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
is no place alleadged but an issue is joyned and the venire is de corpore comitasus and a Tryal is thereupon had this is good Tryal and there ought not to be a repleader Mich. 22. Car. B. r. For here is a good pleading and a good issue joyned and well Tryed and a repleader is to be onely where the Pleading is vicious and hath not brought the issue in question which was to have been Tryed If the Court do know that the Jury have given their Verdict against the evidence given unto them they may order a new Tryal to be in the case Mich. 22. Car. B. r. Q. Tamen For the Jury are upon their Oaths and it may be they know something of their own knowledge more then the evidence which moved them to give their Verdict so and the party against whom the Verdict is given is not without remedy for he may bring his Attaint against the Jury yet new Tryals have sometimes de facto been awardes in such oases There may be a good Tryal in a cause although the Defendants plea be ill Hill 22. Car. B. r. For the Tryal depends not upon the plea but upon the issue joyned and if there be a good issue joyned the Tryal is good what ever the plea be Where the Plaintiff will not try his cause after issue is joyned the Defendant may try it afterwards when he pleaseth Hill 22. Car. B. r. That he may free himself from the sute When the Defendants Atturney hath told the Plaintiffs Atturney what plea he will plead the Plaintiffs Atturney may give him warning for a Tryal although the issue be not made up in the cause Hill 22. Car. B. r. For after plea pleaded it is in the Plaintiffs choice whether he will reply or no for he may make up the issue when he pleaseth If a cause to be tryed be not entred into the Judges Book before whom it is to be tryed four dayes before the cause is to be tryed the Plaintiff may enter a ne receipiatur in the Judges book that it may not be entred after that to be tryed at that time if the Defendant please Hill 22. Car. B. r. If upon a Tryal to be had at the Bar the Jury be not ready at the day to try the cause the cause cannot be tryed at the Bar any other day of that Term without the consent of both parties Pasc 23. Car. B. r. For it would be too long to keep the Witnesses in Town to another day and if they should go out of Town it might be too short a time and too much trouble to bring them up again the same Term. The agitation of a cause in one Court is no cause to put off the Tryal of the same cause depending in another Court. Pasc 23. Car. B. r. For the proceedings of one Court of Law ought not to clash with the proceedings of another Court but it is not so betwixt the Courts of Law and the Chancery as it is a Court of equity The King may try his own cause in what Court he pleaseth Pasc 23. Car. B. r. By his prerogatine for they are all his Courts and it is not reasonable he should be streightned in his choice where he will proceed A local matter generally is not to be tryed in a foreign County but in the County where the cause of Action ariseth Pasc 23. Car. B. r. For there may the best knowledge of the matter be had and it is also for the greater ease of the people and less charge If one be committed to the Gaol for one Felony yet the Justices may try him for another Felony for which he was not committed Trin. 23. Car. B. r. By Bacon Justice A Decree in Chancery shall be tryed by a Jury and not by it self for it is not a Record but it is a Decree recorded Mich. 23. Car. B. r. And there is difference betwixt a Record and a thing recorded for a Record is a Judgement or other act recorded done in a Court of Record but the Chancery as it is a Court of equity is not a Court of Record but an arbitrary Court although it be a Court of Record as touching things agitated in the pettibag Office Although the Plaintiff after issue joyned and at the Assizes where he was to try his cause do enter a retraxit yet he may try the cause at the next Assizes after if he please for the retraxit doth onely import that he intends to forbear to try his cause hac vice onely and if he do not try it at the next Assizes after then the Defendant may if he will try it by provisoe and if the Defendant do not then try it by provisoe the Plaintiff may give new notice of a Tryal to the Defendant and try it at the next Assizes following Mich. 23. Car. B. r. One that is not served with process to give his testimony at a Tryal may not be examined upon a veire dire concerning any matter which concerns the Tryal Mich. 23. Car. B. r. A Tryal at the Bar ought not to be had for houses lying within the City of London Mich. 23. Car. B. r. If the Plaintiff give notice to the Defendant that he will try his cause that Term although it be not tryed at the day appointed yet he is not bound to give new notice of a Tryal if he try it any time within that Term for one notice is sufficient for the whole Term. Hill 23. Car. B. r. According to the old use of practice in this Court there ought to be but ten Tryals at the Bar in Easter Term. Pasc 24. Car. B. r. Because Tryals at the Bar are a great hindrance to other businesses which are more proper for the Court yet now they are encreased many times to donble the number If there be warning given for a Tryal and no Jury appear at the day there ought to be a new notice given if the party will try his cause at another day Pasc 24. Car. B. r. The consent of the owner of the Land to make one Ejector to try the title of the Land is good if it be not a plot betwixt him and the Ejector to oust the Lessee of the Land of his possession Mich. 24. Car. B. r. A Tryal at the Bar may not be had by the consent of the parties without leave of the Court Mich. 24. Car. B. r. For the Court is not bound Ex Officio to grant a Tryal at the Bar but it is in their discretion to grant it or not to grant it In a Tryal for substracting of tithes in an Action grounded upon the Statute of 2. Ed. 6. the Plaintiff ought first to begin with the proof of the value of the Tithes before he proceeds to shew his title to them Mich. 24. Car. B. r. It is a mis-tryal for a thing to be tryed before a Judge who hath interest in the thing in question and the request or consent of the
speaking the same scandalous words for the words of one are not the words of the other but they must be severally spoken and consequenly several Actions ought to be brought against them but a Joynt Endictment doth lie in such a Case 27. Jan. 1650. B. S. So ruled by the Court. One may joyn two Debts due upon two several Obligations in one Action and so it is of other personal Actions but it cannot be done in real Actions 6. Feb. 1650. B. Sup. If a Carriers servant or his son conspire to rob the Carrier and do rob him the Carrier not being privy to the conspiracy an Action will lie for the Carrier against the Hundred where he was robbed upon the Statute of Winchester but this matter may be urged to the Jury upon the tryal in mitigation of dammages by Rolle Chief Justice Amendment Original Writs are not amendable at the Common Law for if the Writ be not good the party may have another Hill 22. Car. B. r. The leaving out of the Atturneys name in the Imparlance Roll is Amendable upon a motion made to the Court to have leave to do it but not without leave of the Court so that the Atturnys name be not left out in the Issue Roll for then it is not Amendable Hill 21. Car. B. r. If in a Replevin the Avowant do amend his Avowry before the Term and do pay costs the Plaintiff ought to reply the next Term following but if he pay not costs he is not bound to reply the next Term. 21. Car. B. r. Any fault in pleading which would be Amendable if the cause were depending in an inferior Court may be amended where the cause depends in a superior Court but not è contra 21. Car. B. r. Where two several persons joyn in one Declaration and one of them dye depending the Sute the Declaration cannot be Amended but the other party that survives must have a new Writ for there is great difference betwixt a Joynt Action and a several Trin. 22. Car. B. r. A Plea may be amended upon giving of notice thereof to the other party and paying of costs