verdict finds 100 l. the Plaintiff may relinquish 60 l. and have Iudgement for the rest Ask Iustice said that his opinion was that the verdict is incertain and conceiveth that the Iury intended all in the Declaration The Court took time to advise Afterwards Iudgement was given for the Plaintiff Fitton against Richardson Trin 1651. Banc. sup THe Court was moved for a prohibition to the County Palatine of Chester For a prohition to the County Palatin of Chester upon a surmise that they did proceed in the Court of equity at Chester touching the payment of rent reserved upon a lease for years which is a matter tryable at the Common Law and not in a Court of equity The Court answered we will see the Bill whether there be any matter of equity laid in it or no for if there be we will not grant a prohibition and let us also see some presidents if there be any for granting of a prohibition in such cases Powis who moved for the prohibition replyed That in Chester they hold two Courts one for matters of Common Law and another for matters of equity and so they ought to observe the due proceedings in each Court according to the nature of the cause 2ly This Court of the upper Bench is the superintendent Court over all other Courts and a writ of Error lyes out of this Court to Chester and by consequence a prohibition also to restrain the Court of equity there if they shall proceed irregularly 3ly There would otherwise be a faller of justice for the Court of Chancery here cannot grant a prohibition because the matter they proceed in there is no matter of equity Nat. brev f. 44 H. I. Cook rep Corbets case Hob. rep case 98. Owen and Holts case And though a writ from hence doth not run there nor in Wales yet a prohibition is grantable to Wales and therefore why not to Chester Mich. 2. Jac. B. R. a habeas corpus was granted to the County Palatine of Durham and to Barwick and Trin. 1650. C. B. rot 1966. in Iones and Lennards case a prohibition was granted to Chester Nicholas Iustice cited a case to be adjudged in this Court by Cook chief Iustice that it will not lye de brevi ordinario but in Wales it will ly Hales answered that there is more here than matter of equity and writs mandatory will lye in all places Roll chief Iustice said that Chester hath a Court of upper Bench and they may grant a prohibition there and it appears not to us whether they will grant it or not Prohibition so that we know not whether we need to intermedle Hales replyed that every one is bound by the Common Law and therefore writs mandatoryly at the Common Law which generally concern men as subjects and not concerning private things And 1. It is to be considered that Chesters jurisdiction is derived from this Court and so it is supposed to be subordinate to it and is to be regulated by it 2ly When the matter concerns common right it is not affixed to Chester because it concerns men as subjects at large 20 Iac. Grigs case C. Banc. And this Court sat in Chester in the 22 year of Ed. 1. as may appear by the roll Hill 31. Mich. 29. E. 3. rot a habeas corpus was granted to Durham and the liberty seised into the Kings hands for disobeying it and this Court is the conservator of the liberties of Chester Roll chief Iustice demanded can we grant a prohibition to the Court of equity in Ireland Prohibition If there did appear to be any failer of justice here we would grant a prohibition but there appears not any failer for it may be the party may have a prohibition in the upper Bench there Therefore it is good for us to hear the other party and in the mean time we will advise and then let us see the bill in Chancery In this case Halâ—s said that a prohibition had béen granted to the Lord Maiors Court of London Style against Tullye Trin. 1651 Banc. sup Hill 24. Car. rot 587. SIr Humphrey Style brought a writ of Error to reverse a Iudgement given against him in an Action of debt upon an obligation in the Common pleas for Tullye and Acton Executors of the last Will and Testament of one William Tullye Error to reverse a Iudgment in debt upon an obligation The case was this Sir Humphrey Style and one Thomas Brook were joyntly and severally bound unto William Tullye in an obligation of 120 l. for the payment of 60 l. at a certain day After the day of payment and the mony not paid Thomas Brook makes his Will and makes Mary Brook his wife his Executrix and dyes afterwards William Tullye makes his will and makes Tullye and Acton the Defendants in the writ of Error his Executors and dyes and by his will he releases unto Mary Brook all the debts which Thomas Brook her husband did owe unto him at the time of his death Tullye and Acton prove this will and after bring an Action of debt against Sir Humphrey Style in the Common pleas upon the obligation of 160 l. Sir Humphrey Style demurs to the Declaration and for cause shews that William Tullye by his will had released the Debt to Mary Brooks and upon this demurrer Iudgement was given against Sir Humphrey Style and thereupon he brings his writ of Error wherein the question was whether the debt was released by the will or no Latch of Councel for Sir Humphrey Style argued that here was an actual release and he cited 21 E. 4. f. 8. and a case Trin. 10. Car. and said that a will amounts to a release although it be not made of incorporeal things and the assent of Mary the Executor is not necessary here for this is not like the assent to the accepting of a Legacie and a debt due upon an Obligation made to the Testator is not assets in the hands of an Executor untill it be recovered and this is more than in the nature of a Legacy and here was a great personal Estate and no other creditors are deceived by this release and a devaslavit cannot be here supposed 19 H. 8. Dyer 8 E. 4. f. 5. Dyer 139 Cranmers Case and here is only an exoneration of a thing and no donation of any thing by this release Serjeant Hen. Clark of Councel on the other side argued that the debt was not discharged by the will because this release made by the will cannot take effect till after the death of the Testator and so not at all and such a release was revokeable by the Testator during his life and therefore it cannot be said that it was ever an absolute release But if this release had been in the realty it might peradventure have béen otherwise but it is not so here for the debt now rests in the Executor and it is a devastavit in the Executor to release it for this is but
estate may pass by Attorney and so although here be but a bare power given yet it is well executed notwithstanding his death that gave it 2ly This Letter of Attorney was not countermandable by the Copyholder himself during his life and therefore it shall not be countermanded by his death and though it had been countermandable during his life yet it being not countermanded by him in his life his death shall not countermand it and the custom doth strengthen this power Next this custom is not contradictory for here is no Attorney made but a writing made in the nature of a Letter of Attorney and a power to surrender given by it and it is no more than for one Copyholder to surrender for another which is usual and in Cooks 9 Rep. f. 76. A Copyholder is called an Attorney also Copyhold estates are made by customs and therefore such customs which are to confirm estates are to be favoured in Law although they do differ from conveyances of estates at the Common Law and this custom is not only reasonable but convenient also for the passing of Copyhold estates And this custom enlarges the power of alienations and such customs have generally been admitted good though different from the Common Law And when a custom is become a Law it is very dangerous to alter it and the doing of it would overthrow many estates Ellis Sollicitor General on the other side argued That the custom is not good because it is against the rule of Law That an authority given should survive the party that gave it and a custom cannot strengthen it for a custom ought to be reasonable and agreeing to the nature of the thing which it concerns otherwise it cannot be good for Ratio est formalis causa consuetudinis Dalisons Rep. 32. 1 Instit f. 59. And this cause cannot be reasonable because it cannot give an authority to another to do such a thing for him after his death which he could not do during his life And this custom doth purely destroy the nature of the Common Law and therefore cannot be good And it is against the very nature of an authority to survive and so consequently it is against the nature of the thing Dyer 357. 10 E. 3. f. 5. 18 Rep. Vnyers case The party in his life time might have revoked this authority and therefore his death doth revoke it and by the death of the Copyholder the Copyhold is descended and cannot be surrendred by a dead man and here was no incoation of the estate of the party that is dead and I hold there is a difference betwixt a will and an authority And also here the Letter of Attorney is not pursuant to the custom and therefore it is a void Letter of Attorney 16 Iac. rot 530. Greenwood and Onslaes case Customs are to be taken strictly Copyhold and to be so pursued and it is not so here for here is an addition to the custom and this makes all void Roll chief Iustice Copyholds are much led by the customs of the Manor and me thinks here is little difference betwixtt surrendring into the hands of another Copyholder to make a surrender for him and this case and the variances are not so considerable as to make it void here The Court would advise At another day the case was again put Custom and the Court delivered their opinion that the custom was good and Roll chief Iustice said that the death of the party doth not revoke this writing made in the nature of a Letter of Attorney Revocation for it is strengthned by the custom and it is not like an ordinary Letter of Attorney which becoms void by the death of him that made it Authority Executor for this custom is a Law and the authority here survives as an Executor may sell the Testators lands it he be impowered to do it by the will and therefore the Custom is good and let the Plaintif have judgement nisi c. Child Trin. 1654. Banc. sup AN Action upon the Statute of 5 Eliz. was brought for using a Trade not having served an Apprentiship in it That the Defendant might not plead to the Action Serjeant Fletcher moved that the Defendant might not be compelled to plead because he ought not to be sued out of the County where he useth the Trade Roll chief Iustice proceed according to Law and plead this matter or move it in arrest of Iudgement Rule for we will make no rule Trin. 1654. Banc. sup BY Roll chief Iustice Where an Action on the Case lies and where not an Action upon the case doth not lie against one for causing another to be endicted for a Trespass but for causing one to be endicted for a thing which deserves corporal punishment or a thing which sounds in scandal of the party endicted an Action upon the case will lie Nota. Stevens against Ask. Mich. 1654. Banc. sup STephens brought an Action upon the case against Ask for these words Action on the Case for words Arrest of judgement Adjective words Thou art a common Bastard-bearing Whore and hadst two Bastards by a Butcher and I will prove it Vpon not guilty pleaded and a verdict found for the Plaintif Twisden moved in Arrest of Iudgement that the first words viz. Thou art a common Bastard-bearing Whore are not actionable because they are adjective words and are not positive And for the other words they are not actionable because they were spoken of a Feme Covert who cannot have a Bastard Vpon this the judgement was arrested till the next Term and then Wild moved for judgement for that he conceived that the words taken together are actionable and cited Owen levons case adjudged in this Court to prove it Roll chief Iustice If she were married at the time of the words spoken she could not have a Bastard but yet why should not the words be actionable for the words purport that she was not maried when she had the Bastards and the Iury hath found for the Plaintif Therefore let her take her judgement nisi Barker and Weston Mich. 1654. Banc. sup THe Court was moved that the bail to an Action might be discharged To discharge Bail because they had now brought in the principal and it was but one day after the return of the writ But Roll chief Iustice answered that it may not be because they come in upon the return of the second Scire facias Harvey and Mountney Mich. 1654. anc sup IN this Case the Action being a Trespass and Ejectment and the title concerning Hugh Audley of the Inner Temple the Defendant was by rule of Court at the tryal which was to be at the bar to appear and confess the lease entry and ouster and to stand upon the title only Plaintif non-sute and yet judgement for him yet at the tryal he would not appear upon which the Plaintif was non-sute and yet the judgement was for the Plaintif upon
