendant may Emparle Mich. 1654. B. S. By Rolle Chief Justice If the Plaintiff and the Defendant have proceeded so far as to Issue in the Cause and after that the Defendant do amend his Plea the Defendant shall pay the Plaintiff Costs yet the Court will not grant an Emparlance unto him although the cause be not entered in the Judges book for tryall if there
also navigation An Endictment that is framed upon a Statute ought to pursue the words of the Statute or else it is not good Mich. 22. Car. B. r. For the offence being made by the Statute for which the party is Endicted it is reason the Statute should be punctually recited One that is convicted upon an erroneous Endictment cannot move after his Conviction to have the Endictment quashed but must bring his Writ of Error to reverse the Judgement given against him upon the Endictment Mich. 22. Car. B. r. For after Judgement it is too late for an Endictment is quashed for the insufficiency in it or because no good Judgement can be given upon an erroneous Endictment The Court will not quash an Endictment that is preferred for the publick good although it be not a good Endictment but will put the party Endicted to traverse it or to plead unto it Mich. 22. Car. B. r. For it is by the favour of the Court that any Endictment is quashed for if the Court please they may force the party to traverse or plead An Endictment removed by a Writ of Certiorari into this Court may be sent back again into the County or place whence it was removed if there be cause to do it Mich. 22. Car. B. r. If an Action upon the Case be brought against one for calling another Theif and the Defendant doth justifie the words and upon the tryal it be found for the Defendant an Endictment may be forthwith framed against the Plaintiff to try him for the Felony Mich. 22. Car. B. r. For the Felony appears to the Court by the Verdict found for the Defendant An Endictment doth lie against one that cheates another at play with false Dice Hill 22. car B. r. Or for any other way of cheating at play or otherwise An Endictment doth not lye for a private nusance or other injuries because the nusance or injury done is not made ad commune nocumentum but ad privatum and therefore an Action upon the Case doth only lye for the party that 〈◊〉 damnified by this nusance or injury Hill 22. Car. B. r. 11. Maii. 1651. For Endictments are to punish publike offences onely and done against the publick peace An Endictment lies against one for assaulting and stopping of another in his passing in the High-way 22. Hill Car. B. r. One that it Endicted for Felony may have Councel Assigned him to speak for him Pasc 23. Car. B. r. But such Councel are only to speak for him in matter of Law and not concerning matters of Fact Although a Bill of Endictment be preferred to a grand Jury upon Oath yet they are not bound to find the Bill if they find cause to the contrary and on the otherside although a Bill of Endictment be preferred unto them without Oath made yet they may find the Bill if they see cause Pasc 23. Car. B. r. But it is not usual to prefer a Bill unto them before Oath be first made in Court Every Endictment ought to be preferred against the party for some offence committed by him either against the Common Law or against some Statute Trin. 23. Car. B. r. There ought to be fifteen dayes between the preferring of an Endictment and the convicting the party Endicted Trin. 23. Car. B. r. Q. In what cases for I conceive it holds not in all An Endictment lies against one that makes a false oath in an answer to a Bill in Chancery or in an Affidavit made in a cause depending there or in any other Court of Record Trin. 23. Car. B. r. But Q. for what false oath made in an answer it lieth for it hath been held that though the whole answer be not in all points true yet an Endictment lies not because answers in the Chancery are drawn by Councel and not the party himself Where the party Endicted is Out-lawed upon the Endictment the Court will not quash the Endictment although it be erroneous but will force the party Out-lawed to bring his Writ of Error to reverse the Out-lawry Mich. 23. Car. B. r. An Endictment may be amended the same Term it is brought into the Court by the Clerk of the Peace but the next Term after he cannot amend it Pasc 24. Car. B. r. If onely a word of form be left out in an Endictment yet the Endictment is good but if one word of substance be omitted the whole Endictment is naught Pasc 24. Car. B. r. An Endictment of forcible entry doth lye for a Tenant for years who is forcibly put out of his possession By the Statute of 21. Jac. Pasc 24. Car. B. r. Upon an Endictment preferred against one in the Kings Bench there doth issue out an Attatchment against the party Endicted to force him to appear Pasc 1650. 1. Maii. B. S. Execution An Execution may issue forth out of this Court notwithstanding a Writ of Error be brought in the Exchequer Chamber to reverse the Judgement given here and upon which the Execution is grounded if this Court be satisfied that there is no Error in the Judgement or if the Record be not duly removed out of this Court by the Writ of Error Mich. 22. Car. B. r. One may pray for Execution upon a Judgement given in the Court where it was given although a Writ of Error be brought to remove the Record and to reverse the Judgement if he that brings the Writ of Error do not assign his errors in due time Mich. 22. Car. B. r. The Court may grant Execution upon a Judgement given although a Writ of Error be brought to reverse the Judgement if the Court be satisfied that the Writ of Error is brought meerly to delay the party from his Execution Mich. 22. Car. B. r. For the Law doth not countenance delayes but delights to have speedy Justice done to all parties though it loves not to surprise any person by over hasty proceedings If Execution be not taken within two years after Judgement is given in a Cause there must be a Scire facias taken out to revive the Judgement and Execution cannot be taken out Mich. 22. Car. B. r. But this Scire facias may be taken out of course without moving the Court But if Execution be not taken out in seven years after or longer then a Scire facias cannot be taken out to revive such a Judgement without moving the Court but upon motion the Court will grant it The Court will not deliver one out of prison that lies there in Execution upon an Affidavit But the party may have a Writ of Supersedeas to Supersede the Execution if there be cause Trin. 24. Car. B. r. Be the matter contained in the Affidavit never so strong for the prisoner because he lies in prison by matter of Record and must be delivered by an Act of as high a nature which an Affidavit although it be made before a Judge of the Court and is filed in Court is not The Court cannot divide an Execution
Mich. 22. Car. B. r. For the Law doth not favor the poor to do injury to others but to help them to recover their right If one that doth doth sue in forma pauperis be non-suite at the tryal he must pay costs to the Defendant or else be whipped Pasc 1652. B. S. For the Law will Judge he had no cause of Action and therefore he must make satisfaction to the Defendant for injustly vexing of him and if he cannot do it by his purse be shall do it in his person If it be proved unto the Court that one who sues in forma pauperis is a vexatious person and hath many frivolous Suites depending the Court will Dispauper him 1654. B. S. For this will be a means to make him less contentious Rolle Chief Justice said That he did not use to admit any one generally to sue in Forma pauperis but onely to sue so in one Cause by vertue of that admittance 1654. B. S. Forfeiture If one take a wife that is Seised of Gavel-kind Lands and she dyeth without issue by her husband her husband shall be Tenant by the curtesie of half of the Lands so long as he shall live unmarried but if he marry again he shall Forfeit his estate in the Lands Mich 22. Car. B. r. This is by the custome of Kent but by the same custome if he had issue by his wife then he shall be Tenant by the curtesie of all the Lands his wife was seised of and although he do marry again he shall not Forfeite his estate Mich. 22. Car. Q. Whether in the former Case he shall forfeit his Tenancy by the courtesie if he do live incontinently If a Lease be so made that it is to be Forfeited if the Rent reserved in the Lease be not paid as the Lease doth provide although the Rent be not paid accordingly yet there is no Forfeiture to be taken if there was not an actual and Legal demand of the Rent made by the Lessor Mich. 23. Car. B. r. For the Law doth not favor defeating of estates If a Copy-holder do deny to pay unto the Lord the fine which is ascertained due unto him by the