if the Plea be only entered in Paper but if it be entred in Parchment it cannot be amended for then it is a Plea upon Record Mich. 22. Car. B. r. The Court of the Kings Bench will not Amend a Transcript of a Record removed thither by a Writ of Error out of an inferior Court but they will Amend a Record removed thither out of the Common Pleas if they see cause Mich. 22. Car. B. r. If the Plaintiff desire to alter his Declaration it is in election of the Defendant to take costs of the Plaintiff and to let him amend his Declaration or to refuse to take his costs and to Imparle to the next Term. 22 Bar. B. r. and 1650. B. S. A Return upon a Habeas Corpus or upon a Certiorari to remove Orders of Sessions of the Peace c. cannot be Amended the Term after the Return is made but it may be Amended the same Term in which it is made Hill 23. Car. B. r. The Clerk of the Peace may Amend an Endictment removed into this Court at any time during the Term in which it came in here but afterwards it cannot be Amended Hill 23. Car. B. r. The Plaintiff may Amend his Declaration though it be seven years past since he Declared if it be but in Paper Hill 23. Car. B. r. If the Plea Roll be rightly entred though the Postea be mistaken in the transcribing of it yet the Postea may be amended Paso 24. Car. B. r. A Declaration grounded upon an Original Writ if it be erroneous cannot be amended but if it be upon a Latitat or Bill of Middlesex it may be amended Pasc 24. Car. B. r. If a Transcript of a Record removed out of the Common Pleas into this Court be to be Amended here the Clerk in the Common Pleas is to bring in the Original Record out of the Common Pleas into this Court that the Transcript may be here Amended by the Record it self Trin. 24. Car. B. r. The Clerk of the Assizes may Amend the Postea by his Notes if he be mistaken after that he hath returned it into this Court Trin. 24. Car. B. r. An Indictment removed into this Court may be amended the same Term it came in but not afterwards but upon some extraordinary matter Pasc 24. Car. B. r. After the parties have joyned in Demurrer the Demurrer may be Amended if it be but in Paper Pasc 24. Car. B. r. A Postea may be Amended by the Record in such things whereby the Amendment may not bring the Jury within the Compass of an Attaint Trin. 24. Car. B. r. A Record may be Amended in a small matter after Issue joyned so that thereby the Plea be not altred Trin. 24. Car. B. r. A Record may not be altred by the consent of the Atturneys on both sides without a Rule of the Court and if it be if the party grieved thereby will inform the Court of it the Court will order to make the Record as it was before the Amendment and will punish the Atturneys 3 July 1650. B. S. If the Plaintiff Amend his Declaration though it be by Rule of the Court yet the Defendant may plead do nove The Imparlance Roll cannot be Amended by the Plea Roll but the Plea Roll may be Amended by the Imparlance Roll Mich. 22. Car. B. r. The Court Amends false Latine forme in Bills presented unto them by the grand Enquests by their consents but they may not alter matters of substance in them Mich. 22. Car. B. r. The Plaintiff may Amend his Declaration after the Defendant hath pleaded to it paying costs if it be not entred but if he do Amend it the Defendant may also after his Plea if he will Mich. 22. Car. B. r. And Issue entred upon Record may upon leave by the Court be Amended in a small matter but not in a material thing or in that which will deface the Record Hill 22 Car. B. r. An Original Writ cannot be Amended because the party may take out another Writ Hill 22. Car. B. r. A thing that is Amendable by Statute may be Amended in an upper Court before it be Amended in the inferior Court if the matter be apparent and needs no examination Hill 22. Car. B. r. An Error in the Postea may be Amended but not in the Plea Roll Hill 23. Car. B. r. A Plea cannot be Amended after the Plea is Demurred unto not after Issue joyned Mich. 24. Car. B. r. yet if the Demurrer be but in Paper though it be two or three Terms after the Plea was Demurred unto the Demurrer may be Amended if the party Demurring will pay costs though the other party have joyned in Demurrer 21. Nov. 1650. B. S. A Return of a Habeus Corpus may be Amended in matter of form onely the same Term the Return was made but not
bar the Plaintiff from bringing an Action of account although he do not bring the Action within the time limited by the Statute for before that Statute one that had once cause of Action might bring it at any time afterward without restriction of time and this Action is not mentioned in the Statute Trin. 1650. 20. Junii B. S. An Action of Account doth not lie for Rent alone due and arrear for the Rent demandable is certain but if Rent be behind and there are also other things mixed with it for which the Action is brought then an Action of Account may be brought for both of them together because it is incertain upon the whole matter what is due to the Plaintiff Trin. 1651 B. S. If one receive money due to me upon an Obligation or for Rent due to me I may either have an Action of Account against him as my receiver or an Action of Debt as owing me so much money as he hath received though in both cases he do receive the mony without my consent Trin. 1651. B. S. Auditor Many things are in charge with the Kings Auditors which are not in the Crown Pasc 24. Car. B. r. Auditors Assigned by the Court upon an Action of Account brought to receive the Account are proper Judges of the cause Trin. 24. Car. B. r. Argument Two that are of Councel on one side ought not to Argue for their Clyent both of them upon one and the same day except it be for concluding of all the Arguments which are intended to be made for that party Mich. 1649. B. S. By the custome of the Court. It is not the usual course of the Court for one Councellor to argue the same Case twice By Rolle Chief Justice 12. Nov. 1650. B. S. Aide and Aide Prayer A Tenant for life may pray in Aide of all such persons as are in remainder of estate in the lands for which he is impleaded 1649. 29 Julii B. S. Baron and Fem. AN Action of Debt doth lie against the Husband for goods that were delivered to his Wife if it may be intended that those goods did any wayes come to the use of the Husband Hill 21. Car. B. r. A Fem Covert cannot submit to an Award for the submission is a free Act of will and the will of a Fem Covert is subject to the will of her Husband and so is not free Mich. 22. Car. B. r. But another person may submit to an Award for a matter which concerns the Fem and such a submission is a good submission in Law A Feofment made to a Fem Covert is a good Feofment in Law to pass the Lands if the Husband do know of it untill the Husband do disagree to it for if he disagree from it the Feofment is not good but if he once agree to it he cannot afterwards disagree from it and if he once disagree he cannot afterwards agree to it Q. Hill 23. Car. B. r. A Fem Covert may take a thing though it be not by Deed. Hill 23. Car. B. r. viz. If her Husband consent to it If a Fem sole be indebted to I. S. and afterward the Fem doth marry this Debt is become by the marriage the Debt of the Husband and of the Wife viz. the proper Debt of the Wife and the Debt of the Husband in right of his Wife and the Wife must be sued for this Debt jointly with her Husband and if the Husband dye pending the Suite yet is not the Debt gone but she may be sued for it after the death of her Husband Pase 24. Car. Trin. 24. Car. B. r. Bar in Actions A Recovery in a personal Action is a Bar in all other personal Actions touching the same matter Hill 21. Car. B. r. That is to say it is a good Ploa in Bar to a personal Action brought against the Defendant to say that the Plaintiff did formerly bring an Action against him for the same matter and did recover against him and therefore he prayes the Judgement of the Court whether he shall be permitted to proceed in his second Action In an Action brought to recover a thing from another if a recovery be there upon had by the Plaintiff the Defendant may plead this recovery in Bar of a second