Action of debt Hogg and Vaughan HOgg brings an Action of the Case against Vaughan for these words spoken of him Arrest of Judgement in an action upon the Case viz. Thou art a perjured Priest and hath a verdict It was moved in Arrest of Iudgement that the words were not actionable for they signified no more than that he was forsworn But the Court held that they must be meant that he was guilty of perjury for which he might be endicted and therefore were actionable Mich. 21 Car. I. Assumes and promiseth to B. that if B. will pay 50 l. to C. his son Action upon the case upon a promise who was maried to D. the Daughter of I. at such a time that he will pay 100 l. to D. his Daughter at such a time B. pays the 50 l. to C. at the time appointed I. fails in payment of the 100 l. according as was agréed B. dies intestate and E. administers and brings an Action upon the Case against I. upon this promise made to B. the Testator and adjudged that the Action did well lie by the Administrator though he should receive no benefit if he did recover Dickenson and Preston Mich. 22 Car. Banc. reg Ter. Pasc 22 Car. rot 251. A Writ of Error was brought by Preston Error to reverse a Judgement in York to reverse a Iudgement against him at York and assigns for Error that the Venire was de Balliva sua whereas it ought to have been de corpore Comitatus and it cannot appear by the Venire to what place the Balywick extends and the Balywick of the City may extend further than the City and upon this the Court adjudged the Venire naught More against Savage 22 Car. Banc. reg MOre Widow brings an appeal against Savage for the death of her Husband Savage appears and demurs to the original writ Demurrer upon an appeal and shews for cause that in one part of the writ instead of the word tunâ— it was tuc which made the Writ incertain To this the Council of the other part answered That it ought to be amended by the Statute of 14 E. 3. and that the Writ ought not for so small a fault to be abated But to this it was replyed that the Statute was only for the amendment of mean process and not of original Writs for original writs were not amendable because the party might purchase a new writ if a former were naught In justification of the writ it was further urged that the word tunc in the writ was a méer formal word and not of the substance of the writ and that the writ would be good enough without it and therefore though it were mistaken it was not so material as that the writ should be thereby abated But the Court answered that an original writ if it be defective in form is abatable if it be not amendable by Statute and conceived that here it being in an appeal where life is in question the writ is not amendable though it be defective but in form neither by the Common Law nor by any Statute Law nor can the party purchase a new writ adjournatur but afterwards viz. 9. Feb. 22 Car. the writ was quashed for the cause aforesaid and because it did not appear that the feme who brought the appeal was wife to the party slain at the time when he was slain It was thereupon moved that the Defendant might be arraigned upon the Count though the writ was abated but the Court held he could not because the Count was founded on the writ which was abated and these books were cited 4 H. 6.14 and 18 E. 3.35 upon view of presidents he was afterwards discharged Luskins and Carver 22 Car. Banc. reg THe Case was this Anne Carver made her last will and testament Prohibition to the Praeâ—ogative Court and a Mandamus and makes Luskins her Executor having bona notabilia in divers Diocesses Luskins proves the will in an inferiour Diocess and not in the Prerogative Court as he ought to have done a stranger sues for Letters of Administration in the Prerogative Court Luskins desires to prove the will there and that he may administer the Court refuseth to admit him to administer the goods except he will put in security to the Court to pay all the Legacies but if he shall refuse will grant Letters of administration to the stranger Mandamus Luskins moves in this Court for a writ of a Mandamus to compell the Prerogative Court to grant him the administration according to the will The Court ruled the other party to shew cause the next day why they should not grant such a writ and were of clear opinion they might do it and to prove it the Countesse of Barkshires case Hill 20 Iac. and the case of St. Burien in Cornwall was cited and the same Term the writ was granted accordingly Fortescue and Brograve 22 Car. Banc. Reg. Tâ—e Plaintiff brings an action for breach of Covenant upon a Deed An action upon a breach of Covenant by deed The Defendant pleads a parol agreement afterwards in discharge of the former Covenant but the Court held the plea not good and took these differences Plea That a parol agreement before a breach of it may be discharged by parol and so pleaded after a breach it cannot be pleaded in discharge without satisfaction also pleaded Concord but a discharge may be pleaded by Deed be the Covenant by Parol or by Deed after a breach and without satisfaction Broome and Evering Hill 22 Car. Banc. Reg. Hill 21 Car. rot 354. A Iudgement was given against the Testator of the Defendant Error to reverse a judgement given in a Scire facias to revive a judgement in debt in an action of Debt for rent and this judgement was revived by a scire facias against the Executor and a verdict thereupon and a judgement was given against him in the Common pleas upon this a writ of Error was brought in the Kings Bench to reverse this judgement and the error assigned was that the tryal was insufficient because the Venire sacias was not good and is not helped by the Statute of Ieofails and to prove this Baynams case in the 5th Report was cited But Hales answered that the Venire facias being awarded before it ought was to be accompted as if no Venire had been awarded and said it was like to a dedimus to take a fine before the writ of Covenant issued forth to levy the fine and so concluded that it was helped by the Statute of Jeofails But the Court took a difference ☞ where in truth there was no Venire facias at all and where there is an ill Venire facis as it is here for thought it be as bad as may be yet being it is a Venire facias it is not helped by the Statute of Ieofails Erâ—or Jâ—oâ— ils but if there had been none the Statute had made
find it if they see cause to the contrary and that in the case at the barr the Action might be as well grounded upon the scandal which grew to the party who was Endicted as upon the trouble which might have befallen him by reason of the preferring the bill against him Hellena Pasc 23 Car. B. r. AN Action upon the Case was brought for these words Arrest of Iudgement in an Action upon the Case Hellena is a great Witch and a Verdict found for the Plaintiff It was moved to stay Iudgement because the words were not Actionable for they did not shew that the Plaintiff had bewitched any thing or done any thing that brought her within the compass of the Statute 1. Jac. against Witch-Craft Iudgement was hereupon stayed VVilliamson against Henley Pasc 23 Car. Banc. Reg. Trin. 21 Car. rot 362. AN Action of Debt was brought upon an obligation Arrest of Iudgement in Debt upon an obligation the condition was that if the Defendant did sell the tithes in Ransom more that he should pay the Plaintiff such a sum of money but if he sold them not that then he should deliver an obligation to the Plaintiff for the payment of a certain sum of money therein expressed at a certain day therein limited and for non performance of the condition is the Acion brought The Plaintiff obtains a Verdict the Defendant moves in Arrest of Iudgement Time that he ought to have convenient time for doing of the things expressed in the condition and that it appears not by the Record that he had convenient time and so there is no breach of the condition But the Court held that the time between the date of the obligation and the bringing of the Action was a conveninent time and that there being a second thing to be performed in case the former were not done that therefore that former thing ought to be done in some reasonable time elce the party would be too much prejudiced by staying to have the second thing performed and therefore ruled that Iudgement should be entred without better matter should be shewed Savages Case Pasc 23 Car. B. R. SAvage was Endicted for forging and publishing of Letters of credence to gather money Error upon a Judgement upon an Endictment and was convicted and Iudgement given against him upon his own confession and 100 l. fine set upon him et quod capiatur Exceptions were taken to this Iudgement 1. That it did not appear wher he received any money by virtue of these counterfeit Letters nor at what time But the Court answered that the substance of the offence for which he was Endicted was Endictment the forging and publishing of the Letters and not the collecting of the money for though he had not collected a penny yet the Endictment was good A second exception was that the Endictment did not say quod Counterfecit falso But the Court held that the word Counterfecit necessarily implyed in it the word falso and so not material whether falso were expressed or omitted 3ly It was objected that the party was committed before he was convicted But to this the Court answered Conviction that he was committed upon his own confession which is a conviction in Law and the Iudgement held good and affirmed Needler and Guest Pasc 23 Car. Banc. Reg. Entred Trin 1649. rot NEedler brings an Action of Covenant against Guest Artest of Iudgement in a breach of Covenant upon Articles amongst which one was to allow such a sum of money to an under Clerk in the six Clerks Office by the sheet for every quire of paper he should writein copying and engrossing of bills answers c. as was expressed in the said Articles and upon this Needler obtains a verdict against Guest In Arrest of Iudgement divers exceptions were taken and over-ruled but one was insisted upon which was this that there was more found in the breach of the Covenant assigned then was contained in the Covenant it self for it was found that he had not payed for 72 sheets which was 5 quire and a half and so damages were given for more than ought to be Breach for the Covenant was to pay so much the quire and mentions not any half Damages and for this the Iudgement was stayed for the Court said that the Law would not supply a casus omissus to bring it within the Covenant to ground a breach thereupon Supply what ever the intent of the partyes was that were parties to the Articles VVhitley and Fawsett Pasc 23 Car. Banc. reg VVHitley brings an Action of Trover Action of Proven for distraining selling his Cattel and Conversion against Fawsett for taking his Cattel by way of distress and selling them by virtue of a warrant of Commissioners of Sewers for not paying of a tax set by them towards the reparation of Sea walls the Defendant pleads all the speciall matter by way of justification the Plaintiff demurrs to this Plea and upon the demurrer takes these exceptions to it 1. To the setting forth of the Commission in that he shews not that three of the Commissioners were of the quorum The 2d exception was that in his Plea he had not sâ—t forth the Authority of the Commissioners To that the Court answered it was not necessary 3ly That the Plea was but argumentative which makes it naught 4ly It appears that there are 800. Acres of Land which are in the hands of the King Tax which are not taxed as by law they ought and so the tax is unjust because by the not taxing of them a greater burden was laid upon the rest of the Land than of right ought to be and this the Court held a good exception and said that the Kings Lands are taxable by the Statute 5ly The Statute is not pleaded as it ought to be 6ly It doth not expresse that Whitley in whose occupation the Lands are that are taxed is the Assignee to Lynsee the owner of the Lands but he may be a meer stranger and so not taxable nor his beasts to be sold 7ly It is not set forth that he shewed his warrant before he distrained as he ought to do Distresse In this case the Court first said that one may distrain and sell the Cattel of the owner of the Land taxed or his Assignee for non payment thereof Sale but doubted whether a strangers Cattel might be distrained and sold Roll Iustice took these Exceptions to the Plea 1. Plea That the Plea did not set forth the limits of the Commission as it ought to do and was therefore ill 2ly He said the Plea ought to have shewed that three of the Commissioners were of the quorum 3ly That it did not appear by the Plea that the Lands taxed where the distresse was made are within the Level to be taxed by the Commissioners 4ly The Tax is of the Land of such an one and his Assignes and this is