Copy-holder or do refuse to appear at his Lords Court and to do his Suite there this is a Forfeiture of his Copy-hold estate Trin. 24. Car. B. r. For he holds his Copy-hold of the Lord upon these conditions If a Copy-holder do let his Copy-hold unto another for years and the Lessee do sell the Timber growing upon the Copy-hold yet this is not a Forfeiture of the Copy-hold estate 6. Nov. 1650. B. S. Franchise Nor Franchise shall be allowed in any case where the Franchise doth fail to administer justice within the Franchise but if there be such a failer this Court by their Authority may intermeddle notwithstanding the priviledges of the Franchise to compell them to do Justice Mich. 22. Car. B. r. For priviledges are not granted to protect men in neglecting to do right or to do wrong Fees In such Cases where the Sheriff is to have Fees there he is not bound to execute his Office in returning of Writs c. untill the Fees that are due unto him be tendred unto him 22. Car. B. r. The Statute of 23. H. 5. which doth give Fees to Sheriffs doth onely extend to their executing of Writs of Execution 22. Car. B. r. There are no Fees due to the Sheriff by the Common Law by the Subject for executing his Office but the King ought to pay him his Salary Mich. 22. Car. B r. For as the people do owe Alleigance to their King so the King doth owe Justice and protection unto his people An Action of Debt doth lye for a Councellor or an Atturney for his Fees against him that retained him in this cause Mich. 22. Car. B. r. Q. Whether it lye for a Councellor If a Clyent when his business in Court is dispatched doth refuse to pay unto the Officer in Court the Fees which are due unto hâ—m for doing his business the Court will upon motion grant an Attatchment to the Officer against the Clyent to â—ave him committed untill he pay the Fees due By Rolle Chief Justice 1650. Felony Where one is doing of an unlawful act and the death of any person ensueth upon the doing of that act though the death of the party was not intended by him that did the act yet this is Felony Pasc 23. Car. B. r. If one be committed to the Goal for one Felony the Justices of the Goal delivery may enquire and try him for another Felony for which he was not committed By Bacon Justice Trin. 23. Car. B. r. It is Felony to personate a Baile By Bacon Justice Mich. 23. Car. B. r. Q. Whether the procuring of one to personate a Baile be Felony The receiving onely of stolen goods is not Felony but the receiving of them and comforting the Felon is Felony Pasc 24. Car. B. r. For he may receive them and not know them to be stolen but the comforting the Felon doth prove that he consented to the Felony If one be set upon in the High-way or other place to be robbed and he do cast away his goods with an intent to save them from the robber and the robber doth take them up and carry them away this is a robbery and Felony committed to the person of the party robbed although he took nothing from his person Mich. 1649. B. S. For the party is robbed of his goods and the thief knew them to be the parties goods and came with an intent to take them from him had he not cast them away One ought not to be arrested upon suspicion of Felony except that there be good cause shewed for the ground of this suspicion 1649. B. S. For every foolish fancy or conceit is no ground of a suspicion sufficient to arrest one for so high a crime It is Felony to take a Bill from off the File after a Verdict in the cause for which the Bill was sued forth Mich. 1649. B S. For this is embezeling of a Record The robbery of a servant of his masters money in his custody if it be in the presence of his master is robbing of the master Mich. 1649. B. r. A robbery shall be said to be done in that Hundred where the party robbed is first set upon although his goods be taken from him in another Hundred Mich. 1649. B. S. For there the robbery was begun and the peace first broken A Hundred shall not be charged for a robbery committed within it upon the Statute of Winchester in Crepulsculo or twilight that is when it is neither perfect day nor perfect night but if it be committed by day light although it be before the rising of the Sun or after the setting of it the Hundred shall be charged 31. Oct. 1650. B. S. A Hundred shall not be charged for a robbery committed within it in the night because hue and cry cannot be made in
the night for that is a time for rest 1650. B. S. If a robbery be begun in the day light but is not ended till dark night yet the Hundred where it was done is chargeable for it by the Statute of Winchester 1650. B. S. Fee simple A Feffment made of Lands to one and his Heirs Males is a Fee simple Mich. 23. Car. B. S. For it is not an estate comprised within the Statute of West 2. De donis conditionalibus False Imprisonment An Action of False Imprisonment doth lye against a Baily by the party that is Arrested by him after the Writ is returned by Warrant whereof he was Arrested Hill 23. Car. B. r. For this is all one as if he were Arrested without a Writ for by the return of the Writ the Sheriffs and Bailiffs power are at an end as to that Writ If a procedendo be unduely obtained and the party against whom it is had be thereupon taken and imprisoned an Action of False Imprisonment doth lye by the party Imprisoned against him at whose Suite he is Imprisoned Mich. 24. Car. B. r. Feoffment A Feoffment made of Lands unto a Fem Covert is a good Feoffment in Law untill the husband do disagree to it Hill 23. Car B. r. Q. If the husband do not know of the Feoffment made and after the Feoffment doth dye what the Feoffment shall operate Foundation None hath power to Found a free Chappel but the King Hill 23. Car. B. r. For it is as much as to create a new Tenure The Foundation of a thing may alter the Law as touching that thing Hill 23. Car. B. r. Fiction of Law The Law ought not to be satisfied with Fictions where it may be really satisfied Pasc 24. Car. B. r. Yet in some Cases Fictions of Law are necessary and to be allowed Gavel-kinde IF one take to Wife a Woman Seised of Gavel-kind Lands and the Wife dye without having had any issue of her body by her husband yet the husband shall be Tenant by the courtesie of half of the Lands during the time he continues unmaryed But if he marry he shall forfeit his Tenancy by the courtesie But if he had issue by the Wife if the Wife dye he shall be Tenant by the courtesie of the whole Land and although he do marry he shall not forfeit his Tenancy by the curtesie Mich. 22. Car. B. r. This is by the custome of Kent Guardian A Gardian of an Infant may acknowledge satisfaction upon Record for a Debt which he hath recovered at Law for the Infant Trin. 23. Car. B. r. But it must be a Guardian that is Assigned by the Court to sue for the Insant The Court will Assigne a Gardian to an Infant to sue for him if the Infant do come into Court and desire it of the Court and name the party he desires to have for his Guardian and produce him in Court Trin. 24. Car. B. r. Good Behaviour If one do affront any Court of Justice this is a good cause to bind the party to his Good Behaviour Pasc 24. Car. B. r. For the affronting of justice is a publike misdemeanor and not a private although it be done but to the person of one man as to the Judge of a Court a Justice of peace c. He that doth upon Articles sworne in Court desire the party against whom the Articles are sworne may be bound thereupon to the Good behaviour must express some speciall matter in those Articles for which he ought to be bound to the good behaviour For if the Articles be only generall the good behaviour is not to be granted upon them Mich. 22 Car. B. r. For a generall accusation is no accusation for the incertainty of it Perjury is not an offence for which the party perjured may be bound to the Good behaviour Mich. 22. Car. B. r. But the party may be endicted for it and fined if he be thereupon convicted One was bound to his Good behaviour for affrighting people in the night in their houses by shooting off of Muskets and for the assaulting of one going in the high way Mich. 22 Car. B. r. A woman that is a common scold may be bound unto the Good behaviour Mich. 22. Car. B. r. For she is a common disturber of the publique peace The Good behaviour was granted against one upon an Article sworne against him that he had maliciously pulled down a piece of anothers house Hill 22. Car. B. r. A Justice of Peace ought not to binde any person to the Good behaviour upon a generall accusation made against the party Pasc 23. Car. B. r. One was bound to his Good behaviour for stopping of a Constable from making pursuit after a felon Trin. 23. Car. B. r. For this is a publike offence against the Common-wealth The Good behaviour is