Action brought against him for the same thing 21. Car. B. r. A Plea in Bar which doth not give a full answer to all the matter which is contained in the Plaintiffs Declaration is not a good Plea 21. Car. B. r. viz. If it answer not all the material matter of it If the Plaintiff do reply to the Defendants Plea in Bar this replication is a confession in Law that the Plea in Bar is a good Plea although the Plea be not good Trin. 23. Car. B. r. For the Plaintiff hath slipped his advantage of Demurring to the Defendants insufficient Plea by replying unto it If an Action of Debt be brought against one and he Imparles to the next Term yet after his Imparlance he may plead that the Plaintiff is Out-lawed in Bar of the Action Trin. 24. Car. B. r. Baile One that is in Execution is not Bailable by the Law Hill 21. Car. B. r. For Bail is put in to secure the Plaintiff that the Defendant shall perform the Judgement of the Court and now the Law hath determined the matter and there remains onely for the Defendant to perform the Judgement and for the not performing it he lies in Execution Before a Capias is taken out against the Bail the Principal may render his body to the Marshal of the Court and the entry of this in the Marshals Book is a sufficient ground to discharge the Bail and it is not necessary to enter this upon the Record but if the Principal do render his body after a Capias taken out against his Bail it is in the power of the Court whether it shall be accepted or not and they may if they will give the Plaintiff leave to proceed against the Bail notwithstanding the Principals rendring of his body 21. Car. B. r. Because he did it not in due time but hath put the Plaintiff to the charge and trouble of suing out the Capias One that had been Indicted thirteen yeers before for suspicion of murder in poisoning his servant was brought in Court by a Habeas Corpus and was bailed to answer the fact 21. Car. B. r. Though one that is in Execution do bring a Writ of Error to reverse the Judgement given against him yet the Court will not Baile him except their appear unto them very apparent Error in the Record 21. Car. B. r. For else they will suppose that the Writ of Error is onely brought to gain the parties liberty and so to frustrate the Execution One Arnold James that was Bailed in the 44. and 45. yeer of Q. Eliz. upon a Judgement given against him in the Lord Majors Court of London was brought into Court by a Habeas Corpus Trin. 22. Car. B. r.
alter the Taxes if they see cause Taxes ought not to be Taxed untill the Atturneys on both sides be heard for their Clyents before the Secondary Mich. 22. Car. B. r. Except it be where either of the Atturneys doth neglect to appear before the Secondary having notice thereof If an Endictment taken in any County be removed by Certiorary into the Kings Bench and the Court be moved that it may be sent back again into the County where it was taken and if the Court upon good cause shewed doe order it accordingly it shall be removed back again at his costs who dedesires it to be removed Mich. 22. Car. B. r. For it shall be intended that the removing of it is for his benefit and ease When upon a tryall the plaintiff becomes non-suit the Defendant must pay the Jury their Costs Mich. 22. Car. B. r. For it is intended he receiveth benefit by the non-suit If there be any such fault in the entring of a speciall verdict so that it must be amended the Plaintiff or Defendant who was the occasion of making the fault must pay the Costs for the amending it Mich. 22. Car. B. r. if it be such a fault that Costs must be expended to amend it If a tryall at the Barr be put off in favour of the Plaintiff or the Defendant and the party that was not the cause of putting it off be compelled by putting it off to keep his Witnesses in Town he that caused the tryall to be put off shall pay such Costs for keeping them in Town as shall be taxed by the Secondary Hill 22. Car. B. r. If one will give leave to another to sue in his Name he that grants the leave shall pay the Costs of the suit Hill 22. Car. B. r. For he is the person upon record of whom the Law takes notice of and the Court takes no notice of the agreement between the parties Costs are not to be allowed for unreasonable motions but only for such as the party was necessarily put unto by the course of the Court. 22. Car. B. r. Arbitrators are to make the Writings touching their arb trement at their own proper Costs and ought not to award that the parties that submitted to the award shall pay for them Pasc 23. Car. B. r. Where the Judges of the Court doe desire to have Books of the Cause depending before them to be advised of the matter in Law the better by considering of the pleadings the Plaintiff and the Defendant ought to joyn in the Costs for the copying of the Books to be delivered to them Trin. 23. Car. B. r. It is the course of the Court to refer the taxing of the Costs to the Secondary of the Office and not to make any speciall rules for such matters Mich. 23. Car. B. r. No Costs are to be allowed upon a Repleader Mich. 23. Car. B. r. For both the parties were in fault to suffer such an insufficient issue to be joyned It is not necessary that the Jury should give Costs but they may leave it to the Court to doe it Mich. 23. B. r. Upon a Judgment upon a Nihil dicit in the Common Pleas that Court will give Costs and dammages generally Trin. 24. Car. B. r. If there be a speciall verdict found in a Replevin the Costs and dammages shall be given either against the replevyer or against the avowant as the issue shall be found for or against them Pasc 24. Car. B. r. The Court will not order any thing concerning the encreasing or mitigation of Costs but the parties are to attend the secondary in it and to abide by his order 13. Nov. 1650. B. S. Except it be in extraordinary Cases If a Juror appear upon a tryall which is to be at the barr and the Jury is adjourned and he doth not again appear at the day of adjournment he shall have no Charges allowed him for his former appearance 2. May 1651. B. S. Chancery A Master of the Chancery hath not power to take an Oath but in a Cause which is depending in the Court of Chancery 21. Car. B. r. The Chancery is not a fixt Court neither in respect of the place where it sits nor of the time when they may sit for they may sit out of the Terme and what place they please 12. Nov. 1650. B. S. By Rolle Chief Justice Capias A Capias duely sued out may be filed afterwards 21. Car. B. r. Challenge When the Jury appear at a Tryall before the Secondary calls them particularly by Name upon the panel to be sworne he bids the Plaintiff and Defendant to attend their Challenges 21. Car. B. r. It is not a sufficient cause to Challenge a Juror because he had delivered his opinion touching the title of the Land in question Pasc 23. Car. B. r. Q. tamen If one take a principall Challenge against a Juror he cannot afterwards Challenge that Juror for favour and waive his former Challenge Pasc 23. Car. B. r. If the Defendant doe not appear at the Tryall when he is called he loseth his Challenge to the Jurors although he doe afterwards appear Mich. 23. Car. B. r. If one Challenge a Juror and doe not make his Challenge good and after the Jury is adjourned he shall not Challenge that Juror again at another day except it be for some matter which is hapned since the adjournment Mich. 23. Car. B. r. If one Challenge a Juror he cannot afterwards have him to be sworne if the Secondary have entred the Challenge Pasc 24. Car. B. r. Q. Whether he may have him sworne if the Challenge be not entred It is a good Challenge against a Juror to say that he was a Juror in a former tryall for the same Land in question and upon the same title though the tryall was between other parties Mich. 24. Car. B. r. When the Array that is the whole Jury is Challenged the Councell of the party that makes the Challenge must read his Challenge in French and after he hath so read it it is to be delivered to the Secondary who is to read it in Latine 6. Nov. 1650. B. S. Which was then done in a Challenge for want of Hundreders But now by the late Statute this is to be done in English After the fore-man of the Jury is sworne the Array cannot be Challenged 6. Nov. 1650. B. S. For then it is too late for to Challenge the Array is to Challenge the whole Jury A Challenge to a Juror for favour is not accounted to be a principal Challenge If some of the Jury be Challenged for favour they shall be tried by the rest of the Jury their companions upon their Oathes whether they be indifferent to try the matter in question or not without going from the barre when they have heard all the evidence that is given against them by the Councel of the party that takes the Challenge 1655. B. S. In a Case tryed at the Barr between the Earl of Leicester and