ought not to be restored which in brief was for carrying himself in a tumultuous way at an election of Common-Councell-men and disturbing the election this Retorn was read and filed and the Councel thereupon prayed he might be restored because there was not sufficient matter shewed in the Retorn why he should not be restored and these exceptions were taken to the Retorn 1. That it was too general and shews not what manner of disturbance Estwick made at the Court where the election was 2ly Part of his misdemenour is set forth to be clamando veciferando which are words very uncertain and not proper to set forth a disturbance 3ly It was said he was bidden to withdraw and refused and it is not shewn why he should withdraw 4ly The custom set forth for the Lord Maior and Court of Aldermen to imprison ad placitum is not good but they should have shewn that such imprisonment belonged to them per consuetudinem or by the common-Common-law 5ly They say that they had used to imprison for such causes and do not shew where the custom is used 6ly They say quaedam quaestio orta est touching the election of one to be a Common-Councel-man and shew not his ability for the place 7ly By the incertainty of the Retorn the Plaintiff cannot plead to it 8ly It is said that when he was commanded to go forth he said he would not but it is not said that he did not go forth 9ly It is said that the Court of Common-Councel tendred the Covenant whereas they have no power by Ordinance of Parliament to do it The Recorder of Councell with the City desired time to amend the Retorn in matter of form only And said that the Plaintiff was removed from his place by a Court of Record and therefore hoped he should not be this way restored and that he had no loss by being removed and therefore the Case was the less considerable and whereas it was objected against his amending of the Reton that it was filed so too late to move for it He said that it was not filed by order of Court but only ordered that Copies might be taken of it for Council to peruse and if so then it is not too late to pray it may be amended but though it were filed he conceived that in a case of this importance it might be amended in matter of form as some Reforms had been formerly in this Court Roll Iustice answered the Recorder to this effect You ought to shew some cause upon which the party may have remedy by a Writ of Error or otherwise Return if Iudgement be wrongfully given against him which you have not done and as to the filing of the Retorn Filing a Retorn may be filed either upon motion of the party or by the rules of the Court and it were good you consider how this was filed and as touching the suspension of the party from his place Suspension it ought not to be perpetual but for a time only and said that after filing of a Retorn be it upon motion or by the rules of the Court it cannot be amended Tuesday next following was given by the Court to hear Councel on both parts Amendment Chadly and Stinch Trin. 23 Car. Banc. Reg. Mich. 22 Car. rot 556. STinch brought an Action upon the Case upon an Assumpsit in the Common Pleas against Chadly and hath a Verdict and a Iudgement Error to reverse a Iudgment in an Action upon an Assumpsit Stinch brings a Writ of Error here to reverse this Iudgement and assigns for Error 1. That there were 18 returned upon the Iury and but two of them tryed the issue 2ly Part of Declaration to ground the Assumpsit was in another County and not within the Iurisdiction of the Court where the issue was tryed and for these Errors the Iudgement was reversed except cause should be shewn to the contrary Thursday next Trin. 23 Car. Banc. Reg. IT was moved to quash an Endictment for erecting of a Cottage contrary to the Statute To quash an Endictment for erecting a Cottage the exception taken to it was that he erected a Cottage for habitation but did not say it was used or inhabited as a Cottage But Bacon Justice answered that the very erection of it is an offence against the Statute and therefore the Endictment did very well pursue the words of the Statute and therefore would not quash it VVright and Pynder Trin. 23 Car. Banc. Reg. Mich. 22 Car. rot 440 antea 22 THe Case of Wright and Pynder was moved again to have the Iudgement of the Court. Opinion of the Court on a Demurrer upon an evidence Roll Iustice said that matter of fact ought to be agreed in a Demurrer to an Evidence otherwise the Court cannot proceed upon the Demurrer for the Iudges cannot try the matter in fact for that were for the Iudges to give the verdict which belongs to the Iury to do and to waive the matter in Law Pleading which they should determine and he said that if a Deed be pleaded the party must shew it in Court but if it be given in evidence it is not necessary to shew it if it can otherwaies be proved to the Iury Evidence and so is it of a Record given in evidence and cited one Worsseys Case 17 Iac. Rolls Iustice took also two other Exceptions to the pleading 1. That the Goods mentioned in the Schedule appear not to be the same contained in the Declaration 2ly No Title is made to the Indenture by him who brings the Action and concluded upon the whole matter that the Demurrer was not good and that there ought to be a Venire facias de novo to try the matter again Venire de novo Iudgement Bacon Iustice much to the same effect but differ'd in this that there ought not to be a Venire facias de novo but said that Iudgement ought to be given against one party to wit the Defendant for ill joyning in Demurrer to the intent the party that is not in fault may be dismissed and the parties here have waived the Tryal per pays by joyning in Demurrer But Roll answered that no Iudgement at all could be given for both parties be in fault one by tendring the Demurrer the other by joyning in it and the Defendant might have chosen whether he would have joyned or no but might have prayed the Iudgement of the Court whether he ought to joyn The Court advised to search presidents for a Venire facias de novo after a Demurrer upon an evidence and if there be any they held that the same Iury ought to come again and not another Roll said Iury. if a special verdict be found insufficient a new Venire facias ought to issue and he saw no difference between that and this Case King and Summerland Trin. 23 Car. Banc. Reg. IN the Case of King and Summerland again moved the
the land and the King shall have it And to that which is said that the King cannot be a Copyholder it is not so clear for I conceive the contrary for a surrender of a Copyhold to him is good and of a use too and he cited these books 9 H 6. fol. 25.20 B. 3. f. 3.11 rep 91. Rolle Iustice said that a Trustee or cestuy que trust cannot take the profits of the land Cestuy que trust Equity Outlawry Law Equity but hath only his remedy in equity for the Estate in the land is only in the party trusted and the King shall not have the profits of the land upon an Out-lawry against the cestuy que use or cestuy que trust And Law and Equity ought not to be confounded therefore if the King hath equity for a thing he ought not to sue for it at the Common law so is it in this case at the bar Adjourned Chapel and Drew 23 Car. Banc. Reg. Hill 11 Car. rot 921. IN this case the party being attainted of felony Exception to a pardon for Felony Pardon pleaded his Charter of Pardon and Claims thereby to be restored to his Goods and Chattels forfeited to the King by the felony and the Question was whether as the Pardon was penned he should be restored or no the words of the Pardon upon which the Question grew were these pardonavit remisit relaxavit and it was held that he was not by these words to be restored to his Goods and Chattels for the words do not amount to a Surrender in case of a ommon person much less in case of the King and there ought to have been the word restituit Roll Iustice said this Pardon was drawn by Noy Attorny General and was too short Felony Tryal and it was said by him that if one be committed to the Gaol for one felony the Iustices may enquire and try the party for another felony for which he was not committed Tylers Case Trin. 23 Car. Banc. Reg. AN action of Debt was brought against Tyler upon an Obligation to stand to an Award Demurrer to a Replication and the Plaintiff declares of an Arbitrement made the 28th day of May in such a year ready to be delivered up the nine and twentyeth day of May in the same year The Defendant pleads nullum Arbitrium The Plaintiff replies that the Award was made by the Vmpire the 28th of May ready to be delivered up upon the same 28th day of May and to this replication the Defendant demurs and shews for cause that the Plaintiff had set forth double matter one in his Declaration and the other in his Replication for the Award set forth in the Declaration and that set forth in the Replication cannot be intended to be one and the same But Roll Iustice answered that the Issue to be tryed is not to be taken upon the day of the Award made and therefore it requires no answer Demmurres and so cannot be double and one ought not to demur for the doubleness of the matter upon a thing upon which no Issue can be taken and â—â—led better matter should be shewn or else Iudgement should be given for the Plaintiff Estwick and the City of London Trin. 23 Car. Banc. Reg. THe Case of Estwick and the City of London was again argued by Serjeant Glynn for the City Argument in the Case of the VVrit of Restitution to a Common-Councel-mans place Restitution Custome in his Argument he insisted upon three particulars why Estwick could not be restored to his place of a common-Councel-man 1. That a common-Councel-man may be removed or suspended from his place at pleasure by the custome of the City 2ly That he cannot be restored by Law 3ly No restitution can be in this case as it now stands First the custom to remove a common-Councel-man is good for it first began by agreement and such a custome is good at the common law much more here and it is not an unreasonable custome although it may seem so prima facie like as it is in the case of a Lord that feiseth the Lands of his Villein and in the case of a Copyholder that for feiteth his Estate by the felling of Timber A second reason is it agrees well with the nature and condition of the office of a common-Councel-man to be subject to this Custome Tryal and we know that many things shall be tryed by Custome contrary to the course of the common law 3ly We see that the order of the Parliament is a rule to try matters concerning their Members and so it is here in the Citie to try their Members 4ly If it should not be so it would prove destructive to the City by waiting till such an offender might be removed by a course in Law which is far more tedious than this customary way To the second point he said that by Law there can be no restitution to this office and this is proved by the very nature of the Writ of Restitution which is to restore the party to a freehold or some other matter of profit neither of which can be in our case and a writ of Restitution is to restore one to a possession where one may not be restored by an ordinary way neither doth the Statute of Magna charta extend to our case for a common-Councel-mans place is merely grounded upon the custome of the City and not upon the Common law and he said there are three grounds for a Writ of Restitution 1. A contempt to the King 2ly A hurt to the Common-wealth 3ly Particular dammage to the party but none of these is in our cause and therefore there is no cause for a Writ of Restitution The case of Sir Iames Baggs having a Writ of Restitution was because he was deprived of his Trade and Freedom Constable Church warwarden free-hold and our case differs from the case of a Constable or a Church warden or any case that can be cited for a Church warden is an officer in relation to the Common wealth for the execution of Iustice wherof the Common law takes notice and likewise a Constable is a known Officer to minister Iustice in relation to the publique Recorder so is it of a Recorder of a Corporation and so they all differ from our case For authority to this point in 17. Iac. but moved first 16 Iac. Warren a common-Councel-man of Coventry was denyed upon the retorn of his Writ to be restored and our case and retorn is more strong against the Plaintiff and Burman a Gentleman of one of the Inne of Court being expelled could not be restored by a Writ of Restitution and lately a common-Councel-man was removed for not taking the Protestation For the third point whether upon the Writ it self as this case is there can be any restitution made I conceive not because it is directed to the Maior and Commonalty and Citizens of the City of London and so
not say the Commission of Sewers was under the Great Seal as it ought to express 7 Car. Allen and Carter 5 Car. Rayl and Mannings Case and Pasc 14 Car. Hungates Case and because it is not so set forth there can no Issue be taken whether they be Commissioners or not 2ly The Commission is not well pleaded for it appears not that thrée of them were of the quorum as the Statute appoints there should be 3ly The Retorn is in English and it ought to be in Latin But to this Roll Iustice answered Retorn That the Retorn is good notwithstanding for the Commission is in English 4ly It doth not appear that Harts-horn lane touching which their orders were made is within VVestminster and so it cannot be well-known whether it was within their power by vertue of their Commission to make any orders touching that place Hales of Councel for the Commissioners moved the Retorn might be amended But the Court answered It could not be Amendment because the Retorn was made the Term before And it was ordered that cause should be shewn Tuesday following why the Retorn and Proceedings should not be quashed The King against Page and Harwood Hill 23 Car Banc. Reg. THree men were endicted at an Assises in the Country for Felony Qustion upon the Statute of Stabbing whether Principle or Accessory Principle Accessory for killing of a man the Endictment was framed upon the Statute of 1 Iac. made against Stabbing They were all found guilty He that did the fact was condemned and executed but because the Iustice of Assise doubted whether the other two wers Principles within that Statute or but Accessories they would not proceed to Iudgement against them Whereupon they were brought to this Bar to be proceeded against for the Felony and the doubt was in regard they were only present and abetting the person that did the fact and used no Action towards the death of the party whether they were Principles within the Statute or but Accessories Roll Iustice said They are not Principles Clergy but Accessories and ought to have their Clergy for the Statute of Stabbing being a penal Law it shall be taken strictly and not extended to equity and in Swinertons case Bramston Barkley and Iones thrée of the Iudges of this Court directed the Iury the Case being of the same nature with this to find the parties only accessory But the Iury in our Case have found them guilty as Principles and I doubt upon that whether the Tryal be good or no. Tryal Walker of Councel against the Prisoners said the Statute of Stabbing makes no new offence and therefore it is doubtfull End ctment wheher it be necessary for the Endictment to conclude contra formam Statuti Roll Iustice said it ought to be so But Bacon Iustice doubted The Court admitted the Prisoners to their Clergy and they were burnt in the hand in view of the Court by the Hangman of London and the Prisoners bound each for the other to their good behaviours and to appear in Court the next Term. Hales against More Hill 23 Car. Banc. Reg. Mich. 23 Car. rot 382. A Iudgement was given in an inferiour Court in an Action of Debt Error upon a Iudgement in Debt Demand Venire and a Writ of Error brought in this Court to reverse it The Errors assigned were 1. The plaint is entred generally de placito debiti which is