not to be granted against one for speaking of words only against one person but it may be granted against one for speaking of words against divers persons at severall times Hill 23. Car. B. r. For that is a generall misbehaviour The Good behaviour was granted against one upon an Article sworne and read against him that he said that he would burn down another mans house Hill 1649. B. S. Heire THe word Heir is nomen collectivum and extends unto all Heirs Trin. 23. Car. B. r. The Heir is favoured at the Common Law for at the Common Law the Ancestor could not convey away his Lands from his Heir at Law upon his death bed without the consent of the Heir Hill 23. Car. B. r. The Law is the preserver of Inheritances Heriott A Heriott is the fruit of a Rent-service Hill 21. Car. B. R. This is to be meant of Heriott service and not of Heriott Custome Habeas Corpus If a Prisoner appear in Court upon a retorne of a Habeas Corpus to remove him hither and there doth appear by the return that there was good cause to commit the prisoner to prison and to detain him there the Court will remand or send him back to the place where he was first committed but if upon the retorne it doth appear that there was no lawfull cause to commit him then the Court will discharge the prisoner but if it be doubtfull to the Court whether he was lawfully committed or not then the Court will bail the prisoner Hill 21. Car. B. r. Trin. 23. Car. B. r. A Habeas Corpus ad respondendum is when any one is imprisoned at the suit of another upon a legall process in the Fleet or any other prison except the Kings Bench prison and a third person would sue that prisoner in this Court and cannot because he is not in custody of the Mareschall of this Court there he may have a Habeas Corpus to remove the prisoner out of the prison where he is into this Court to answer unto his Action here 21. Car. B. r. A Habeas Corpus cum Causa doth remove the body of the party for whom
Car. B. r. A Tenant that is within the distress of a Lord of a Mannor or Leete ought not to serve upon a Jury in a Cause that concerns the Lord Mich. 23. Car. B. r. For it shall be presumed he may not be indifferent in regard of fearing to displease his Lord. After a Juror is sworne he may not go from the Barr untill the evidence be given and the directions of the Court for any cause whatsoever without leave of the Court and although he have leave he must have a keeper with him Pasc 24. Car. B. r. If a Juror be challenged and the Challenge entred by the Secondary that Juror cannot be after that sworne as a Jury man to try that Cause wherein he was challenged viz. at that tryall 24. Car. Pasc B. r. Q. Whether before the Challenge entred he may be sworn Where a tryall is to be for a thing that concerns the Under-Sheriff there the High-Sheriff shall retorne the Jury Trin. 24. Car. B. r. For here shall be no favour supposed but if the tryall concerne the High-Sheriff the Vnder-Sheriâ—… shall not retorne the Jury for there may be presumed to be favour for the servant depends upon the master and not the master upon the servant The Jury ought not to have any writting with them when they go from the Barr which hath not been proved although such a writting hath been given in evidence unto them Mich. 24 Car. B. r. The Jury may finde matter of Record if they do know it of their own knowledge Pasc 1650. B. S. 10. Maii. For a mans own knowledge is more certain than any evidence can be given There are three grand-Juries retorned every Term to serve in this Court every Jury consisting of 16 17 18 19 or 20 Jurors or more Though a man be very aged yet if he be of an able body and not infirm he is not to be excused from serving upon the grand Jury One _____ Butler a man of 72. years of age was denied by Rolle Chief Justice to be excused to serve because he was of an able body Hill 1651. B. S. One that hath no Freehold in the County or is a Constable or a Surveyor of the high-way or is a sequestred person are not thereby to be excused from serving upon the grand Jury Pasc 1651. B. S. By Rolle Chief Justice But Q. of a sequestred person The Jurors that appear at a tryall shall not have their charges allowed them if the Cause be not tryed for want of Jurors Pasc 1652. B. S. For their apparance is to no benefit of any body When a Juror is withdrawn he is strook out of the panell by the Secondary Upon a generall issue the Jury may finde a Record but not upon a nul tyell Record Pleaded 1651. If but eleven of the Jury be sworne if the twelfth man do stand by and hear all the evidence that was given to his fellowes he may be sworne afterwards and pass upon the tryall By Rolle Chief Justice 1654. Pasc B. S. For the Jurors are sworne to try the issue upon the evidence they shall hear so that it seems the time of being sworne is not materiall whether before or after the evidence Q. The Jury may take Depositions taken in Chancery and exemplified there given in evidence to them from the Barr with them but if they be not exemplified they may only look upon them in Court but not take them with them out of the Court 1654. B. S. For to see them is no more then to hear them read Issue Every Issue is to be joyned in such a Court that hath power to try it otherwise the Issue is not well joyned 21. Car. B. r. For if the Cause cannot be tryed the issue is fruitless If an Action of Trespass be brought against two for entring into the Plaintiffs Land and one of them pleads that the Land is his freehold and the other that he entred into the Land by the commandment of him that pleads it is his freehold here is to be but one Issue joyned 21. Car. B. r. For but one of the Defendants claimes an interest in the Land and the other justifies but as a servant unto him and if the tryal pass for him that claimes the interest there is no colour of Action to be maintained against the other If there be a Demurrer to an evidence and the party whose evidence is demurred unto do plead to the demurrer and joyn Issue with the Defendant upon it this Issue must not be joyned upon a matter in fact in the evidence but that must be agreed or else the Issue is not well joyned for the Court are not to try matter of fact for that would be for them to give a verdict Mich 22. Car. B. r. Whereas the Court are only to declare the Law whether admitting that all the matter given in evidence by the Plaintiff be true it doth prove the Issue in question or not By the Rules of the Court if the Plaintiff will not try his Issue after it is joyned in such time as he ought by the course of the Court to do the Defendant may try it by Proviso if he will Hill 22. Car. B. r. That he may free himself if he can of the danger and trouble he may be subject to by the depending of the Action brought against him and to recover his dammages for his unjust vexation A judgment may be entred as to one part of an Issue and a nolle prosequi to another part of the same Issue Pasc 23. Car. B. r. This is only where the Issue may be divided Where there is a demurrer to part of an Issue and the other part of it remains to be tryed by a Jury the Tryal of it may be either before or after the arguing of the Demurrer at the Election of the Plaintiff Pasc 23. Car. B. r. For the Demurrer and the Issue have no depondancy one upon the other Every issue ought to be joyned upon the most material thing in the Cause depending that all the matter in question between the parties may be tried Hill 23. Car. B. r. For else the triall will prove to little purpose If an Issue be once joyned between the parties this Issue cannot afterwards be waved except both parties do consent unto it although the Issue be but in paper and not engrossed in parchment Trin. 24. Car. B. r. Therefore it is good to be well advised before the Issue be joyned The place ought not to be made part of the Issue in a transitory action Trin. 24. Car. B. r. For the place is not material as it is in a real and mixt action An immaterial Issue joyned which will not bring the matter in question to be tried is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader 26. Jan. Hill 1649. Pasc 1650. 4. Maij. B. S. For this is matter of substance For if there was no Issue there could be no Verdict