certified by the mouth of the Recorder Pasc 24. Car. B. r. By a Custome which they have in the Town of South-hampton if a bastard child be found within the Town and the father of it cannot be discovered he that comes next into the Town after the Childe was found must keep the Child Mich. 24. Car. B. r. It may be they of the Town did time out of minde agree amongst themselves that it should be so By a Custome of the City of Bristol an Action brought against one upon a bare promise of the party that he would pay the money or upon a concessit selvere is maintainable there and so it is by the Custome of London 31. Jan. 1649. B. S. If two persons be found in arrear upon an Accompt grounded upon the Custome of Merchants any one of them may be charged to pay the whole summe that both of them were found to be arrear upon the accompt and this is by the Custome of Merchants 26 Jan. 1650. B. S. If there be a tryal to be had Whether there be such a Custome as is pretended with in the City of London or not this issue cannot be tryed in the Upper Bench but it must be tryed in London in the Hustings 27. Jan. 1650. B. S. By a Custome used at sea the goods in a ship which is taken as prize ought not to be taken out of the ship before the ship so taken be condemned for prize in the Court of the Admiralty By Rolle Chief Justice in the Case betwixt Lever and Smith Mich. 1654. B. S. Compulsion None shall be Compelled by Law to shew or declare any thing of which by common intendment he cannot have knowledge 38. H. 6. f. 3. Mich. 22. Gar. B. r. Counsell and Counsellor A Counsellor ought not to set his hand to a frivolus Plea or Demurrer to delay a tryal Mich. 22. Car. B. r. For it is not fair practise After the Court hath delivered their opinions of the matter in Law depending before them the Counsell at the barr ought not to urge any thing more for the Clyent in that Cause Mich. 22. Car. B. r. For it is uncivil not to acquiesce in the judgement of the Court but to seem unsatisfied therewith One that is endicted for felony may have Counfell assigned him to speak to matters in Law which may arise upon the Endictment Pasc 23. Car. B. r. One cannot have Counsell assigned by the Court upon an Endictment in forma pauperis Pasc 23. Car. Mich. 1649 B. r. But Counsell must be assigned to him by warrant under the hand and seal of the Lord Chief Justice that the Counsell may have it in his hand to shew to the Court if they require Where Councel is Assigned to one that is Indicted for Felony the Councel Assigned ought to be entred upon Record Pasc 24. Car. B. r. County Some part of the County of Chester is not within the County Palatine of Chester Mich. 22. Car. B. r. Where a River doth run betwixt two several Counties there one half of the River belongs to one County and the other half of it belongs the other County Pasc 23. Car. B. r. viz. From the shoar to the middest of the River as far as the River extends in length upon the County Constable If one that is elected to the Office of a Constable do refuse to take his Oath to serve in that Office this Court may send forth a Writ unto him to compell him to do it Mich. 22. Car. B. r. If a Court-Leet do not elect a Constable where they ought to elect one or do not give him his Oath to execute his Office as they ought to do the Quarter Sessions in the County where the Leet lies may do it Mich. 22. Car. B. r. A Constable that is a Constable in one Town cannot execute the Office of a Constable in another Town Pasc 24. Car. B. r. Commission and Commissioners The Commissioners of the Statute of Bankrupt have not authority by the Statute of 1. Jac. to transfer any other Action to any person in order to the recovery of any of the goods of the Bankrupt but onely such Actions as the Bankrupt himself might have had to recover them if he had not been found a Bankrupt Mich. 22. Car. B. r. The King may by his Commission make one or more Deputy Escheators to find an Office after the death of a noble man or for some other special cause Pass 24. Car. B. r. A Justice of Assize may have a special Commission to ride the Circuit alone but if his Commission be generall and according to the Statute he is to have an Associat joyned with him in the Commission Trin. 24. Car. B. r. Sessions If a Court-Leet do not choose a Constable or do not give him his Oath to execute his office the quarter Sessions of the County where the Leet is may do it Mhich 22. Car. B. r. If one speak of a thing to be done at the General Sessions of the Peace it shall be intended to be meant that it was done at the Quarter Sessions Trin. 24. Car. B. r. For that is the most General Sessions being held for the whole body of the County Commitment None shall be committed for a contempt done to the Court if the contempt do not clearly appear to the Court Mich. 22. Car. B. r. Every Commitment to the Goal ought to be made by Warrant under the hand and seal of him that commits the party and the cause why the party is committed ought to be expressed in the Warrant Pasc 23. Car. B. r. This is true of Commitments made by Justices of the Peace in the Country but this Court may commit by Parol Contempt One may be committed for a Contempt done to the Court but the matter of the Contempt must be certain and not doubtfull Mich. 22. Car. B. r. An Attachment lies against one for a Contempt done to the Court Hill 22. Car. B. r. If the Court make a Rule in an Action of Trespas and Ejectment that the Defendant in the Action shall confess the Lease Entry and Ouster and yet at the Tryal the Defendant will not do it the Plaintiff must proceed notwithstanding in his Tryal but he may also proceed in this Court against the Defendant upon his Contempt in not obeying the Rule of the Court Pasc 24. Car. B. r. If one take out Execution upon a Judgement after that a Write of Error is brought in this Court to Reverse the Judgement and after the Writ of Error is allowed in the Court where the Judgement was given this is a Contempt to this Court Trin. 24. Car. B. r. But it is no contempt if the Roll be not marked or notice given to the party of the Writ of Error brought Mich 1649. B. r. The Plaintiffs Atturney is not bound to search the Record whether a Writ of Error be brought or not but may take out Execution upon the Judgement given for his Clyent if