uncertain so that the Defendant cannot know what is demanded 2ly In the awarding of the Venire it is duodecim c. and doth not say probos legales homines Bacon Iustice Duodecim in the Venire with an c. is not good in an Inferiour Court but this is in the awarding of the Venire and therefore well enough but the first is a good Exception in my Iudgement Therefore let the judgement be reversed except cause shewn to the contrary The King and Corye A Writ of Restitution issued out of this Court for one Corye to be restored to the Recorders place of the City of Norwitch To be restored to a Recorders place which was returned and filed Hales of his Councel opened the Retorn and cited Stroods Case that one ought not to be removed from any office without shewing good cause why he is removed which is not here done but only a Custom set forth whereby they shew they had authority to elect a Recorder for a year only and at the end of the year to elect another and that by vertue of this Custom Custome they had chosen another Recorder in the parties place he having béen in a whole year which he conceived to be an ill Custom Roll Iustice said If this be a void Custom none of the two Recorders were well elected and so Cory cannot be restored And Bacon Iustice did also doubt whether any of them were well chosen It was said that the Retorn is not traversable but shall be taken to be true Bacon Iustice held Traverse Retorn That the Retorn was not good and you must have an Alias that we may have a better Answer before us for nothing can be done upon this But the Court enclined that a Recorder may be elected for one year It was said If a Custom be entire you cannot make one part of it good and another part of it ill The rule was for the party to take an Alias because this Retorn is not good and it is too late to amend it because it is filed Amendment The King and Symmons IN an Endictment of forcible Entry upon the Statute of 8 H. 6. divers Exceptions were formerly taken To quash an Endictment uâ—on the Statuâ—e of 8 H. 6. Roll Iustice answered to that that the Endictment did not say contra Coronam dignitatem it was well enough without those words Another exception was now taken that the Endictment is ad tunc ibidem which is repugnant This Roll Iustice over-ruled but he doubted whether the Endictment ought to be contra formam Satutorum or contra formam Statuti as it is because this Endictment is framed upon divers Statutes Bacon Iustice cited the 4th Rep. the Case of Appeals and said it is good as it is contra formam Statuti and said that a forcible Entry and Deteyner is punishable at the common-Common-law Common law The Court desired to see Presidents Antea Hill 23 Car. Banc. Reg. MAynard shews for cause why a Prohibition should not be granted to the Admiralty For a Prohibition notwithstanding a Consultation granted That the parties have moved this matter in the Common-pleas and did there joyn issue upon the same and a verdict passed against the Prohibition and a consultation was thereupon granted The Councel on the other side makes another suggestion viz. that the sentence in the Court of Admiralty was against a person that was dead and that one of the parties who had the sentence had released To this the Court said you
notice of the Almanack and the feast dayes there set down or no. It was adjourned to be argued again the next Term. Thynn against Thynn Pasc 24 Car. Banc. Reg. IN this Case wherein exceptions were formerly taken to the Writ of Error Opinion of the Court concerning a retorn and argued Bacon Iustice said he had read over the book and doubted whether many of the Errors formerly assigned are not out of doreâ— because the certiorari is not well retorned before us for the certiorari is directed to the Recorder and it is retorned by the Deputy Recorder in his own name Retorn Roll Iustice doubted also for he said all the old presidents were against this retorn But if the Writ be directed to a Recorder who is custosbrevium or to a Recorder and his Deputy then the retorn as it is will be good TWisden of Councel with the Plaintiff in the Writ of Error in the Wiltshire cause took these exceptions The first exception take was Error and exceptions offered to a Iudgement in Dowr that he demand of Dowr is larger than the originall Writ for that the demand is of the Parish of Timesbury and the Writ is of the Vill of Timesbury which is not so large by intendment as a parish because there may be divers Vills in one parish and he said that in some case a Writ shall restrain a demand in other cases it shall not namely where they cannot stand together and so is it here 21 E. 4. f. 24. 3 E. 3. f. 56. Demand A second exception was that the nature of the tithes demanded are not set forth although they be not in gross but appendant as they ought to be Dowr and a feme was not dowable at all of tithes before the Statute of 32 H. 8. and a feme is dowable of Common appendant but not of Common in gross A third exception was that Dowr is recovered of a thing not dowable viz. of a quarry of stones for if she should be dowable of a quarry of stones this would be to the destruction of the inheritance and indeed it is impossible for a quarry of stones cannot be divided by metes and bounds which must be if she should be endowed of it And also if the mine and quarry should be divided the Tenant of the Land would be prejudiced and that a quarry cannot be divided see Cooks Lit. 164. and so was it adjudged 2 Iac. upon a reference to the Iudges Next there is also Error in fact for the Hundred of Warminster extends into the Hundred of Sutton parva Error in fact and so if she be endowed of the Hundred of Warminster she will be endowed of the third part of two Hundreds which is more than she demands by her Writ of Dowr Maynard of Councell with the Defendant in the Writ of Error said as to the summons he held there is a good summons and cited Hob. 137 Dalt f. 86. And there may be divers parishes in one Vill as well as divers Vills in one parish And to the exception that the demand of the Dowr in the Writ is generall whereas it ought to be a special demand he answered the demand in Dowr differs from other demands and is more favoured in Law for as Dowr it self is favoured in Law so are the proceedings in Law to recover it 6 E. 3. 45. 16. E. 2. 7. 8 H. 3. 11 Ed. 3. 85. 25 E. 3. breâ— 412. Fitz. Dowr 8 E. 3. Sect. 434. Reg. 39. And as to the surplusage in the demand this shall not abate the Writ 4 E. 3. 52. Fitz. brei 14. Abatement And that the parish should extend out of the Vill is a forein intendment and shall not be so taken against an Averment and when a Vill and a parish are named by one name one of them shall not be intended larger than the other if the contrary be not shewn Long quint. Ed. 4. f. 20. And he argued that a feme is dowable of a quarry and that it may be divided by metes and bounds for it may be divided by the profits although it cannot be divided by the quantity of the thing Roll Iustice said By no manner of pleading can one abate a Writ after Iudgement and how should it be so here And 2 Cases were cited by the Councell that bis petita shall not abate a Writ Mich. 9. Iac. Bolstrod and Brooks case and Easton and Styles case in a Writ of Dowr Pasc 24 Car. Banc. Reg. THe Plaintiff brought an Action of Trespasse quare vi et armis for rescuing of a Prisoner out of his possession Arrest of Iudgement in an action of Trespass vi et armis for rescous and hath a verdict against the Defendant The Defendant moves in arrest of Iudgement for that the Plaintiff ought to have brought his Action of Trespass upon the Case and not an Action of Trespass quare vi armis But Roll Iustice answered that he might have an Action upon the Case or a Trespass vi armis at his election Election of Action and therefore the exception is null Another exception was taken that there was 4 years between the time of the Trespass done and the time of bringing the Action Roll Iustice answered you should have pleaded this matter if you would have had advantage by it but it is to no purpose to urge it Another exception was taken that the Declaration says that he took him in his possession out of his possession But the Court over-ruled this also and ordered the Defendant to shew better matter why Iudgement should not be given against him King against Pasc 24 Car. Banc. Reg. KIng brought an Action of the Case in London against the Defendant For a Procedendo in an action upon the Case removed our of London Custome for speaking these words of her Thou art a Whore and Cantrels Whore and hast been so this forty years The Defendant removed the Cause into this Court by a Certiorari the Plaintiff moved for a Procedendo But nothing was done in it for the Court was divided for Bacon Iustice held the words not actionable But Roll Iustice held that by the Custome of London they were though not at the common-Common-law Aylett against Stellam Pasc 24 Car. Banc. Reg. TWisden upon a rule of Court to shew cause why there should not be a new Tryal Cause why no new Tryal said that two things were alleged on the other side that there ought to be a new Tryal 1. That two of the Iurors were of kin to the Plaintiff And 2ly That there was notice given to the Defendant of a second Venire facias To the first of which he answered that the Iurors were not of kin and produced an Affidavit for proof Roll Iustice interrupted him and said it is not now material whether they be of kin or no for the Defendant should have taken advantage of that upon his challenge at the Tryal
deliver certain commodities ad ratum instead of secundum ratum But to this Roll Iustice said that ad ratum secundum ratum are all one in signification 2ly There is no time set forth when the promise was made for it is set down in figures which is all one as if it were not set down at all Roll Iustice The Record is not so though the transcript be Amendment therefore that may be amended 3ly There are two several promises and they are both alleged Roll Iustice It s well enough 4ly The Venire is not retorned for it is not retorned to be in omnibus servitum executum Retorn To this the Councel on the other side answered it appears that there is a panell retorned and therefore it is well enough though those words be omitted Roll Iustice The panel is not retorned nor annexed according the Statute and therefore it is no return in Law Therefore let the Iudgement be reversed for this cause except cause shewed to the contrary VVatson against Scotson Trin. 24 Car. Banc. Reg. VPon a sute between Scotson and Watson in the Court of Admiralty To discontinue an action and to discharge the Bayl. Discharge Scotson entred into an Obligation to Watson Watson brings an Action of Debt upon this Obligation in this Court against Scotson Scotson appears and puts in bayl to the Action and after moves the Court that Watson may be ordered to procéed in the Admiralty upon this Obligation in regard the Bond was given there and that the bayl here may be discharged Roll Iustice I will not release the bayl for it is filed and it is a Record here Bayl. and it is not unduly done Aylet against Oates Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 397. A Iudgement was given in the Common-pleas in an Action of Assault and Battery against three Error to reverse a judgment in Assault and Battery The Defendants brings a Writ of Error to reverse this Iudgement and assigned for Error that the Action was brought against three and that they all appeared by Attorny and pleaded whereas one of them was an Infant within age and ought to have pleaded by his Guardian and that Iudgement was entirely given against them all which must be void against the Infant and so it being intire is void also to the two other Defendants Wild of Councel with the Defendant in the Writ of Error argued that the Iudgement may be reversed in part Iudgement viz as to the Infant and yet may stand good against the other Defendants for the Action might have béen brought against them severally as well as joyntly 35 H. 6. f. 21. 5 Ed. 4. f. 7. Roll Iustice said it is ruled contrary Where a Iudgment is reversed for an error in Law against some of the Defendants it is reversed against all of them but it seems to be otherwise where it is reversed for an Error in Fact 35 H. 6. 2. Hales on the other side moved to reverse the Iudgement wholly Discontinuance for it is an entire Iudgement and cannot be reversed in part only for all the Defendants are equally concerned in it and a discontinuance against one of them reverses the Iudgement against all of them and he denyed the Book of 5 Ed. 4. Error and cited 29 Ed. 3. f. 39. Roll Iustice said if it be a Iudgement at the Common-law or a Iudgement where costs are given by the Statute if it be reversed as to one it is reversed to all And here is an entire judgement given by the Common-law and it cannot be helped But bring me the Book Postea Crook against Samm Trin. 24 Car. Banc. Reg. Mich. 23 car rot 311. SAmm had a Iudgement in the Common-pleas upon a Nihil dicit in an Ejectione firmae Error to reverse a Iudgment in an Eject firmae The Defendant brought a Writ of Error to reverse the Iudgement and assigned the general Error The Plaintiff in the Iudgement prayed it might be affirmed Roll Justice demanded of him if it be a Iudgement upon a Nihil dicit how can it be of this Term Therefore give notice and move again Iudgement But the Iudgement is ideo consideratum est quod recuperet and there wants defendens capiatur and therefore the Iudgement is erroneous and how can it then be affirmed 3 Car. in the Exchequer Mich. 5 Iac. rot 269. Allens Case 17 Car. Stewart and Stewart in the C. B. Error and though it be a Iudgement by default yet it is a Iudgement but being erroneous it cannot be affirmed Therefore advise what you will do Hobart against Boraston Trin. 24 Car. Banc. Reg. IN an Action of Debt brought upon the Statute of 2 Ed. 6. for not setting forth of Tithes Arrest of Iudgement in Debt upon the Stat. of 2 Ed. 6. for not setting forth of Tithes Copy after a verdict It was moved in arrest of Iudgement that the Statute was not well recited for the Parliament began in the first year of Ed. 6. and was prorogued and the Act was made the 26th of November and not the fourth as it is set forth to be For proof of this a Copy of the Parliament-roll and an Affidavit to prove the Copy to be true were read in the Court Hales of Councel on the other side said that the Copy was taken out of the Parliament-Iournal-book only and not out of the Writ for prorogation of the Parliament as it ought to be Roll Iustice said to the Councel on the other side Advise you how to answer this and let the Iudgement stay in the mean time antea Pimley against Robinson Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 476. RObinson brought an Action of Trespass against Pimpley Error to reverse a Iudgement in Trespass vi aâ—mis in York for entring into his Close and taking away a Mare and a Bridle in the County of York and had a verdict and a Iudgement against the Defendant The Defendant brings a Writ of Error to reverse this Iudgement and assigns for Error that the Court was said to be held on Saturday the ninth of November whereas the Saturday on which the Court was held was not the 9th day of November Error but the 7th and so there is no Court alleged to be held for on the 9th day there was none held 1 H. 7. 11 E. 4. 10. Roll Iustice It should seem they did not look well into the Almanack if they had this mistake had not been Let the Iudgement be reversed except cause be shewn Monday next Mogg against Shute Trin. 24 Car. Banc. Reg. Trin. 23 Car. rot 2097 IVdgement was given in an Action of Trespass Error to reverse a judgement in Trespass and a Writ of Error thereupon brought to reverse this Iudgement and the Error assigned was that the Venire was returned by one that was not Sheriff at the time of the return To this it was