a Messuage is an entire thing of it self and cannot be apurtenant to another thing Non-sute UPon a Trial when the Jury comes in to deliver in their Verdict and the Plaintiff is called to hear the Verdict If he do not appear after he is thrice called by the Crier of the Court he is to be Non-sute and the Non-sute is to be recorded by the Secondary by the direction of the Court at the prayer of the Defendants Councell Hill 21. Car. B. r. When a Plaintiff is Non-sute if he will again proceed in the same Cause he must put in a new Declaration and cannot proceed upon that Declaration whereupon he did proceed in the Cause wherein he became Non-suite 22. Car. B. r. 16. Ap. 1650. B. S. For by his being Non-suit it shall be intended that he had no such cause of Suite as he deelared in and so that declaration is void The King of Spain hath been Non-suit in England Mich. 22. Car. B. r. And this stands with reason for if a foraign Prince will take the benefit of the nationall Laws here he must proceed and stand to the Rules and orders of the Court wherein he prefers his Action If the Plaintiff will not proceed upon his Declaration as he ought to do by the Rules of the Court the Defendant may Non-suit him Mich. 1649. B. S. Although upon a tryal the Plaintiff be called to hear the Verdict and do not appear to hear the Verdict when he is called and thereupon the Court direct the Secondary to record the Non-suite yet if afterwards the Plaintiff do appear before the Non-suite be actually recorded the Court may proceed to take the Verdict Trin. 1651. B. S. For it is not a Non-suit untill it be recorded by the Secondary and then it is made part of the record and is in the nature of a Judgement against the Plaintiff If the Plaintiff be not ready at the tryal with his Record when the Jury is called the Court will call him Non-suit By Rolle Chief Justice 1651. B. S. For it shall be intended he will not proceed in his cause any further Nolle Prosequi A Nolle Prosequi is where there are divers Issues joyned between the Plaintiff and the Defendant and the Plaintiff enters upon the Roll a Nolle Prosequi That is to say that he will not proceed upon one or more of the Issues joyned and yet he may proceed to tryall upon the rest of the Issues Hill 23. Car. B. r. Nusance A Nusance made in a Port or Haven by the sinking of a Ship there ought to be removed by the owner of the Ship and if he do it not he may be endicted for it as for making a Common Nusance 21. Car. B. r. For it is prejudicial to the Commonwealth in hindering of Trade An Action upon the Case ought to be brought against one that makes a private Nusance and he ought not to be endicted for it Pasc 23. Car. B. r. For Endictments ought to be in the Kings name and do presume to be preferred for offences done against the publike A common Nusance may be abated or removed by those persons who are prejudiced by it Pasc 23. Car. B. r. Nomine Poenae A Nomine Poenae for the non-payment of a Rent ought to be legally demanded if the Rent be behind as well as the Rent is to be demanded before the grantee of the Rent can distrain for it 21. Car. B. r. For the Nomine Poenae is of the same nature as the Rent is and is issuing out of the Land out of which the Rent doth issue Notice The Plaintiff and Defendant are both bound at their perill to take notice of the general Rules of practice of this Court but if there be a special particular Rule of Court made for the Plaintiff or for the Defendant he for whom the Rule is made ought to give Notice of this Rule unto the other or else he is not bound generally to take notice of it nor shall be in contempt of the Court although he do not obey it Pasc 24. Car. B. r. Mich. 1649. B. S. For general rules are the general practice of the Court whereof every one must take Notice of that hath to do there but particular rules are made upon particular and extraordinary matters happening in the proceedings upon the motion of one of the parties made to the Court of which the other may be ignorant The Court is bound Ex Osicio to take Notice of all matters which do appear upon the Record depending before them but of matters Dehors viz. to search the Almanack for dayes and to compute times mentioned in the Record they are not bound Ex Oficio to do it 21. Car. B. r. 24. Car. B. r. Q. The Court is not bound to take Notice of the new stile but of the old English stile 21. Car. B. r. For the old is that whereby all accounts in the Common Law are guided and not by the new which is foreign and goes ten dayes before the English stile or account The Plaintiff ought to give the Defendant eight dayes Notice exclusive before he executes his Writ of Enquiry of Dammages or else the Court will quash it although he have executed it and put him to a new Writ of Enquiry upon the motion of the Defendant made to the Court of his want of such Notice and proof thereof by Affidavit Trin. 22 Car. B. R. and Pasc 1652. B. r. Exclusive is meant that the day upon which the Notice is given is not to be one of the eight dayes but the Writ is to be executed upon the ninth day and so long Notice is to be given that the Defendant may have time sufficient to defend himself by his Councel and Witnesses upon the evidence given against him before the Sheriff and the Jury by the Plaintiff The Common Law doth not take Notice of the intentions of the party to do any unlawful Act except it be in case of high treason Trin. 22. Car. B. r. For mans Law is to regulate the words and Actions of men and not the thoughts of which it cannot have conusanse But Gods Law extends to the thoughts This Court is to take Notice of a general Ordinance of Parliament viz. such a one as concerns the Publique but not of a Parliament Ordinance which concerns some particular persons Mich. 24. Car. B. r. Except such particular Ordinance do appear before them by pleading or otherwise If a Declaration be put into the Office although it be not filed yet is the Defendants Atturney bound to take notice of it Mich. 22. Car. B. r. For it is the Duty of the Plaintiffs Atturney onely to put the Declaration into the Officer and the Officer in the Office is to file it and though it be not filed yet may the Defendants Atturney take a Copy of it None is bound by the Law to give Notice to another of that which that other person may otherwise inform himself
a Trial there he must give the Defendant new Notice but if such Trial be to be the next Term after the reference it is not necessary to give new Notice of it for it may be tried by proviso Trin. 1652. B. S. If one give Notice of a Trial to the Defendant and yet doth not try his Cause at the day appointed but do defer his Trial for longer time than one Term after If after that he will try it he must give a whole Terms Notice before his Trial but if he try it the next Term after there needs no new notice For if the Plaintiff try it not than the Defendant may try it by proviso Trin. 1652. B. S. If an Action be laid in London and the Defendant do live fifty miles off the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes Notice of the Trial before he proceed to it By Rolle Chief Justice In regard of the distance of place it is fit he should have time for his travel and to prepare for his Defence If the Defendant will try the Cause by proviso he ought to give the Plaintiff due Notice that he will try it and may not take advantage of the Notice formerly given by the Plaintiff 1654. B. S. Because it lies in the Election of the Defendant either to try the Cause by proviso or not to try it And the Plaintiff cannot presume he will try it being Defendant in the Action except the Defendant give him Notice that he will try it If one give Notice to another that he will move the Court in one thing and tell him in what and at the time he moves the Court in another matter and not in that whereof he gave Notice that he would move the Court in This is not good Notice of the motion but the Court will give the partie further time to answer the motion By Rolle Chief Justice For by such deceitfull Notice the party concerned cannot prepare to answer the motion Notice given to the party concerned by the Councel in the cause that he intends to move the Court against him at such a time is not to be taken by the Court for good Notice upon the bare averment of the Councel at the Barre that he gave such Notice but if the Councel will make Affidavit in writing that he gave such Notice the Court will allow it This Court is not bound ex officio to take notice of private Orders made by the Councel of State By Rolle Chief Justice For they are matters but of particular concernment and not matters of Law or publique businesses whereof as Judges they are to take Notice Notice given in the night of a robbery by the party robbed with an intent that Hue and Cry should be made after the Fellons is good Notice according to the Statute if it be given in convenient time after the robbery was done By Rolle Chief Justice It is not necessary to give Notice of a robbery to the Vill that is next within the Hundred where the robbery was done and unto that place where it was done For if the next Vill be out of the Hundred yet Notice given there is good Notice according to the Statute of Winchester Non omittas If the Bailiff of a Liberty do not retorn