by my acceptance of the rent I have assented to his entry Distress and Distringas The seising of a stray is not a Distress of it for he that doth seise it claims a property in it 21. Car. B. r. And no man can Distrain that which is his own for to Distrain is but to take one thing from another and to put it into the custody of the Law as a pledge for another thing which is due to him that doth Distrain from him that is distrained An amercement lies not against a Sheriff out of his Office for a misdemeanour done by him whilst he was in his Office but a Distringas nuper Vicecomiti lies against him for it Pasc 24. Car. B. r. The Writ of Venire facias for the Sheriff to summon a Jury is retornable by him into the Court and upon the retorne made of it by him there issues out of the Court another Writ called a Distringas Juratores to cause the Jury to appear in Court at the tryal of the Cause if the tryal be at the Barr in this Court or at the Assises in the County where the Action lies if the tryal be to be there Mich. 24. Car. B. r. The Writ of Distringas Jurators ought to be delivered unto the Sheriff so timely that he may warn the Jury to appear four dayes before the Writ is retornable if the Jurors live within fourty miles of the place of tryal and eight dayes if they live further off 13. May. 1651. B. S. Discontinuance A Discontinuance in process is helped if there follow a verdict in the cause and the party do also appear upon the verdict 21. Car. B. r. Q. Whether every discontinuance of process may be thus helped Where a Vouchee may be essoigned and the essoigne is not adjourned this is a Discontinuance but where it is not necessary the vouchee should be essoigned there the want of adjournment of the essoigne makes no Discontinuance Hill 22. Car. B. r. An appeal may as well be Discontinued by the defect of the process or proceeding in it as it may be by insufficiency of the original Writ Hill 22. Car. B. r. The Plaintiff cannot Discontinue his Action after a generall verdict found against him nor after a special verdict is found upon matter of Law arising upon the evidence given at the tryal in the cause 22. Car. B. r. The Plaintiff may Discontinue his Action by the leave of the Court after he hath joyned in demurrer with the Defendant paying Costs to the Defendant if the demurrer was only upon matter of form in the pleading But if the demurrer was as well upon matter of substance as upon matter of form there he cannot Discontinue his Action by leave of the Court Mich. 24. Car. B. r. Except the Defendant will consent unto it A discontinuance of an Action or Suit is not a perfect Discontinuance untill it be entred upon the Roll but if this Discontinuance be to be pleaded it is not necessary to plead the entry of it Trin. 23. Car. B. r. Where a Demurrer is a generall Demurrer whereas it ought to have been a speciall Demurrer this is a Discontinuance and there can be no judgment given in the case upon such a Demurrer Hill 23. Car. B. r. After a Demurrer upon an Arbitration pleaded it is not usual to Discontinue the Action Mich 24 Car. B. r. Demand Where there is a Demand of a thing to be made there the Demand must be a Legal Demand that is it must be made in such manner as the Law requires otherwise he that made the Demand can take no advantage in Law upon this Demand Hill 21. Car. B. r. If there be no place expressed in a Deed where a rent for Land or a nomine poenae or any other thing demandable shall be made the Law doth then direct that the Demand shall be made upon the Land c. out of which the rent or nomine poenae or other thing demandable do issue or go out of Hill 21. Car. B. r. A Demand of a rent reserved upon a Lease made of a Messuage with Lands belonging to it ought to be made at the Messuage because the Messuage is the most eminent part and place of the thing let and most notorious for the Lessee to take the best notice of the Demand 21. Car. B. r. For the Lessee shall be presumed to be more conversant there then in any other place Yet if the Demand were made upon any part of the Land and the Lessor can prove that the Lessee was there and took notice of it I suppose it is a good Demand but if he were not there when the Demand was made Q. whethâ—r it be a good Demand The parties bringing of an Action of Debt for monies due upon an Obligation and the taking of a distress for rent by him unto whom the rent is due is a good Demand in Law of the Debt due by the Obligation and of the rent Trin. 22. Car. B. R. A Demand in a precipe to recover Lands ought to be more certain than a Demand in a Writ of Dowr 18. Nov. 1650. B. S. For Dowr is one of the things favoured in Law Declaration A Declaration may be against one that is in custody of the Marshall of this Court upon an information although he do not appear to an Action Hill 21. Car. B. R. The Plaintiff is not compellable to file his Declararation yet if it be not filed and afterwards judgment is given in the Cause the judgment is erroneous for want of a Declaration Hill 21. Car. B. R. For before it is filed it is not upon record and so there is no Declaration to warrant the judgment If the Plaintiffs Attorney do file a Declaration against the Defendant in the Kings Bench Office the Defendant is bound to take notice of the Declaration at his peril 21. Car. B. r. A Declaration ought not to vary or differ from the Plaint that is the Cause which the Plaintiff doth express in his Writ why he brings his Writ 21. Car. B. r. For the Writ is the ground of the Declaration and that which warrants it If the Plaintiff declare against the Defendant upon a corrupt Contract made against the Statute of 21. Jac. made against Usury he must express in the Declaration that the Defendant corrupte agreavit or else he must shew that the Contract was made pro usura contrary to the Statute 21. Car. B. r. For he must pursue the words of the Statute One may not Declare against one that is in the Kings Bench prison that is not either in custodia Mareschalli or that hath not filed his bail or that is not a priviledged person in this Court 21. Car. B. r. If one be in custody of the Marescall of this Court at the suit of J. S or have put in bail in this Court to the Action of J. S any other person may put in a Declaration against him the same Terme he
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
remedy whereof he desires and obtains the Kings Writ 21. Car. B. r. And in his Declaration the Plaintiff doth more at large express the same matter unto the Court where he brings his Action A Plaint in an inferiour Court is in the nature of an original Writ Pasc 24. Car. B. r. For upon the entring of it the process of the Court doth issue forth to bring in the Defendant to appear and to plead to the Plaintiffs Action Priviledge One that is a Committee-man of a Committee of Parliament if he be not a Member of the House of Parliament is not thereby priviledged from serving upon the grand Enquests which are returned every Term in this Court to take presentments of misdemeanours done within the County of Middlesex Hill 21. Car. B. r. A Clark of this Court is not bound to lay any personal Action which he brings against another out of the County where this Court doth sit Mich. 22. Car. B. r. But by his priviledge he may lay it here notwithstanding the Cause of his Action did arise in another County and he is thus priviledged in regard of the constant attendance he is tied to give in this Court yet in reall Actions he is not thus priviledged For such Actions are local and must be tried in the County where the Cause of Action did arise A Peer of the Realm cannot claim his Priviledge of Peerage in an endictment preferred against him Mich. 22. Car. B. r. Because an endictment is preferred in the Name of the King against whom the plea of Priviledge is not to be allowed but is only to be allowed in civil Causes and not criminal One that hath a Sute depending in this Court is priviledged by the Court from areâ—…ing in coming hither from his house or lodging to follow his Cause and also in departing from the Court back again directly to his house or lodging and if he be arested in so doing the Court upon a motion made to inform them of it will set the party at liberty and punish him that arrested him if he did know he had a Sute depending here and came hither to attend it The wife of an Attorney of this Court if she be arrested ought not to claim the priviledge of this Court not to put in bail to the Action as her husband may if he be arrested but her husband must put in bail for her and for want thereof she is to be committed to prison Trin. 1650. Jun. 25. B. S. For her husband is priviledged only in regard of his personal attendance upon the Court and of that tye which the Court hath upon him in regard of his relation to the Court. Prohibition In a Prohibition prayed to be directed to the Court of Admiralty to stay their proceedings upon a suggestion that they did hold Plea there upon a promise which was made infra corpus comitatus and so not triable there but at the Common Law It was said by the Court that the surmise must be absolute that the promise was made infra corpus comitatus and not that if there was any promise made it was made infra corpus comitatus for this is incertain and upon an uncertain surmise no