because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
there is no use here to result but the party is in by the Common Law To the 3 point if the use doth result yet the estate of Hamond hinders the bargain and sale for he is a wrong doer because that the fee being determined by his holding over he is a wrong doer but if not yet his Estate is paramount For the 4th he held that the bargain and sale is not good upon the consideration expressed because it is not made for monies paid nor secured to be paid 37 Eâ—z VVard and Lamberts case C. B. For the 5th point he held that it doth not enure as a Covenant to stand seized because here are no words of Coveliant Boyntons case Plow Coment 301. 2ly There are plain words to shew the intent of the party to be against it and also actions following thereupon Foxes Case â— Rep. 15 Car. Pitfield and Pierce Banc. reg 17 Eliz. Gallards case And whether the use ariseth or not it matters not if the use ariseth Lease Watson hath title if not Cumberland hath the estate and so it is an ill feofment and prays judgement for the Defendant Roll chief Iustice said there is a variance Variance and it cannot be the same lease yet it is a good lease to raise a use because the feoffor joyns in it Ierman Iustice to the same effect and he held that the words at and from are all one Nicholas Iustice doubted Use Roll chief Iustice said that it is a distinct lease but the party hath made such a lease and more and a feofment made habendum a die datus if the seisin be not made at the last instant of the day it is not good Feofment The Court ordered it should be argued again Tuesday sevennight following Postea Hill 1649. Banc. super VPon an Endictment preferred 22 Car. at the Assizes in Kent against one for engrossing Apples Arrest â—f Iudgement in an Action upon the Stat. against engâ—â—ssing Victual Pears and Cherries framed upon the Statute made against engrossers of Victuals the Defendant pleaded and was found guilty formerly judgement was arrested and the Councel heard Edward Iohnson of the Inner Temple prayed for Iudgement for the Keepers of the liberty notwithstanding what had been objected formerly and that upon these reasons 1. Because that Apples Pears and Cherries are Victuals within the Statute and that because the Statute is not to be abridged And the Statute of 2 Ed. 6. made concerning fruiterers expounds this Statute that Apples and Pears are Victuals for the Fruiterers are called sellers of Victuals and for Bois his case that is objected that Apples are not Victual it is not to be meant of all sorts of victual in a general acception and without doubt engrossing of them is engrossing at the Common Law 26 Eliz. Salt is no Victual per se nor is used as Victual in any Country yet it is there said to be Victual But Apples are Victual per se and Costermongers are called Victuallers by their Charters Roll chief Iustice said That 4 Iac. Apples were adjudged no Victuals and after upon a writ of Error this Iudgement was affirmed in the Exchequer Chamber and therefore that judgement is not to be lightly passed over and if they should be adjudged Victuals the trade of the Costerwongers would be destroyed and for Salt it is no Victual but a preservative of Victual and Hops was adjudged to be no Victual 20 Iac. upon a reference made to the Iudges Neither are Apples to be accompted Victual within the Statute Ierman Iustice differed and Nicholas Iustice held that Apples are Victual within the Statute because they are better than Fish Ask Iustice held that Apples are Victual but not within the Statute for a Statute cannot alter by reason of time but the Common Law may It was adjourned Barnwell against Graunt Hill 1649. Banc. sup Entred Trin. 1649. rot 791. THe Court was moved for their opinion in this cause whether the writ of Error did lie or not Error to reverse a judgement where some are found guilty and others acquirred Abatement Error It was said that a writ of Error is not like another writ for another writ may be abated for one person and stand good to another but if the writ of Error will not lie it is abated in all Hacker and Wotton Pasch 24 Car. rot 342. And Roll chief Iustice asked the Counsel what he could say to the Books of 2 Ed. 3. and 3 Ed. 3. Privies in Record may joyn in a writ of Error so is it here and an inconvenience may come to all the parties by this judgement although but some of the parites against whom the action was commenced are found guilty and others are acquitted and therefore they may all well joyn in the writ And therefore let the Iudgement be reversed if cause be not shewn Wednesday next to the contrary Roberts against Tucker Hill 1649. Banc. sup Pasch 18 Car. rot 116. A Writ of Error was brought to reverse a Iudgement given in the Court at Bridgewater in an Action of the Case upon an Assumpsit to pay such a sum of money at the Defendants return out of Ireland Error to reverse a judgement given in an action upon an Assumpsit The Court held that Bridgewater hath no power to enquire of a thing done beyond their jurisdiction and Ireland is out of their jurisdiction whence the party upon the Assumpsit was to return Jurisdiction Latch of Councel with the Defendant in the writ of Error said that the writ of Error is returned by the Mayor and Deputy Recorder and their Letters Patents give not power to have a Deputy Recorder Return and the writ of Error is directed Maiori Aldermannis et Recordatori quashed The Court ordered cause to be shewn why the Writ of Error should not be quashed Postea Poynes and Francis Hill 1649. Banc. sup Mich. 24 Car. rot 222. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas in an Action of Trespass Error to reverse a Iudgement in Trespass and the Error assigned was that in the postea there is no association to the Iustice of Assize expressed as ought to be Roll Chief Iustice answered this is the fault of the Clark of the Assize Therefore let him attend and shew cause why the Postea shall not be amended Amendment Hill 1649. Banc. sup THe Court was moved to quash an Endictment for a riotous entring into certain land and carrying away 4 loads of Hay To quash an Endictment for a riot The exception taken was that the Endictment saith asportavit duo Carâ—cat sceni instead of duo Charectat soeni Roll chief Iustice answered If the party be culpable for the entry into the land although he carried away no Hay yet the Endictment is good therefore plead non cul to all the Endictment and it may be if it prove not good in all
the bringing of the writ of Error is delay enough and therefore if you have not assigned the Errors according the rules of the Court they shall not be now accepted Dewick against Bamber Hill 1649. Banc. sup THe Court was moved upon an Affidavit that the Defendant might plead and goe to tryal That an Attorney might be forced to plead Plea Appearance because his Attorney hath appeared and now he saith he is not an Attorney of this Court and doth refuse to plead Roll chief Iustice answered If he hath appeared and yet will not plead enter your judgement against this Clyent and though he have not appeared if he did promise to appear we will force him to doe it VVhitchurch against Pagot Hill 1649. Banc. sup THe Court was moved in the behalf of Whitchurch a Clerk of this Court To be restored to a Clerks place in the Castes Brevium Office that he might be restored to his Office in the Office of the Custos brevium according to an Order of this Court otherwise that he may have liberty to bring his Action against the Custos brevium The Court answered that the Master of the Office is answerable for all his Clerks and hath power over them and they are not Officers but méer Servants and therefore there is no remedy to be had in Law against him Restitution but in Conscience he ought to restore him Therefore let him shew cause next Term why he should not be restored In Michaelmas Term 1654. After divers motions and hearing what was objected on both sides upon his submission in Court to Mr. Paget the Master of the Office he promised to restore him Mich 1649. Banc. sup THe Court was moved in Arrest of Iudgement that the Plaintif was 19 years old Arrest of Iudgement for pleading per Guardianum and sued per guardianum which ought not to be for after he is 17 years years old he ought to sue per Attornatum suum The Court answered this is no good exception for if he be within the age of 21 years he may sue per guardianum and he is admitted by the Court to doe so And therefore let the Plaintif take his Iudgement Bigford against Topsam Pasc 16â—â— Banc. sup Mich. 1649 rot 85. A Writ of Error was brought to reverse a Iudgement given in an Action of Debt upon an obligation with the condition for the payment of a certain sum of money after the return of the Ship Error to reverse a judgment in debt to the Port of Plymouth The Defendant pleaded a special plea to which the Plaintiff demurred upon this demurrer the Iudgement was given for the Plaintiff upon which Iudgement the writ of Error was brought Wadhaâ—â— Windham assigned for error 1. That there issued a pone out of the Couâ—â— of Plymouth returnable the 1 of March and the Defendant did not appear till the 8 of March and so there is a discontinuance Hales of Councell on the other side answered that the Plaintiff had accepted of a Declaration Discontinuance and so that fault is helped The Court answered the acceptance of the Declaration doth not help it But the Record is not so therefore passes ouster A 2d Exception was that there is no bail taken Bail for it is erroneous bail and so shall be accompted no bail The Court answered this is not material here A 3d. Exception was that it is said that the plea was held before the then Maior and doth not shew that he was elected The Court answered it is well enough as it is though it might have been otherwise It was adjourned Custodes Libertat c. against Mountain and Lydal Pasc 1649. Banc. sup AN information was exhibited by the Attorney generall against the Defendants for engrossing divers Acres of Corn. Demurrer to a plea to an information for engrossing They pleaded that they had been heretofore prosecuted in the Court of the Exchequer and were acquitted thereof To this plea the Attorney general demurred and these reasons were shewed why the plea was not good 1. It is not pleaded that they were acquitted by judgement or upon a verdict or upon a former information exhibited against them 2ly It doth not appear that the Exchequer had jurisdiction of the cause 3ly There could be no information duly exhibited for it is said to be the 10. of September which is out of the Term and so the Court did not sit 2ly there is no issue joyned for the Plaintiff saith ponit se c whereas it being by way of recital ought to have been posuit se and the other saith petiit quod inquiratur per patriam 3ly There is no verdict in the Case for the issue is non culp contra Statutum and the verdict is non est culp juxta Statutum 4ly There is no judgment for it is eat ad praesens and it ought to be iret ad tunc 5ly There is no averment that the first information was for the same offence 6ly The information ought to be in the same County by the Statute of 21 Jac. and the Barons of the Exchequer are not Iudges by the Statute and so prayes Iudgement against the Defendant Hales of Councell with the Defendant answered to the third exception That in the Exchequer there is a Court the 10. of September to receive informations although it be out of the Term time And he said there is a good issue joyned and a good verdict for the words juxta et contra in this place have one and the same sence And the Iudgement is also good And the information was well brought in the Exchequer notwithstanding the Statute of 21 Jac. for the offence was in Midlesex where the Exchequer is Also if the Iudgement be not good by reason of Error yet it shall be accompted good till it be avoided by plea And although it be erroneous yet here is a discontinuance for Mich. 24 Car. St. Iohn was chief Iustice of the Commons Pleas and not solliciter as the plea supposeth The Court answered that they cannot take notice of that And here is no issue joyned nor any continuance to part of the plea pleaded by the Defendant and the demurrer goes not to the plea upon which the party puts himself upon the Country and there is no demurrer to that The demurrer is referred to the last plea and not to all and so there is a discontinuance to part and the first Iudgement is not void untill it be avoided by plea and here the fact was done in the County where the Exchequer is Void and â—oideable Discontinuance Câ—râ—â—orari and so the Barons are Iudges of it by the Statute and a fine that is voideable is not void untill it be made so by pleading And if you cannot answer the discontinuance all the rest is to no purpose therefore take time to answer that It was said also by the Court that the Defendant may remove an information exhibited against