a Warrant made upon a Latitat out of this Court to arrest one within the Liberty directed unto him the party that is prejudiced by his not making a retorn of it may by the course of this Court have a Writ called a Non omittas directed to the Sheriff of the County in which the Liberty lies commanding him to enter into the Liberty and to make Execution of the Writ viz. the Latitat 21. Car. B. r. For Liberties must not be priviledged to hinder or delay the Execution of Justice and if they or their Ministers do neglect their duties herein this Court may intermeddle notwithstanding their priviledges to put the process of this Court in Execution that the Law may receive no obstruction by them Negative preignans A Negative preignans is when two matters are put in Issue in one plea. Hill 23. Car. B. r. And this makes the plea to be naught because the Plaintiff cannot tell in which of these matters to joyn Issue with the Defendant for the incertainty upon which of the matters the Plaintiff doth insist upon Oath OFficers of Justice are by the Common Law bound to take an Oath for their due Execution of Justice and if they refuse to take such an Oath they may be imprisoned for refusing to take it Trin. 22. Car. B. r. So carefull is the Law to have Justice done to all parties One that is to testifie on the behalf of the King upon an arraignment of a Felon cannot be examined upon his Oath for the prisoner against the King but he may be examined without giving him his Oath Mich. 22. Car. B. r. He is suffered to give his testimony for the prisoner against the King and without his Oath in favour of life The Court will rather believe the Oath of the Plaintiff than the Oath of the Defendant if there be Oath against Oath because it is supposed that the Plaintiff hath wrong done him and that the Defendant is the wrong doer and may therefore be rather supposed to swear falsly to protect himself from the Law than the Plaintiff that is forced to flie to the Law to obtain his right Pasc 23. Car. B. r. One that is to be a Witness in a Cause may have two Oaths given him one to speak the truth to such things as the Court shall ask him concerning himself and the other to give testimony in the Cause in which he is produced as a Witness The former is called an Oath upon a Voyre dire Pasc 23. Car. B. r. Obligation One ought not to be admitted to be a Witness to prove an Obligation or other Deed which he takes in the name of another 21. Car. B. r. For if he might be so admitted this would be upon the matter to suffer him to be a Witness to prove a Bond or Deed made to himself which is not reasonable If a Sheriff take a Bond of the Defendant for his apparance to the Action upon which he is arrested by the Sheriff at the Plaintiffs sute and the Defendant doth not appear accordingly and according to the Condition of the Bond the Plaintiff may by the leave of the Sheriff sue this Bond in the Sheriffs name and proceed to Judgement upon it against the Defendant but without his leave it cannot be done but it is at the election of the Plaintiff to sue this Bond or not for he may proceed if he please by amercements upon the Sheriff untill he make a retorn of the Writ directed unto him Hill 22. Car. B. r. For the Bond is only to save the Sheriff harmless against what may befall him if the Defendant do not appear and doth no way concern the
the Court of Admiralty do draw the matter ad aliud examen that is to try it by the Civil Law Trin. 23. Car. B. r. And therefore this Court will use their Authority at any time to stay their proceedings in the Admiralty although the Defendant have by his incautelous pleading allowed their Jurisdiction It is not necessary for him that Libels in the Court of Admiralty to shew in his Libel that the Common Law bath no Jurisdiction of the matter for which he Libels but he that prayes a Prohibition to the Admiralty in this Court must suggest something wherein in respect of the Cause depending there and for which he prayes the Prohibition that Court hath no Jurisdiction of the Cause Hill 23. Car. B. r. For the Admiralty cannot determine whether the Common Law have Jurisdiction or not and therefore it would be a vain allegation but this Court can judge of the Jurisdiction of the Courts of Common Law and can determine whether other Courts do intrence upon their Jurisdictions or not If the Court of Admirality do hold plea of any matter which is not maritime although the thing were done upon the Sea yet this Court will grant a Prohibition to stop their proceedings Hill 23. Car. B. r. For the Court of Admiralty hath only Jurisdiction in maritime Causes viz. such as only concern sea-affairs and not of all matters done at Sea as Contracts c. the Tryal whereof belongs to the Common Law This Court will grant a Prohibition to the Admiralty if there be cause for it although that a consultation have been granted in the Court of Common Pleas in the same cause Hill 23. Car. B. r. This Court ought not to deny the party a Prohibition that doth pray it if there appear cause for a Prohibition for it is not a thing arbitrary or ex gratia curiae to grant it or not to grant it Hill 23. Car. B. r. For to deny it were to deny Justice to the party in denying him the benefit of the Common Law which is every free-born English mans birth-right A Prohibition may be granted to the Spiritual Court after a sentence given in the Cause in that Court for which the Prohibition is prayed if there be cause but the Court will not do it untill they have heard Councell speak on both parts to inform their consciences although before a sentence they use to grant it upon a bare suggestion of the party Tuesday 2. July 1650. B. S. and Pasc 1652. B. S. For a sentence in an Ecclesiastical Court is in the nature of a Judgement given at the Common Law and presumed to be given upon mature deliberation and therefore this Court will not but by good advice make a sentence there given void or hinder the execution of it A Prohibition doth not lie to the Court of Admiralty in the cases of Felony yet if there be cause this Court will grant a Certiorari to remove the Cause hither By Rolle Chief Justice in Dothicks Case 29 Oct. 1650. B. S. Q. Tamen quia curia advisare vult Pleas and Pleadings If an Action be grounded upon a Statute there the Statute must be precisely set forth in pleading but if a Statute recited be but an inducement to the action there it is not necessary to recite the Statute precisely Hill 21. Car. B. r. For if the Statute be not precisely recited the Defendant cannot tell how to plead to the Statute As a plea in bar may go per partes so may in like manner a plea pleaded in abatement of a Writ Hil. 21. Car. B. r. A Plea is then said to go per partes as I conceive when one part of it goes to one part of the Declaration and another part of the Plea answers another part of the Declaration One that appears in Court upon a Habeas Corpus ought to plead the same Term wherein he comes in Hill 21. Car. B. r. If the Defendant do not plead according to the Rules of the Court so that the Plaintiff may enter Judgement upon a Nihil dicit yet if after the Rules are out the Defendant do put in his Plea into the Office before the Plaintiff hath entred his Judgement this Plea is to be accepted and the Plaintiff ought not then to enter his Judgement and therefore it behoves Attorneys to be vigilant in their practice 21. Car. B. r. and 23. Car. Hill For a Judgement upon a Nihil dicit is for want of a Plea but in this Case here is a Plea and if such a Judgement should be entred it would be in facto an irregular Judgement If the Defendant in an Ejectione firmae do not plead in time according to the Rules of the Court the Plaintiff may after the Rules for pleading be out move the Court to set a short day for him to plead which will be granted if the Land lie neer at hand and if the Defendant do not plead at the time set by the Court the Plaintiff may enter Judgement upon a Nihil dicit 21. Car. B. r. But now such motions are not usual for Judgement may be entred of course A forraign Plea is to be put in upon Oath of the Defendant that is he must swear his Plea is true or else such a Plea is not to be received Mich. 22. Car. B. r. Mich. 24. Car. B. r. A forraign Plea is when the Defendant doth plead such matter that if it be true the cause cannot be tried in this Court and in regard that thereby the Defendant doth endeavour to hinder the proceedings of this Court and to delay the Plaintiff therefore the Court will make him swear his Plea to be true that the Court may not be deluded nor the Plaintiff trifled with by a false Plea and if he will not swear his Plea to be true the Plaintiff may enter Judgement for want of a Plea Trin. 1650. B. S. If an Action of Debt be brought upon an erroneous Judgement the Defendant may plead Null tyel Record that is that there is no such Record as he frames his Action upon Mich. 22. Car. B. r. For that which is erroneous is accompted in Law as null and void If the Defendant do plead a dilatory Plea the Court at the Plaintiffs motion will order him to plead such a Plea as he will stand to Mich. 22. Car. B. r. For the Law favours not delayes whatsoever is vainly babled by the ignorant to the contrary And if he be ordered to put in a Plea to which he will stand and he do it accordingly if such his Plea be not good the Court will not permit him to amend it but the Plaintiff shall take advantage of it by demurring upon it or otherwise as he shall be advised In any Action wherein the Plaintiff in case he recover shall only recover Dammages the Defendant may plead in Barre to this Action an arbitrement with satisfaction thereupon made unto the Plaintiff Mich. 22. Car. B. r. For if the Plaintiff have