prohibition can be granted for no Issue can be taken upon it though it should be false Hill 21. Car. B. r. This Court may by the Common Law grant a Prohibition to the Court of Admiralty to stay their proceedings if they hold Plea of any matter which the jurisdiction of their Court doth not extend unto Mich. 22. Car. B. r. A Prohibition doth lie in all Causes wherein a Habeas Corpus doth lie Mich. 22. Car. B. r. For this Court hath power as well to see Justice done concerning a mans estate as to his person Although it be questionable Whether a Prohibition do lie in the Case wherein it is moved for Yet this Court will grant it so that the parties concerned may appear here and plead or demur as they shall be advised to the intent the matter may come in question here and be decided Whether a Prohibition do lie in the Case or not Mich. 22. Car. B. r. And if it shall appear to the Court that a Prohibition doth not lie the Court will then grant a consultation whereby the party that was stopped in his proceedings by the Prohibition may now proceed in that Court to which the Prohibition was directed Mich. 22 Car. B. r. A Prohibition may be granted to the Prerogative Court to hinder them from granting Letters of Administration against the Law Hill 22. Car. B. r. Where there is a Sute depending in the Ecclesiastical Court for a personal Estate and also for Lands a Prohibition may be granted to stop their proceedings there as to the Lands only and they may nevertheless proceed there as to the personal Estate Pasc 23. Car. B. r. For as to the one thy have Jurisdiction and as to the other they have none If the Common Law and the Spiritual Law do differ in the way of their proceedings in matter of substance and the Ecclesiastical Court will proceed according to the course of their Law this Court will grant a Prohibition to stop their proceedings Pasc 23. Car. B. r. For in things doubtfull the Common Law is to be preferred before the Spiritual Law as being the more general Law and more tending to the general good of the people and the publick peace of the Nation If the Court of the Lord Maior of London shall hold plea of a Cause after it is removed into this Court by a Writ of Certiorari This Court may grant a Prohibition to that Court to stop their proceedings there Trin 25. Car. B. r. For after it is removed they have no further Conusance of the Cause A Prohibition may be granted out of this Court to any other Court that doth proceed in any Cause which doth not lie within their Jurisdiction Trin. 23. Car. B. r. For that is to exceed their Authority which this Court will not suffer but is to keep all other inferior Courts within their own bounds A Prohibition may not be granted to an inferiour Court to stop their proceedings in a Cause which doth not lie within their jurisdiction to try after that the Defendant hath allowed the jurisdiction of the Court by pleading to the Action Trin 23. Car. B. r. For it is then too late to move for a Prohibition for he ought before he had pleaded to have demurred to the Jurisdiction of the Court and then if they had proceeded he might have had a Prohibition or without a Demurrer I conceive he may move for a Prohibition and have it The Defendant in the Court of Admiralty may have a Prohibition to that Court after he hath pleaded there although he cannot have it to an inferiour Court after he hath pleaded for an inferiour Court doth not draw the matter in question ad alind examen but do proceed therein according to the Common Law But
a Procedendo that the cause may be removed into London that the Custome may be tryed there for it cannot be tryed here and so if a Procedendo should not be granted the cause would remain untryed and the party that brought the Action would be without remedy Hill 22. Car. B. r. After the Defendant hath filed Baile in this Court a Procedendo ought not to be granted much less after issue is joyned in the cause Pasc 23. Car. B. r. For by admitting of the Bail the Plaintiff hath admitted the jurisdiction of the Court and it is then too late to move for a Procedendo It is not necessary that a Procedendo do agree in form with the Habeas Corpus by which the cause was removed into this Court but it is sufficient if it do agree in the matter with it Trin. 24. Car. B. r. If the Defendant hath put in Bail in this Court upon the removal of the cause hither by Certiorari or Habeas Corpus cum causa if afterwards the Bail be disalowed by the Court if the Defendant shall refuse to put in better Bail such as the Court shall approve of a Procedendo may be granted to the Plaintiff to remove the cause back again to try it where the Action was first said Mich. 24. Car. B. r. For disalowing of the Bail makes the Defendant to be in the same condition as if he had put in no Bail If a Certiorari to remove a cause be returned before a Judge and not in Court and their follows no proceedings in the cause after the Certiorari returned if the party who is concerned will move for a Procedendo he must move for it before the Judge before whom the Certiorari was returned and not in the Court whether the cause is removed Mich. 1649 B. S. Because the Judge hath been formerly acquainted with the return of the Certiorari and may have better knowledge why it was granted and therefore the Court will not intermedle to undo what the Judge hath done Practice If the Atturney for the Plaintiff do tell the Defendants Atturney that he is content to stay for a Plea till such a time and yet doth in the mean time enter Judgment for want of a Plea this is not fair practice but if this be made to appear to the Court the Court will vacate the Judgement and force him to accept of a Plea Hill 22. Car. B. r. For the Law will not countenance fraud and falshood in the proceedings thereof but loves plain and fair practice It is not fair practice for the Defendants Atturney to Demur to the Plaintiffs Declaration without probable cause but onely to gaine time to plead Trin. 23. Car. B. r. For this is apparent cause of delay Peace and Justice of Peace A Justice of Peace in one part of York-shire is not a Justice of Peace throughout the whole County but onely in that division of York-shire where he is authorised by his Commission to be a Justice Hill 22. Car. B. r. This is in regard of the large extent of that County for in other Counties a Justice of Peace in every County is a Justice of Peace throughout the whole County The Peace was granted against one upon an Article sworn in Court amongst others that he did threaten to burn down the Plaintiffs house Hill 22 Car. B. r. For such menaceing words are accounted to be a breach of the Peace and such persons are dangerous persons in the Commonwealth and to be restrained from doing mischief A Justice of Peace ought not to binde a man to his good behaviour upon a general Information and if the party shall refuse to put in sureties for his good behaviour upon such an information yet the Justice ought not to send him to the Gaol for his refusal Pasc 23. Car. B. r. But the information must be particular and shew wherein the misbehaviour consists for accusatio generalis non est applicabilis personae particulari It is the duty of Justices of Peace to attend duly at the quarter Sessions and at the Assizes held for the County where they are Justices Pasc 23. Car. B. r. For there are the most important businesses which concern the Peace and Government of the County managed The Commission of Oyer and Terminer doth extend to Justices of the Peace Pasc 23. Car. B. r. A Justice of Peace may himself actually arrest and commit a Felon for a Felony done in his own view without any Warrant made to another to do it but he may not command one to be apprehended for Felony upon a bare information made against the party but by a warrant under his hand and Seal and not by Paroll Pasc 23. Car. B. r. It is the course used in the Capital Office to continue one that is there bound to the Peace to be so bound during his life but by Rolle Chief Justice this is not reasonable Pasc 1651. B. S. 13. Maii. If the person that is to be bound unto the Peace be a dangerous person and the cause for which