not well pleaded for it is pleaded too generally and not in the several circumstances thereof as it ought to be The Court commanded the Record to be read and upon Dyer of it answered That 2 Churches united by the Statute are both of spiritual promotion And the Statute of 12 Eliz doth not repeal the Statute of 38 H. 8. But let the party shew cause why the Iudgement should not be reversed Repeal and let us see a book Burton against Low Pasc 1649. Banc. sup Mich. 1649. rot 27. AN Action of Debt was brought upon a Bond taken by a Sheriff Dâ—muâ—â—er to a plea in debt upon a Sheriffs Bond. for the Defendant to appear in Chancery upon an Attachment issued out thence against him The Defendant pleads the Statute of 23 H. 6. That the Sheriff ought not to take Bonds of any but in speciall cases and that this Bond is void because it is taken against the Statute To this plea the Plaintiff demurred The question was whether an Atatchment out of the Chancery be within the Statute of 23 H. 6. The Court ordered cause to be shewn why Iudgement should not be given for the Plaintif upon this Demurrer Postea Edwards against Fallowes Pasch 1649. Banc. sup EDwards brought an Action upon the Case against Fallowes for speaking of these words of him viz. Arrest of Iudgement in an Action for words Edwards hath stollen my Axe from my Wood Pen and for causing him to be bound over to the Quarter-Session It was moved in Arrest of Iudgement that the words were not Actionable But the Court held they were actionable and gave Iudgement for the Plaintif Nisi causa c. Viccarye against Barns Pasch 1649. Banc. sup rot 1724. VIccarye being a Mercer by his Trade Arrest of Iudgement for words brought an Action upon the Case against Barns for speaking these words of him viz. Thou art a Cuckold and a Cuckoldly Rascall and dost owe more than thou art worth and are not able to pay thy debts Vpon non culp pleaded and an issue joyned and a verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable for for the first part of the words they are clearly not actionable and for the latter words they do not imply any shifting fraud or falshood and so cannot imply him to be a Bankrupt for though he doe owe more than he is worth and is not able to pay his debts yet he may be an honest man and he may have credit and friends to support him in his trade Apes and More Pasch 15 Car. and Iones and Iacob â—4 Car. The Court answered here is no fraud or deceipt implyed which do make a Bankrupt within all the Statutes touching Bankrupts and if there be a special loss alleged the words will be actionable otherwise not Bankrupt But let Iudgement stay till the other side move and bring us a book for the words are worthy consideration Postea Barnestone against Gale Pasch 1649. Banc. sup AN Action of Trespass was brought for chasing of the Plaintifs Hogs Arrest of Iudgement in Trespass the Defendant by way of justification pleads a special plea viz. That he did hunt them with a Dog by the command of his Master because the Plaintif did put them into his Masters ground to eat the Acorns there The Plaintif replyed that he had Common there Vpon this an Issue was joyned and a Verdict found for the Plaintif Replication The Defendant moved in Arrest of Iudgement upon this exception that the Plaintif in his replication hath not answered the bar for he prescribes only for Common of Pasture and pannage is no pasture and so he hath no right to the Acorns But Roll chief Iustice said If they have cause to eat the Grass they may also eat the Acorns there for they may be on the grounds and therefore it is a good justification And therefore let the Plaintif have Iudgement except cause be shewn to the contrary Bolton against VVills Pasch 1649. Banc. sup AN Action upon the Case was brought upon an indebitatus Assumpsit for a hundred and ninety Weathers sold by the Plaintif unto the Defendant at 18 s. Arrest of Iudgement in an Action upon the Case upon an Assumpsit a shéep which in all amounts to 190 l. Vpon an Issue joyned and a Verdict for the Plaintif It was moved in Arrest of Iudgement that the Declaration is not good but mistakes the promise for the Weathers promised to be paid for do not amount to the sum for which the Declaration is laid And also the issue is taken upon the immaterial part of the plea and the matter well pleaded is waived The Court answered That mistaking of a Iudgement is a mistake of the Clark and is not material Amendment but here the Declaration it self is mistaken and that is material for the Action is grounded upon the promise in Law upon the sale of the Shéep Declaration and not upon any new Contract and by the sale there wants 2 s. in every Sheep to make up the sum demanded therefore the Declaration is repugnant Nil capiat per billam nisi c. More against the Earl Rivers Pasch 1649 Banc. sup Mich. 1649. rot 588. VVIlson of Councel with More the Plaintif argued against the Plea of Péerage pleaded by the Earl Rivers as it is pleaded and took these Exceptions Argument against the plea of Peerage 1. It appears not here by the Retorn by what Warrant the Earl was committed and brought hither and so he hath no day in Court and so the Plea is not good 2ly It is not shewed by virtue of what Warrant he was taken 3ly The Plea is 1. In abatement of the writ 2ly In avoidance of the Act of the Iudge and the latter ought not to be questioned by Plea 3ly There is no Plea but bare words for he pleads the Common Law 4ly He pleads his Patent as Earl only by way of Argument 5ly He ought to shew the writ under the Seal testifying the matter 8 H. 6. f. 9. 6ly The investiture of the Earldom is the livery and seisin of the Earldom and he hath omitted the pleading the Ceremonies of the investing and so he doth not shew that he is an Earl By the Statute Law Capias viz. of E. 3. a Capias was given in debt and before that a Summons was the process The Councel on the other side said they had demurred to the Plea Summons and shewed the cause of their Demurrer but the Court reproved them because they had ruled the matter in Law should be argued at the Bar to enform their own Iudgements Adjournatur Postea Syms against VVilson Pasch 1649. Banc. sup Pasch 23 Car. rot 120. SYms brought an action upon the Case upon the Statute of Monopolies against Wilson Demurrer to a Plea in Bar in an Action upon the case The Defendant pleaded
Crisp and Prats case doth somewhat resemble this Bankrupt The Law intends a Bankrupt which is so by fraud as well as a Bankrupt who becomes so by accident and for this cause is he called an Offender in the Statute and here the year of our Lord 1637 is the 13 year of the late King the recovery suffered by the Bankrupt was then and within half a year after the recovery he became a Bankrupt so that me thinks there plainly appears to be fraud in the Conveyance Fraud but the fraud is not expressed in the pleading as it might have been The Statute of 1 Iac. is somewhat doubtfull as I conceive and I do not sée any provision made in it against the wife if fraud do not appear for here is no valuable consideration mentioned Nicholas justice said it is doubtfull yet he conceived it within the Statute of 1 Iac. which ought to receive a large construction because it was made for the good of the Commonwealth Ierman and Ask agreed with Roll in omnibus Roll Here the matter in dispute is not in a special Verdict but comes in question upon point of pleading Pleading which shall be taken most strong against him that pleads it and he hath not expressed any valuable consideration as he might have done by saying in consideration of a portion or in recompence of mariage or in performance of Articles made upon mariage or that the wife had joyned in selling some part of the land The Court would advise but enclined judgement ought to be for the Avowant Afterwards judgement was given accordingly for the Court held the wife was within the Statute of 1 Iac. and the providing for wife and children to be providing for himself Chapman against Brook Trin. 1651. Banc. sup Trin. 1650. rot 200. IN an Action upon the Case the Plaintif declared upon a Custom of commoning in such a place The Defendant demurred to the Declaration Demurrer to a Declaration in an Action on the Case and for cause shews that the Custom was not well laid for the Plaintif declares of a Custom of commoning pro averiis viz. pro equis bobus equabus et pullis and the word pullis is of an uncertain signification for it may signifie a Calf a Lamb or any other young Beast or Foul and 23 Car. Segar and Dyers Case was cited The Court held the exception good and said that it is incertain what is meant by the word pullus and said that if the prescripsion had been pro omnibus averiis it had been good Prescription and the viz. should have been void but here it is only pro averiis Therefore nil capiat per billam Newton against Godard Trin. 1651. Banc. sup A Writ of Error was brought to reverse a judgement given in an Action of Debt at Ipswitch Error to reverse a judgement in debt The Case was this There issued out a Capias against the Principal and a judgement was given against him and after a scire facias issued out against the Bail and a judgement thereupon was given against the Bail Then the Plaintif takes out an Execution viz. a fieri facias against the Principal and Bail upon both the judgements to levy the debt recovered upon the goods and chattels of the Principal and Bail or either of them It was alleged that the execution thus taken out was not good for there ought to have been several executions upon the several judgements Execution and not one execution and to this the Court agreed and ordered the Defendant in the writ of Error to shew cause why the judgement should not be reversed In this Case Roll chief Iustice took an exception to the scire facias Abreviation because it was scire fac with a dash which might be as well scire faciatis as scire facias Spittlehouse against Farmery Trin. 1651. Banc. sup Hill 1650. rot 43. AN Action of accompt was brought against a Feme Covert an Administratrix and her Husband in the Common Pleas Error to reverse a judgment â— ven in an Action of Accompt and judgement given against the Defendants quod computent The Feme dies and the Husband brings a writ of Error in this Court to reverse this Iudgement Roll chief Iustice held that the writ of Error did not lie because the Record cannot be removed by it for that would disturb the proceedings in the Common Pleas and the party would have no fruit of his sute if the Record should be removed nor any remedy to recover the arrears due unto him Original Scire facias Yet the Original is determined by the Iudgement given quod computent and a scire facias lies by the Executor as the case here is Ierman Iustice to the same effect and cited 1 H. 7. f. 2. Nicholas Iustice to the same intent and said he did not much regard the Book of 21 Ed. 3. because there are other Books against it Ask Iustice ad idem Roll chief Iustice put these cases A judgement was given in Dower for the Demandant and another judgement that she shall recover her damages and this second judgement for the damages was reversed by a writ of Error because she did not aver that her Husband died seised in which case she is to have no damages Iudgement yet the first judgement for the Dower stood unreversed and Hill 43 Eliz. C. B. in one Williams and Whites case in an â—â—ction of Accompt 2 judgements were given and the second wâ—s reversed and the first stood unreversed In the principle case the rule was judicium nisi VVallis against Bucknal Trin. 1651. Banc. sup Trin. 1649. rot 600. VPon a special Verdict the case fell out to be this Sâ—ecâ—al verdict upon a Custom of a Manor One selfe d of Copy-hold lands of inhâ—ritance made a Letter of Attorney unto two joyntly and severally to surrender the lands after his death to certain uses according to the Custom of the Manor The question was whether this was a good Custom or no. Ellis of Councel with the Plaintif argued that it was not a good Custom because a Custom ought to be reasonable but this Custom is unreasonable because it is not only against a particular Law but it is against the general rule of Law to pass estates of inheritance in such a Manor and although particular Customs may be against publique interest pro boâ—o publico yet this is nothing to our case for this is not for the publique good and therefore it is not good 2ly An authority ought to be countermandable and to determine by the death of the party that gives the authority but here it is not so but it is to continue after his death Next no man can give authority to another to do a thing which he himself could not do but here it is otherwise and therefore it is not good Also by the death of the Copyholder the Law settles the lands in the