Car. B. r. And the party that arrested him had been also punished had he not pleaded that he knew not that the party came about his business depending in the Court. One may have a Priviledge in the Land of another by prescription although he hath no title to the Freehold or soil Pasc 23. Car. B. r. For although he now have it by prescription it might arise originally by grant and whatsoever lies in grant may be claimed by prescription One that is Priviledged in this Court ought not thereby to claim his Priviledge to have a tryal at the Bar for to try the title of Lands which he claims in reremainder Trin. 23. Car. B. r. For it is incertain whether the remainder may fall whilst he continues a Priviledged person and for the present he claims no present interest in the Lands Nay though he had a present claim to them yet he ought not to be so Priviledged if the Lands in question be not of a great value or else the title very difficult to be tryed and in such cases any other person though not Priviledged may have a tryal at the Bar. A Priviledged person shall not be allowed his Priviledge upon a motion for it to the Cours but he must appear and plead his Priviledge and upon his pleading it he shall be allowed it Mich. 23. Car. B. r. A Philisers Clerk did claim to be Priviledged in this Court but was denyed it Mich. 23. Car. For though the master may be Priviledged yet the Court takes no notice of the servant The Lord Major of the City of London is Priviledged from all Actions during his Maioralty in regard of his Office except it be for Felony or Treason or Actions which concern Free-hold Pasc 24. Car. B. r. For these are matters of a high nature and it much concerns the Publicke to have speedy Justice to be done in them A Member of Parliament is Priviledged as well in his Lands and goods as in his person By Rolle Chief Justice Mich. 24. Car. B. r. In the Case of the Lord Moon for by being disturbed in any of them he is hindred in serving of the Commonwealth An Atturney of this Court may Plead his Priviledge here after he hath made his defence in the cause in another Court. Pasc 1650. B. S. 4. Maii. For his pleading there doth not take away his Priviledge here but doth onely dispence with it for that time The wife of an Atturney of this Court cannot claim her Priviledge as his wife for the Priviledge is inseperabley annexed unto his person Pasc 1650. B. S. 7. Maii. But if she be arrested her husband must put in Bail for her An Atturney of this Court that is sued as an Executor is not to be Priviledged for he is sued in the right of the Testator and not in his own right Pasc 1650. B. S. 7. Maii. The Prayer of Priviledge is not properly a plea for a Priviledged person did anciently demand his Priviledge by Writ but of latter times the party hath been admitted to his Priviledge upon his prayer to the Court. By Latch Apprentise 1654. B. S. Party and Privy Where one desires to be made a party to defend the title of the Land in question in an ejectione firmae the Court will grant it so that he will confess Lease Entry and Ouster Pasc 23. Car. B. r. In Prince and Warners Case 2. Maii. 1648. But now that rule is enlarged for he must now confess Lease Entry and actual Ouster and must not except against the Jury for want of Hundreders but insist onely upon the tryal of the title and if at the tryal he do not all this then Judgement is to be entred against the Lessors owne ejector Purchase An Alien cannot purchase Lands in England because by this means the Realm would be impoverished by transporting the treasure out of the Realm into foreign Countries and by putting thereby part of the Lands of this Realm that is to say the Lands Purchased by the Alien under the power of a foreign prince Pasc 23. Car. B. r. Praescriptions One cannot prescribe to have two several wayes by one joynt Prescription but he must make several Prescriptions for them Trin. 23. Car. B. r. Two Tenants in Common cannot Prescribe for one Warrein Trin. 23. Car. B. r. That is severally for they cannot both have it severally A Copy-holder for life cannot Prescribe against his Lord by reason of his Copy-hold but a Copy-holder in Fee may Prescribe for he holds his Copy-hold in the nature of an inheritance Mich. 6. Nov. B. S. 1650. Parish A Parish may comprise many Vills within it Hill 23 Car. B. r. 24. Car. Pasc Yet generally a Parish shall not be accounted to have any more then one Vill in it except the contrary be shewed Hill 23. Car. B. r. It shall not be intended that there is more then one Parish in a City except the contrary be made to appear Trin. 23. Car. B. r. For some Cities have but one Parish If the father of poor children leave the Parish and leave his children in the Parish if the children have a Grandfather in the Parish that is able to keep them the Parish is not bound to maintain them but the Grandfather Mich. 24. Car. B. r. If a High-way lye within a Parish the Parish within which it lyeth is bound to repair it of common right if it do not appear that some other persons are bound by Law to repaire it Mich. 1650. B. S. 24. Oct. For it shall be intended that the Parishioners where it lyes have the greatest benefit of it and do make the most use of it Presentation If the King do present to a Church by Laps where he ought to present pleno jure and as Patron of the Church such a Presentation is not good Hill 23. Car. B. r. For the King is deceived in his grant The King may present to a Church by his letter sent to the Ordinary to institute and induct such an one his Clerk to the Living Mich. 1649. B. S. Q. Whether he may do it by Paroll and it seems to me he may for a letter is but a signification of his pleasure which he may as well signifie by word as by writting Principal and Accessory One that is present and aiding to the stabbing of another is not a Principal but only an Accessory to the stabbing within the Act of 1. Jac. that made stabbing to be murder Hill 23. Car. B. r. Proof Although a record of a thing be lost yet the matter may be proved by circumstances to a Jury Pasc 24. Car. B. r. For the right doth not wholly depend upon the Record but a Record is to make the right more clearly appear and to preserve the memory of it to posterity If a Deed which is to be given in evidence at a tryal be enrolled there needeth no other proof of the Deed then to shew the endorsement of the Enrollment Mich. 1649. B. S. For
amend it if it cannot be done without defacing and much altering of the Record Mich. 22. Car. B. r. The Court will not make application of a Record produced to the matter for which it was produced for the benefit of the party that doth produce it but the party and his Councel must do it Pasc 23. Car. B. r. For if the Court should do it it would be for them to act the part of Counsellors and not of Judges which they ought not to do A transcript of a Record which Record was amended in the Common Pleas may by leave of the Court be amended in this Court by a Clerk of this Court but without leave of the Court nor out of the Court it may not be done Pasc 23. Car. B. r. For a Record cannot be amended without a rule of the Court for that is called the leave of the Court for the Court speaks by their rules The Judges cannot judge of a Record given in evidence if the Record be not sub pede sigilli that is exemplified under seal but a Jury may find a Record although it be not so if they have other matter given them in evidence sufficient to induce them to believe that there was such a Record Pasc 23. Car. B. r. For the Judges are to judge onely de existentibus apparentibus but the Jury are induced by things which are but probable for the most part and accordingly they give their Verdict If a Record be removed into this Court by a Writ of Error and the