he is to be bound do require great security a Justice of Peace may require him to find extraordinary sureties to be bound with him and in what sum he shall judge the cause doth require Pasc 1652. B. S. If this Court do see cause to bind one to the Peace they may do it although no person doth make Oath that he goes in fear of his Life of the party Pasc 1652. B. S. For such Oath is but evidence against the purty that there is cause to bind him to the peace and if the Court be satisfied that there is cause to do it without such evidence the not having of such an Oath is no hindrance unto them to do it If one do swear the Peace in Court against another that is doth make Oath that he goes in fear of his life or corporal hurt of him the party against whom this Oath is made ought to be committed if he do not find sureties for the Peace although there be no Articles exhibited and sworn against him Mich. 1652. B. S. Priviledge A Committee man of Parliament that is not a Member of the Parliament is not Priviledged from serving upon the grand enquest Hill 21. Car. B. r. A Clerk of this Court is not to be compelled to lay his Action out of that County where this Court doth sit Mich. 22. Car. B. r. By reason of the constant attendance he is bound unto in this Court No Priviledge is to be allowed to one that hath an Indictment preferred against him although he be a Peer of the Realm Mich. 22. Car. B. r. For an Endictment is at the sute of the King and against him no Priviledge is to be allowed One that was coming unto this Court to attend upon his cause was arrested as he was coming and was forced to put in Bail but upon a motion and making it so to appear unto the Court he and his Bail were both discharged Mich. 22.
before a Deed can be enrolled the party to the Deed doth acknowledge it before a master of the Chancery that the Deed to be enrolled is his Deed if the Deed be to be enrolled there or before a Judge of that Court where it is enrolled which is a sufficient authority to enroll it and to give credit to the Deed. A provisoe in a Deed which provisoe goes in destruction of the estate passed by the Deed must be punctually proved Mich. 1649. B. S. For the Law doth not favour things which sound in destruction of estates but such things as tend to the affirmance and preservation of them If a Place be named with an alias it is not necessary upon a tryal to prove both the names By Rolle Chief Justice Mich. 1650. B. S. Q Tamen For Crawley when he was Justice was of another opinion A Deed which is enrolled and is not acknowledged before a Master of the Chancery as a Deed which is enrolled act perpetuam rei memoriam and not to pass an estate may be must be Proved by Witnesses if it be given in evidence at a tryal Mich. 1649. B. S. For the acknowledging of it before the master is that which gives credit to the Deed and not the Endorsement of the Enrollment which is but the act of a Clerk in the Office A thing which is Proved to have been and continued for so long time as any one living can remember shall be presumed to have been beyond the memory of man and will be accounted a good prescription Pase 1650. B. S. 11. Maii. Because the contrary cannot be proved Plaint A Plaint is the cause which the Plaintiff doth express in the Writ for which he complains to the King against the Defendant and for which he doth obtain his Writ 21. Car. For as the King denys his Writ to none if there be cause to grant it so he grants not his Writ to any without there be cause alledged for it for as the King is bound to help them to right that suffer wrong so he is bound as much as in him lies to defend his people from causeless vexation A Plaint in an inferior Court is in the nature of an original Writ Pasc 1652. B. S. For therein is briefly set forth the Plaintiffs cause of Action Poor If the Father of Children do leave the Parish where he dwelleth and there is a Grandfather of the Children to be found this Grandfather if he be able is chargeable with the keeping of the Children and not the Parish Mich. 24. Car. B. r. For the tye of Nature is a neerer tye then the Law can or doth enjoyn Presentment A Presentment taken before Commissioners of Sewers was quashed because 1. it did not appear in the Presentment by what authority the Commissioners did sit that took the Presentment And 2. because it did not appear that any of the Commissioners before whom the Presentment was taken were of the Quorum Hill 1649. B. S. As is directed by the Statute that gives them their authority Parliament The Parliament is not accounted to begin untill the first day of the sitting thereof although Writs are returned and many adjournments may be before Pasc 1650. B. S. 21. Maii. The Writs mentioned are meant the Writs directed to the Sheriffs of the several Counties and to the Cities and Borrought to Elect Members for them to serve in Parliament Presidents If there be a special cause to alter the ancient President of a Writ the Cursitors are not to keep the old form but are bound to alter it as the case requires and if they shall refuse to do it this Court will compell them to it Trin. 1650. B. S. Else it would be very mischievous to the people who by that means may have their Writs abated and be put to the trouble and charge of purchasing of new Writs by reason of their willfulness and ignorance Prisoner and Prison One that is imprisoned upon a Capias utlagatum ought to be imprisoned as strictly as he that is in prison upon an Execution Trin. 1650. B. S. 3. Julii For he that refuseth to answer the Law offends in as high if not in a higher nature then he that is condemned by the Law and is to be punished as highly It is the course of the Court when a Prisoner is delivered over by this Court unto the Marshal of the Court to endorse the day of this delivery upon the back of the Writ Mich. 1650 B. r. 20. Nov. This Court may send for a Prisoner out of the Prison of the Marshal Sea without a Habeas Corpus because that Prison doth belong to this Court but they cannot send for a Prisoner out of any other Prison but by a Writ of Habeas Corpus By Rolle Chief Justice Mich. 1650. B. S. Possession If one do make an Entry into the Lands of another and that other doth notwithstanding the Entry keep the Possession of the Lands entred into with his servants and cattel the entry is no entry in Law but if the servants and cattel be put out to gain the Possession he that is put thus out of Possession if he will prove a Possession in himself after this he must prove an actual entry afterward Pasc 1650. B. S. 25. Ap. The proving of ones cattel to be upon the Land in question is not a sufficient proof that he whose cattel they were was in possession of the Land at that time when the cattel were there Pasc 1650. B. S. For the cattel might be upon the Land Dammage feasant Peremptory By the rules of the Court a Peremptory day is not to be given to the Defendant upon a Judgement given against him upon a non sum informatus at the first reading of the record but the Court will appoint a day to hear Councel Mich. 22. Car. B. r. If the Defendant do tender an issue in abatement of the Writ and the Plaintiff doth Demur upon the issue and upon arguing of the Demurrer the issue is over-ruled that is is adjudged by the Court to be no good issue the Defendant is onely to answer over that is to tender a better issue for the over-ruling of the former was not Peremptory to him Trin. 24. Car. B. r. But otherwise it is where such an issue and demurrer is in bar of the Action for there the merits of the cause is put upon it but in the former the validity of the Writ is onely in question and whether the defendant is thereby compellable to plead to the Plaintiff or not If a Peremptory be put off by the Court the party that will take advantage by the putting of it off ought to enter the rule of Court that was made for the putting of it off Trin. 1651. B. S. A Peremptery is when a business is by a rule of Court to be spoken unto at a precise day and if it cannot be spoken unto then by reason of other businesses of the Court the Court in such
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.