Plaintiff it was moved in arrest of Iudgement that the words are not actionable 1. Because the words spoken are of spiritual conusance and punishable in the Ecclesiastical Court and not at the Common Law 2ly The party may keep a Bawdy House and not know it to be such and then he is not punishable for it and so cannot be prejudiced by the speaking of the words 3ly Case There is no Statute against keeping of a Bawdy house as the Declaration lays it but for keeping of a Common Bawdy house But Ierman Nicholas and Ask Iustices Roll chief Iustice being absent held that the words are actionable for the keeping of a Bawdy house is an offence punishable at the Common Law as being a misdemeanor and breach of the peace and therefore ordered judgement to be entred except cause should be shewn to the contrary Saturday next Green against How Pasch 652. Banc. sup Entred Hill 1651. rot 1295. Q. PAnel moved for How the Defendant to arrest judgement after a verdict given against him for Green the Plaintif in an action upon the Case brought for speaking these words of her viz. Arrest of Iudgement in aâ— Acti â—n upon the Case for words You are a Whore and a Iade and a strumpetly Whore and I will prove you a Common Whore his Exception was that the words are not in themselves actionable for they are but words of choler and heat and the Plaintif is not brought within danger of the late Statute made against whoredom by the speaking of them and he cited for authority Freeman and Childers case Trin. 1651. rot 45. where these words viz. You are a Whore I will prove you an arrant Whore were adjudged not actionable The rule was to stay judgement till the Plaintif should move Barcock against Tompson Pasch 1652. Banc. sup Mich. 1650. rot 444. IN an Audita querela the Case was this Where an Audita querela lies for the Bail upon an erronious judgement against the principal An Action of Debt was brought against the Principal and a judgement upon a nihil dicit obtained but no capias ad satisfaciendum issued forth against him Afterwards 2 scire facias were taken out against the Bail and 2 nâ—chils thereupon returned and thereupon judgement was given against the Bail who thereupon brings his Audita querela The Question was whether the Audita querela did lie or not in regard that the scire facias issued forth against the Bail before any capias ad satisfaciendum was taken forth upon the judgement upon the nihil dicit against the Principal Green of Councel with the Defendant held that the Audita querela did not lie because that the party hath other remedy to relieve himself and therefore the Audita querela lies not for that is given only where the other party hath no other remedy 21 E. 3. f. 12. Brook Audita quer 18. And besides here are two nichils returned against the party which do amount to a scire feci and so the party is warned and therefore he comes now too late to have his Audita querela for here is as much as a judgement by default after an appearance and here is no release and there is a judgement executed and in force and not reversed by the Principal Green and Le Grices case Pasch 39. Sir Francis Mores Reports Wild for the Plaintif held that the Audita querela did well lie because that no scire facias ought to have issued against the Bail before a capias ad satisfaciendum taken forth against the Principal And an Audita querela is in the nature of a sute in Chancery and the party comes soon enough here to be relieved though the scire facias be returned for the return thereof shall not bar him from his Audita querela although it be now too late for him to reverse the judgement by a writ of Error and the books 21 E. 3.13 and Kelw. 23 24. are in the very point And the party by the return of the 2 nichils is not in Court And in Mores Reports in Hobs and Todcasters case 38 Eliz. it is adjudged that an Audita querela doth lie Roll chief Iustice when one is Bail in the Common Pleas he is bound to bring in the body of the Principal Bail or to pay the debt And Pomeroys case is that until a Capias be returned against the Principal the Bail cannot forfeit his Recognisance Recognisance Forfeiture for the non-appearance of the Principal for the filing of the Capias is not sufficient but it must be returned And this was the antient course there and the Law so held to be but by usage of later times and out of indulgence shewed to the Bail it hath been held sufficient for the Bail to bring in the principal after the retorn of the Capias and now at this day out of greater indulgence afforded unto the Bail it is well enough if the Bail bring in the Principal at any time before the return of the second scire facias but after it is returned then it is too late for him to bring him in Error and that is the reason that in such Case a writ of Error lies not for the Bail to reverse the judgement against the Principal If a scire facias be brought against the Bail and he pleads that the Principal dyed before the return of the Capias against him it is adjudged to be a good plea for the Bail to discharge himself Plea but to plead he dyed after the return is not good And it is a good plea for the Bail in a scire facias brought against him to say that no capias was returned against the Principal And here is a good discharge in Law against the Bail But the question here is whether the return of the two Nichils be not a Bar to him now and that he hath not thereby lost his advantage to bring his Audita querela Audita querela because by the return thereof the party is supposed to have notice and therefore a writ of Error clearly lies not to reverse this judgement though it be upon a nihil dicit And as to that in as much as the party hath no other remedy to help himself and it is apparent that he is damnified by an undue judgment it is reason he should bring his Audita querela Barns and Corbets case The Bail cannot say the Principal hath paid the money if he have not an acquittance or matter of Record to prove it and in Sir John Mounsons case upon two nichils returned adjudged that the party might have his Audita querela and therefore the Plaintif ought to have his Iudgement Ierman Iustice dissented But Nicholas Iustice absente Ask agreed with Roll and said that for want of the return of the Capias the judgement was erronious and the 2 scire facias might be returned behind the parties back therefore it could not be said to be all
and so the stile implies common by intendment The Court advised till the next Term. This Case was afterwards moved by Latch who said That here is no variance between the Writ and the Record although the Writ be not so full as it might have been to describe the Record and it is agreeable to the antient and usual practice at this day and cited the old book of Entryes 171 and said that in Paytons case the Record was in Curia Domini Regis Civitatis and the writ of Error was in Curia Civitatis Glocestriae Mich. 23 Car. Banc. Reg. rot 569. and all Courts of Record are originally the Kings Hales on the other side said that the writ of Error ought to shew whose the Court is and the rather because it is said to be Curia Manerii Wadham Windham The Register is both ways and by direction of Parliament the Common Pleas is stiled Curia de Communi Banco But here the Record appears to be Custodum c. Civitatis and the Writ doth not mention that The Court would advise oâ— the Presidents This case was again moved and Lodge and Woodhalls case 22 Car. urged that the Return of the Certiorari upon the writ of Error was not good for the variance formerly alleged but Wadham Windham held it good enough and relyed upon Presidents shewed to Hern the Secondary as the Court had directed Hales on the other side urged that the variance made it not good for it cannot be intended the same Court Roll chief Iustice here is no diâ—â— opposition between them for they may both stand together and the writ of Error intends it to be a Court of Record and yet it is the Court of the Manor also and therefore it is good in substance De facto it is the Court of the Lord of the Mannor but virtually and in dignity it is the Court of the King but the Venire is clearly vitious and therefore let the Iudgement be reversed for that cause Jervis and Lucas Mich. 1652. Bane sup THe Court was moved for one Iervis Motion for the Court to view a wound to encrease damages that the Court might view his wound and increase the damages given him by the Iury because they had given him but twelve pence damages for his wounding whereas the parties Arm was broken and he was in great danger still to lose the use of it But Roll chief Iustice answered it appears not by his Declaration what manner of wounding it was he received as it ought to have been and how can we know how he was wounded But we will advise and hear Councel on both sides At another day Serjeant Parker moved the same matter again and cited 3 H. 4. f. 4. and 18 H. 4. f. 23. and Dyer to prove the Court might increase the damages Twisden answered That the wounding ought to have been particularly expressed in the Declaration that the Court might judge of it by the Record and the party is not to be viewed by the Court upon the bare averment of the party made at the Bar. View To which Roll chief Iustice agreed and said how can it appear to us that he was wounded so as you aver by this Battery for it may be he was wounded since your action neither can you now discontinue the Action because it is after a verdict Discontinuance so that you are now without remedy Mich. 1652. Banc. sup THe Court was moved for a prohibition to the Prerogative Court Motion for a Prohibition to the Prerogative Court because they do proceed to examine witnesses there to disprove a will that was proved there 20 years since by which Will lands were devised and the lands are sold and this they do to prevent a tryal at Law touching the title of the land directed out of the Chancery Roll chief Iustice answered they may examine the probate there for you have libelled there to take benefit of the probate and therefore the other party may disprove the probate if he can as far as concerns any goods devised by the will And therefore we will grant no prohibition Mich. 1652. Banc. sup THe Court was moved for the Parishioners and Officers of the Parish of Clarkenwell Motion to make Scavengers execute their Office By-laws Mandamus to make Scavengers that are elected in that Parish to serve the Office Roll chief Iustice answered It is marvel that the City of London do not look to this for they have power by their by-by-laws to make men serve such offices yet take a mandamus for them to be brought hither to shew cause why they will not execute the Office Actoâ— and Ayres Mich. 1652. Banc. sup A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Ejectione firmae Error to reverse a judgment in the Common Pleas in an Ejectione firmae Iudgement and the Error assigned was that the judgement was quod querens recuperet the words quod defendens capiatur are omitted And upon this Exception the Court reversed the judgement for they said in this judgement thus entred there is no return of damages nor a Capiatur and so the Common-wealth is cozened of the fine and the Defendant barred from bringing his writ of Error Dawkes and Coveneigh Mich. 1652. Banc. sup Hill 1650. rot 653. COveneigh was endicted for felony for breaking the house and taking 250 l. Special Verdict in an Action of Trespaâ—â— quare clausum irâ—gâ—t out of the house of Dawkes and found guilty and was burnt in the hand afterwards Dawkes brings an Action of Trespasse quare clausum fregit and for carrying away the 250 l. against Coveneigh who pleads not guilty and thereupon a special verdict was found to this effect that the Defendant did feloniously break the house and carry away the 250 l. and was endicted for it and was found guilty and burnt in the hand for it and if upon the whole matter c. The question upon the special verdict was If after the Defendant was endicted and found guilty and burnt in the hand for this fact at the sute of the keepers of the libertyes of England c. an Action of Trespasse quare clausum fregit and for carrying away the mony be maintainable by the party who was thus robbed against the party that robbed him or no. Latch of Councel with the Plaintiff held that the Action did well lye and that the Plaintiff ought to have Iudgement and that this special matter found by the Iury is no bar to the Action for if he had been attainted for another Felony it would not have barred the Plaintiff from his Action after he had been discharged but otherwise it is if the party bring his Action whilst the party stands attainted or the party be attainted pending the Action of Trespasse 33 Eliz. Wade and Prescots case in this Court and 34 Eliz. Trussels case in this Court and 6 Ed. 4. 4. and in our