Defendants Councel in the Writ of Error do not open the Record right as it is unto the Court this false opening of it shall not be prejudicial to the Plaintiff in the Writ of Error but he may examine the Record afterwards and rectifie the mis-recitals Trin. 23. Car. B. r. A Record may be contradictory in appearance and yet may in some case be nevertheless a good Record Trin. 23. Car. B. r. A Record that that is razed remains a good Record notwithstanding the rasure in it yet he that razed it is not to go unpunished for his offence Mich. 1649. Apparent faults of the Clerk onely in Records removed out of inferior Courts into this Court are amendable here by the Statute of 8. H. 6. Trin. 23. Car. B. r. But not other faults or errors in them Neither a Deed enrolled or a Decree in Chancery enrolled are Records but it is a Deed and a Decree Recorded Mich. 23. Car. B. r. For a Record of a Court is made up of the proceedinge in some cause in that Court When a Record is to be spoken unto in Court the Councel at the Bar ought to open the Record before it is to be read by the Clerk in Court by the custome of practice yet the Court may suffer it to be first read if they please Hill 23. Car. B. r. There was a rule of Court made that every Atturney of the Court shall enter the whole Record upon the roll after a Tryal had in the cause before the next Term after the tryal so had upon the pain of twenty shillings to be paid by every such Atturney that shall not do it towards the relief of the poor Hill 1649 B. S. That the Record may be spoken to the next Term after the tryal if there be cause which cannot be done untill the Record be perfected and so by this the not perfecting it the Clyent is delayed A Record cannot be removed by a Writ of Error untill the Judgement in that Record be entred Pasc 1650. B. S. 12. Maii. By Rolle Chief Justice it was the ancient custome to enter the Record of the Cause before the cause was carryed down to the Assizes to be tryed but this course was found to be inconvenient because it could not be amended after the entry of it and therefore now they use not to enter the cause before the tryal be past and therefore he ordered a rule to be set up in the Office that if the tryal do not proceed at the Assizes at which the Record was carryed down to be tryed and the Plaintiff will carry it down again that he give the Defendant new notice of the tryal and so likewise is the Defendant to do where he intends to try the cause by provisoe that the adverse party may not attend with his Councel and Witnesses to no purpose Trin. 1651. B. S. Relief A Relief is the fruit of a Rent-service Hill 21. Car. B. r. And it is twofold that is to say 1. A Relief at the Common Law And 2. a Relief grounded upon a custome Rescous An Endictment for a Rescous returned against one into this Court ought not be quashed although it be erroneous except the party that is endicted for it do appear personally in Court 21. Car. B. r. For he cannot in such a case appear by Atturney because the offence was criminal and personal An Endictment of Rescous ought to express the place where and the time when the Rescous was made or else it is not good for the incertainty of it Trin. 23. Car. B. r. So that the Defendant cannot tell what answer to make for himself An Endictment of one that was Endicted for a Rescous supposed to be made in the fifteenth year of King Charles was quashed for its insufficiency and yet the Rescouser did not appear personally in Court contrary to the common rule observed in such cases the cause thereof seems to be because it was an old Endictment and no proceedings had been made upon it against the party Pasc 24. Car. B. Request Where one is to do a Collateral thing he ought to be requested to do it but where the thing to be done is a part of the contract there needs no Request to be made to the party to do it 21. Car. B. r. For by the contract he hath taken notice at his peril to do it Where one brings an Action of Covenant for not paying of moneys according to the Covenant he needs not alleadge that he Requested the Defendant to pay them but where he brings an Action of Debt for money due by Covenant he ought to alleadge a Request Trin. 23. Car. B. r. Q. Where one is bound to make a special Request for the doing of a thing a general licet saepius requisitus in the Declaration is not sufficient Trin. 24. Car. B. r. For those words are too general and meer matter of form and a special Request ought to set forth the time and place and manner of the Request made In an Action of Debt brought for moneys due upon an Obligation it is not necessary to alleadge a Request Trin. 24. Car. B. r. For the very bringing of the Action is a demand of the money in judgement of the Law and the party was bound by his own Deed to pay the money at his peril One may make a Request by Atturney for the payment of moneys due upon an Obligation Mich. 24. Car. B. r.
avoid trouble and charge which may otherwise befall him by executing the Judgement if he have a violent and malicious adversary After a Writ of Error is brought and allowed by the Court where the Judgement was given for the reversal whereof the Writ of Error is brought the hands of the Court are foreclosed that is stopped from proceeding upon the Judgement any further and there needeth no Supersedeas to be directed unto them nor is it necessary to mark the Rolle Mich. 1049. B. S. For every one ought to take notice of such general Writs as may any wayes concern them If a Writ of Error be brought to reverse a Judgement given upon a nihil dicit the bringing of this Writ of Error is a Supersedeas to stay Execution upon the Judgement notwithstanding the late Statute that enacts that a Writ of Error shall be no Supersedeas to stay Execution upon a Judgement Pasc 1651. B. S. 13. Maii. For that Statute onely extends to Judgements given upon a Verdict and not to Judgements given upon a nihil dicit or upon a non sum informatus or upon a demurrer Surprisal The Court is alwayes very cautious that no person that hath any cause depending before them be Surprised especially in such matters as are finall and penall to the party that is surprised Mich. 1649. B. S. Because by Surprisals the parties Surprised are deprived of making their full defence Setlement If one hath hired a dwelling house in one Parish and be settled in that house but a small time yet this is such a setlement in the Parish where the house is that the Justices of the Peace have no power to make an order to remove the party setled out of the Purish wherein he was so setled except the party so setled be lame or blind or likely to be suddainly chargeable to the Parish where he was so setled Mich. 1650. B. S. 11. Nov. Tryal and Proceedings to it NOtice to an under-tenant of a house or land that there is a Lease of Ejectment sealed and delivered to Try the title of the thing of which he is in possession is no good notice in respect to the upper tenant thereof or to him in reversion whose title is properly concerned and therefore if there be a Tryal and a Verdict and a Judgement in such a case where there was notice onely given to the under-tenant as aforesaid the Court upon a motion and proof of this matter will vacate such a Judgement as a fraudulent Judgement Hill 21. Car. B. r. For it is deceitfully obtained as to him in the reversion whose title is concerned in the Judgement No tryal ought to be had at the Bar the same Term that the Defendants plea is put in but the Term following by the Rules of the Court Hill 21. Car. B. r. Except it be by special rule of Court or in causes depending on the Crown side wherein the King is a party This Court will grant a Habeas Corpus to Try a Felon at the Bar although the Felony was not committed in the County of Middlesex isthere be not a Gaol Delivery in the usuall manner in the County where the Felony was committed Hill 21. Car. B. r. This is done for the expedition of Justice and that the prisoner may not lye long in prison for the Law favors liberty A Tryal in that Court where the issue Tryed was not joyned is not a good Tryal Hill 21. Car. B. r. For there was nothing before them to Try and so it was Coram non judice Where the Plaintiff will not Try his cause in such due time as he ought to do by the Rules of the Court the Defendant may upon warning given thereof to the Plaintiff proceed to the Tryal of it himself Hill 21. Car. B. r. That he may free himself from the Action that is brought against him Justices of Peace may by there Commission Try a murder committed in the County where they are Justices Pasc 22. Car. B. r. But they do not often do it but leave such matters to be Tryed by the Justice of the Gaol Delivery at the Assizes If any of the Defendants Witnesses to