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
and the Latin word shall stand Pasc 24. Car. B. r. Q Tamen Where senceless words which signifie nothing are used in a Declaration to express things they shall be accounted voide and idle and shall not hurt the Declaration if it be good without them for no dammages shall be intended to be given by a Jury for those things which were intended to be expressed by those senceless words Pasc 24. Car. B. r. The word videlicet is used to explain the foregoing words in the Deed or other wrighting where it is used and if the words which the videlicit doth usher in be contrary to the preceding words they are voide Pasc 24. Car. B. r. One may upon a consideration dissolve by Paroll an absolute contract Pasc 24. Car. B. r. One may give authority by Parol unto another to take Livery and Seisin for him Mich. 1650. B. S. For he is but an instrument or Conduit Pipe to derive the possession of the Land to another Words ambiguous ought to receive such a con-construction as may make them stand with Law and equity Mich. 1650. B. S. A mark made in the manner following viz. A which is to shew where a clause or word left out and interlined in writing should come in is called a tra By Rolle Chief Justice It seems to be derived from the Latin word trahere to draw because by it the words left out are signified to be there where it is placed to be drawn into the writing 1650. B. S. Witness A Witness who by reason of sickness extreme age or other cause cannot come to a tryal may by order of Court be examined in the Country by a Commission out of the Chancery or before any Judge of the Court where the cause depends and the testimony so taken shall be allowed to be given in evidence at the tryal Mich. 22. Car. B. r. If a Witness be served with the Process of this Court to give his testimony at a tryal and will not come the Court may grant an Attatchment against him for his contempt to the Court and the party may have his Action upon the Case to recover the dammages he received for want of his Testimony Mich 22. Car. B. r. The testimony of one single person is a sufficient testimony for the King in a cause wherein he is concerned Mich. 22. Car. B. r. To wit in criminal causes but Q. Whether it be so in civil causes A Witness that is to testifie on the behalf of the King against one that is arraigned for Felony may not be sworn against the King to give his testimony but the prisoner may examine him desire his testimony without giving him his oath Mich. 22. Car. B. r. If divers persons be made parties to a sute and some of them are either found not guilty or else the Plaintiff will give no evidence against them they may be allowed to be examined as witnesses in the cause whereunto they were made parties Mich. 22. Car. B. r. For now it appears they are not concerned in the sute but are as strangers and indifferent persons He that will make use of Witnesses at a tryal must get them thither at his own peril and he shall not delay the other party for lack of his Witnesses Pasc 23. Car. B. r. For he hath his remedy against his Witnesses if he suffer in his tryal by reason of their absence One that hath but a small Legacy given unto him by a Will may be allowed as a Witness to prove that will but he that hath Lands given unto him by a Wil may not be allowed for a Witness to prove that Will Pasc 23. Car. B. r. For that were to suffer one to swear his own title but in the former case the Law will not intend that any one will forswear himself for a small matter It is not requisite for Witnesses to a Will to set their hands unto it Pasc 23. Car. B. r. Nor for Witnesses to a Deed to do it but it is very prudential to do it the better to keep things in memory A man may be a credible Witnesses that is one of good fame and credit and yet by Rules of the Law he may not be a Witness in the cause wherein he is produced to his give testimony Pasc 23. Car. B. r. For he may be for some by respect not indifferent in that particular cause though otherwise accounted of good credit and repute One that is made Executor of a Will is not to be allowed as a Witness to prove that Will Pasc 23. Car. B. r. For his own interest may be concerned in the proof of the Will If the Councel on both sides at a tryal cannot agree what testimony a Witness in a cause did give the Court will examine him again Pasc 23. Car. B. r. That all things may be clear and without dispute Inhabitants within a Corporation if they be not free of the Corporation may be admitted as Witnesses for the Corporation as a tryal which concerns the Corporation Pasc 23. Car. B. r. For their interest is no way concerned and favor is not a good exception against a Witness although it he against a Juror A Witness may not be compelled to answer upon a voir dire touching a Trespass done for the doing whereof he may himself be lyable to an Action Mich. 23. Car. B. r. For nemo tenetur prodere scipsum One that is of Councel in the cause on one side may be examined as a Witness in it on the other side if he be served with Process to give his testimony therein but otherwise he may refuse to be examined Mich. 23. Car. B. r. For in the former case he is enjoyned by Law to do it which is to be preferred before his Clyent but otherwise it is a voluntary act and it is not civil for him to do it nor is he to be pressed unto it Examination of Witnesses which were taken in perpetuam rei memoriam ought not to be made use of at a tryal until the Witnesses so examined be dead Hill 23. Car. B. r. Pasc 24. Car. B. r. 19. Ap. For they were onely examined for their testimonies to be made use of onely in the case of death One that is any wayes concerned in the same Title of the Land in question may not be allowed as a Witness in the cause although he be no wayes then a party to the sute Pasc 24. Car. B. r. For his testimony tends to the corroboration of his own title One that claims any benefit by a Deed may not be allowed as a Witness to prove the Deed. Mich. 1649. B. r. In regard of his interest One that is to be a Witness at a tryal ought not to be examined before the tryal but by consent of both parties Hill 1649. B. S. The Court will upon a motion grant a Habeas Corpus to have a prisoner in prison upon an Execution in the Mareschal Sea to be at a tryal to be