be used at a Tryal do live above fourty miles distant from London the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes notice of the Tryal before he Try his cause Pasc 21. Car. B. r. That the Defendant be not surprised for want of sufficient time to get his Witnesses to be at the Tryall Upon a Tryal at the Bar when the Jury is at the Bar and the Court ready and the panell of the Jurors names is delivered to the Secondary he bids the cryer call the Defendant which he doth and if his Councel say they appear then the Secondary bids both parties take heed to their challenges and then proceeds to swear the Jurors but if he do not appear after thrice calling by the Cryer the Plaintiffs Councel do pray the Court the Verdict may be taken by default Trin. 24. Car. B. r. It is called a Verdict by default because if it pass against the Defendant where the Defendant had right and might have defended himself it is not the fault of the Court or Jury but his own that would not appear and defend his cause Where a Tryal is had by provisoe the Plaintiff may be called before the Jury is sworn if the Defendant do require it Trin. 22. Car. B. r. For the Plaintiff is as it were in the place of the Defendant because the cause is brought to a Tryal by the Defendant The Court will not grant a Tryal at the bar except there be oath made that the matter to be Tryed is very difficult or of great value Mich. 22. Car. B. r. In which cases it is fit the Tryal should be at the Bar where Tryals are more solemn and where more time may be spent in the Tryal then can be at the Assizes After a Tryal hath been in a cause the Court ought not to order that there shall be a new Tryal of it except it doth appear that there was a surprisall in the Tryal had or some fraudulent miscarriage in it for if they might in any case they please order a new Tryal this would be for the Court to have an Arbitrary power which the Law will not permit Mich. 22. Car. B. r. For this would weaken the Common Laws to the prejudice of the people Where warning is given of a Tryal to the Atturney in the cause and the Atturney cannot give notice of this warning timely enough for his Clyent to prepare for the Tryal the Court will not force the Atturney to go to a Tryal but will give longer time Mich. 22. Car. B. r. Because the Court will not surprise any person and such Tryals very seldome do determine the business but beget more trouble and charges to both parties Where there ought to have been a place alleadged whence the venue should come and there
parties concerned in the Tryal will not help it Mich. 24. Car. B. r. For such a Tryal cannot be supposed to be indifferent for none ought to be Judge in his own cause A mis tryall is helped by the Statute of Jeofailes but not a voide Tryal to wit where there is no issue joyned to be tryed but in such cases there must be a repleader that the matter in question may be put in issue to be tryed Mich. 24 Car. B. r. The day for a Tryal ought to be entred into the Clerks book in the Office viz. the Clerk of the Papers Mich. 1649. B. S. And before it be so entred there ought not to be notice given at the Tryal Q. Tamen One that is a priviledged person in this Court ought not by reason of his priviledge onely to have a Tryal at the Bar granted unto him but there must be difficulty in the matter to be tryed or else it must be of great value Hill 1649. B. S. 4. Feb. A Tryal at the Bar ought not to be granted before the Defendant hath pleaded and issue be joyned Hill 1649. B. S. 11. Feb. 12. Feb. 1656. For before that the cause is not ready for a Tryal nor doth it appear that the parties intend to proceed to it Tryall Of latter times there hath been twenty Tryals granted to be at the Bar in Easter Term but not above Pasc 1650. B. S. 1. Maii. But anciently not above half the number Although the Defendant do go to a Tryal without sufficient notice given unto him of the Tryal and there be a Tryal accordingly this Tryal is not binding unto the Defendant but he may if he please have a new Tryal granted for want of due notice Pasc 1650. B. S. 19. Ap. For the Rules of the Court are not to be broken by the consent of the parties By the ancient practice of the Court all the Tryals at the Bar which are had in Easter Term ought to be tryed a fortnight before the end of the Term. Pasc 1650. B. S. 1. Maii. And the remainder of the Term was to be spent in other businesses more proper for the Court. In ancient times there were wont to be Tryals in Parliament by Juries but of latter times no such Tryals have been Pasc 1650 B. S. 24. Maii. The prosecutor in an information brought in this Court ought to bring the cause to a Tryal at his own costs but in an Endictment which is folely at the sute of the King he that is Endicted must bring the cause to a Tryal at his own charges Pasc 1650. B. S. 24. Maii. An information is preferred as well for the benefit of the informer as the King and therefore it is reason he should bring it to Tryal at his own charges If at a Tryal the Court do see that one of the parties is surprised but not by any fault or laches of his own but by some other casualty they may in their discretion put off the Tryal to another time untill the party surprised may be better provided for his Tryal Trin. 1650. 3. July B. S. For this is not to delay justice but to give time that clearer justice may be done In criminal causes Tryals may be at the Bar in Hillary Term and in Easter Term but not in other causes Mich. 1650. B. S. But onely in Michalemas and Easter Term. This was the old course but of late in some special cases Tryals have been granted to be at the Bar in Hillary Term and Trinity Term. The Court of Chancery will not stay a Tryal at Law by an injunction when the parties are ready for the Tryal and have expended their costs for the Tryal but after the Tryal they will grant an injunction to stay Judgement Pase 1652. B. S. If the Plaintiff in an Action of Trespass and Ejectment do bring his cause to be tryed at the Bar he cannot compell the Defendant to confess the Lease Entry and Ouster for the Tryal at the Bar was not granted in favor of the Defendant but of the Plaintiff but if the Defendant bring the cause to be tryed at the Bar there he must confess the Lease Entry and Ouster because the Tryal was granted to be at the Bar in his favor Pasc 1652. B. S. If a cause be appointed to be tryed in one Term and the Plaintiff doth not then proceed in his Tryal but rests for a year or more after if he will after so long time try the cause he must give the Defendant a whole Terms notice before his Tryal Pasc 1652. B. S. If a Tryal be had the last day of a Term Judgement cannot be entred upon that Verdict untill the next Term after By Rolle Chief Justice 1652. B. S. Nor till the four first dayes within the Term be passed for so long time hath the Defendant by the Rules of the Court to speak in arrest of Judgement It was said by Rolle Chief Justice that the City of Bristol will not bring a matter to be tryed here at the Bar no more then the City of London will 1654. B. S. If at a Tryal at the Bar in a Trespass and Ejectment the Plaintiff and the Defendant do consent that the Jury shall have a view of the Lands in question there can no Tryal proceed in the cause that Term. By Rolle Chief Justice 1654. B. S. It is not usual to grant a Tryal at the Bar the same Term it is moved for but the next Term after 1654. B. S. Yet sometimes upon special reasons it is done A voluntary Affidavit made before a Master of the Chancery is not to be given in evidence at a Tryal at the Bar. Pasc 1655. For a Master of the Chancery hath not authority to administer such an Oath and therefore if the party did swear falsly it is not perjury nor can he be endicted for it because it is Coram non judice and therefore such oaths are of little credit to be given in evidence If a Tryal be had and a Verdict thereupon given the same issue may not be tryed again by the Jury that tryed it before 1655 B. S. For it is more then probable they will give the same Verdict Traverse A Traverse ought to have an inducement to make it relate to the foregoing matter or else it is not good and formal Mich. 22. Car. B. r. If the Court shall change the venue and lay it in a County where the cause of Action did not arise the party may Traverse the County if he please and so draw the venue into the right County where the cause of Action did arise Trin. 23. Car. B. r. If one will take a Traverse to a Declaration he ought to Traverse that part of it that the doing thereof will make an end of the matter for which the Plaintiff declares and then is the Traverse good Pasc 24. Car. B. r. Where the Defendant hath given a particular answer in his Plea to all the material matters