and upon this the Defendant demurred and upon the Demurrer the Case was this A Lease was made for one year the Lessee covenants for him and his Assigns to pay the rent so long as he and they shall have the possession of the thing let the Lessee assigns over his Term the Term expires the Assignee continues the possession after the Term expired and for rent behind by the Assignee after the expiration of the Term the Lessor brings the Action and the question was whether here be such an Assignee that the Action will lie against or not Roll chief Iust held that though here be not an Assignée strictly Assignee Covenant according to the rules of Law yet that he shall be accompted such an Assignee as is to perform the Covenants made between the parties and ruled the Defendant to shew cause why the Plaintif should not have judgement Nota. Wood and Markham Hill 1653. Banc. sup VPon an Ejectione firmae brought For a restitution after an habere facias possessionem executed and a Tryal thereupon had a Verdict was found for the Plaintif but upon an agreement made betwéen the Plaintif and the Defendant the Defendant was to hold the land recovered the remainder of his Term to come and according to this agreement he held it for 2 years but afterwards before his term expired the Plaintif takes out an habere facias possessionem and executes it Serj. Bernard moved for the Defendant upon this matter shewed to the Court That the Defendant might have a rule for restitution But Roll chief Iustice answered It cannot be Restitution but you must have your Action upon the Case against the Plaintif for not performing his agreement Case for the Act seems to be unconscionable Masters and VVallis Hill 1653. Banc. sup Pasch 1652. rot 581. A Writ of Error was brought in this Court to reverse a Iudgement given in the Common Pleas in an Action of Trespass quare vi et armis and the Error assigned was Error to reverse a judgement in Trespass quare vi et aâ—mis that the Trespass is concluded to be contra pacem c. but doth not say publicam Twisden answered that it is well enough because the Action was comment'd by Original but if it had been by Bill it would have been otherwise Roll chief Iustice It is the use in the Common Pleas to make such short recitals but in the beginning of the Record here it is recited at large and if it were not recited at large it would not be good Recital but for the matter it self it is matter of substance and generally it ought to be concluded to be contra pacem publicam yet it is good here as it is for the reasons before alleged Affirmetur judicium nisi c. Hill 1653. Banc. sup VVIld moved against a Sherif that he may not be admitted to file the retorn of a writ directed to him Against filing a return of a writ because an Action upon the Case is depending against him for not returning this writ and if he should now be admitted to file the return he would thereby abate our Action Roll chief Iustice If the writ be not filed it shall not be filed till the Court be moved but he cannot file it as of this Term though he should file it for the return of the writ as it seems is long since past but if the retorn be already filed you move too late Swan and Fenham Hill 1953. Banc. sup Trin. 1650. rot 1072. IN an Action of Trepass and Ejectment a special Vâ—rdict was found Special verdict in Trespass and Ejectment and in it this Custom viz. That the Owners of Houses in the Town of New-Castle in fee simple may devise them by Paroll but not Tenants in tayl and it was further found that the Testator was seised of the Houses in question in fee tayl in possession and of the remainder of them in fee-simple and so seised did devise them by Paroll The question was whether this devise was warranted by the Custom Shafto argued that the Custom did not warrant this devise because Customs are not to be enlarged by construction but are to be taken strictly and according to the letter because they run in abridgement of the Common-law and so are not to be favoured 9 E. 3. f. 38.11 H. 4. f. 33.5 H. 6. f. 51. Next here are immaterial words found in the Verdict for if it be the Custom for Tenant in fee-simple to devise yet this extends not to tenant in tayl 27 H. 6. f. 5.21 E. 4. f. 24. and a devise of rent to be issuing out of these Houses is not good within the Custom although that a rent doth follow the nature of the Land 22 Assis pl. 78.26 H. 8.54 It is true Cook in his Littleton f. 111. saith that one may devise a rent in remainder but I deny this for the authorities of the Books are against him An estate in remainder is not Assets nor can be devised 3 H. 7. f. 23 24. a condition goes to an Estate tayl not to a fée-simple in remainder 6 Rep. f. 33. And here is but a power of an Estate and not an Estate in possession Lit. sect 137. And the finding here that the Tenant in tayl did die without issue is not material for this could not be known at the time of the devise and the devise takes its effect in the time of the Devisor 27 H. 8. Dyer 45.5 Eliz. Dyer Bishops Case 1 Rep. Archers Case f. â—6 2ly Here is no Custom found to intitle the party for a Town cannot have a Custom as it is here found though a Borough may 22 Ass 178 and this is not found to be an antient Vill 7 H. 6. Dyer 22 H. 6. Fitzh praescript 47. Next the Custom is not found that Burgers may devise as it ought to be Turner Iohn on the other side held that some Estate doth pass by the Will and it matters not what Estate passeth and the Owners of Houses in our Case shall be intended to be Tenants in fee-simple and it is not necessary that they be Tenants in fee in possession Perkins devises Plowd 262. Dyer 22.22 Eliz 371. p. 5. and the Custom here found is no more but an ordinary Custom common to other Boroughs and it shall not be intended a special Custom And this case may be resembled to Cases upon the Statute of 32 34 H. 8. for devising of Lands 10 Rep. f. 81. Trin. 34 Eliz. Benefilds Case there cited and 35 Eliz. Howards Case which prove that reversions may be devised Nat. brev 199. a. Perkins Devises Pl. 540. is the very Case in question and the Cases put on the other side come not to our Case Roll chief Iustice It is not necessary in a special Verdict to be so precise as in pleading Special verdict but something may be supplyed and the verdict hath found that he was Owner and that the
seems should make the Law in this Case Dyer 33 H. 8. is the express case Attorney 20 H. 6.32 The Court advised At another day Roll chief Iustice said That the opinion of the Court was that an Attorney may plead his privilege by an Attorney and there is no inconvenience follows by doing it but it is true the Presidents are both ways and it is not contrary to any thing he hath done and it may be he is sick or hath business in another Court where he is necessarily attend Therefore let his plea be allowed nisi Leake and Reynolds Hill 1653. Banc. sup LEake brought an Action of Debt upon an Obligation against Reynolds Special verdict in debt upon a bond The Defendant pleads non est factum the Iury upon issue joyned find a special verdict to this effect That the Plaintifs Declaration is upon an Obligation dated the 24 day of the month and they find that the Obligation was sealed and delivered the 27 day of the month but bears date the 24 day and whether this shall be accompted the same Obligation upon which the Plaintif declares or not is left to the Court to determine Green for the Plaintif said that this case is the same with Goddards case and there it was adjudged a good deed 12 H. 6. f. 1. Dyer 247. and in the end of Goddards case the case in point is adjudged Roll chief Iustice This is a plea in Bar Plea and not in abatement therefore take your judgement Hill 1653. Upper Bench. BY Roll chief Iustice What is not slanderiâ—g a title If one hath colour of title to land an Action of the Case will not lie against him for saying I have better title to the land than you though his title be not so good as the others title is Nota. VVingfield and Valence Hill 1653. Banc. sup Hill 1650. rot 1409. LAtch moved to have restitution of monies out of the hands of a Sherif For resti ution of monies in the Sherif-hands which he had levied upon an execution taken out of this Court because it issued forth erroniously for before the Execution taken forth the Defendant brought his writ of Error in the Chequer Chamber to reverse the judgement and the Record was removed thither and although the late Statute say that a writ of Error shall be no supersedeas to stay execution yet the Record being removed into the Exchequer Chamber no execution can be granted out here for here is no Record to warrant it Roll chief Iust The case being moved again at another day till when the Court would advise said The Record is removed by a writ of Error in the Exchequer Chamber and is not now before us nor was at the time when the Execution issued forth and this being after a verdict and a judgement the writ of Error is no supersedeas and so it is mischievous both ways Mischief Supersedeas but how can we help it yet take a supersedeas quia erronice to supersede the execution for it was ill awarded and take the moneys out of the Sherifs hands Nota. The Protector and Captain Streeter Hill 1653. Banc. sup CAptain Streeter was brought in Court by habeas Corpus For delivery of a Prisoner appearing upon a Habeas Corpus and upon the return read and filed it appears that he was committed by an Order of Parliament for publishing scandalous and sedilious books Twisden moved that the prisoner might be bailed because that the Parliament is now dissolved and by consequence the Order by which he was committed is of no sorce Mr. Attorney General on the other side urged that the Parliament was not dissolved but only the meeting of those persons in Parliament was dissolved for the Parliament by the antient Law is to be every year so that this is but in effect an adjournment and not a dissolution and besides this matter for which the prisoner stands committed cannot be here inquired of and so the cause of his commitment shall be intended to be good and the Parliament may commit without shewing the cause of the commitment and this commitment may be in order to his Tryal and the Prisoner is not without remedy for he may apply himself to the supreme Authority to whom the Parliament have resigned their power Twisden for the prisoner confessed that this Court cannot be Iudge of the Parliament but this Order by which he is committed differs from an Act of Parliament for this is temporary and determineth and although the authority of Parliament ceaseth not yet a particular Parliament may be dissolved as this was Wad Windham When a Parliament is dissolved the procéedings there are determined Flowrdews case 1 H. 7. the Latine case and the Parliament is now dissolved and not adjourned and a Parliament dissolved is not like the Courts of Iustice here in the Vacation time Wild This case is not like to the case where this Court remaunded a prisoner committed by the Parliament sitting the Parliament for the prisoner here is coram Protectore who may deliver him Captain Streeter Mr. Attorney labours to afperse me but shews no cause or crime for my commitment and I am here before the Protector in his own Court Attorney General Only the persons and their convention is dissolved but not the Court no more than this Court is by the demise of the King or in the Vacation time and I must refer it to the Court how far you will intermeddle in this case and this Order by which he stands committed may be his judgement there and then he cannot be delivered and I know no difference betwéen an Order and an Ordinance of Parliament and the stamp and authority of Parliament is upon this order and if the prisoners Counsel say true then he may have an Action of false imprisonment against his Gaoler Twisden Here is no Order of the Parliament returned but it expresseth that he was committed by the Speaker by vertue of an Order of the Parliament Roll chief Iustice We examine not the Orders of Parliament but the question is whether the Order doth now continue Order of Parliament Dissolution and I conceive it is determined by the dissolution of the Parliament and so would it have done by prorogation of the parliament because there is another Session and we can judge no otherwise of Orders of Parliament but by the words of them Ask Iustice If one that is committed by Order of Parliament cannot be delivered until another Parliament the peoples liverty will be lost for there may not be a Parliament in many years Roll chief Iustice A new Parliament hath not reference to the old but it is a new Court created upon new Summons and why may not the Prisoner be bailed without these disputes although he may apply himself elsewhere But the Court would advise because they perceived the prisoner stubborn At another day Mr. Attorney upon the prisoners appearance again upon his Habeas
it shall be intended he continued to be his Attorny if it appears as it doth that he prosecuted for him Therefore shew cause Friday next why the judgement should not be affirmed Postea Kemp and Gord. Trin. 1654. Banc. sup Hill 1653. rot 840. AN Action upon the Case was brought by the Maior and Commonalty of the Town of Lyscard in Cornwall against Gord for not grinding at their common Mill. The Defendant demurs to the Declaration Demurrer to a Declaration in an action upon the Case for not grinding at a Mill. And Wadham Windham for the Defendant urged that the Custom is not well alleged upon which the Action was grounded For first it is not shewed that the House where the Defendant inhabiteth and by reason whereof it is supposed he ought to grind at the Mill is held of the Maior and Commonalty 2ly It is not shewed that the Maior and Commonalty are bound to repair the Mill and do constantly keep Grinders and Loaders And for the first this Custome ought to be affixed by reason of the tenure of the House or in respect of the Corn growing upon the ground used with the House and it is not proper to say a man is bound to grind by reason of his House 8 Rep. Farmers case f. 125. Hob. Harding and Greens case 19 Ed. 2. Fitzh Ass â—â—9 For the second this grinding at the Mill is a personal service and if the Maior and Commonalty be not bound to repair the Mill and to find Grinders and Loaders then there is not quid pro quo and the Custom will be unreasonable and a meer oppression 22 Ass Pl. 58. Latch on the other side said here is a good Custom alleged and it is not necessary to shew any tenure in this Action being but an Action upon the Case and not a Secta ad molendinum and so is it agreed in Harding and Greens Case And in 9 Iac. Hill rot 691. an Action was brought for this very Cause and the Custom was then allowed to be good Roll chief Iustice I believe this is a good Custom and the Corporation is bound to repair the Mill Custom and there can be no prejudice for the party to grind here and the Custom hath been already tryed and found good Therefore let the Plaintiff have his Iudgement nisi c. Iones and Graves Trin. 1654. Banc. sup IN the Case of one Iones and Graves It was said by Roll chief Iustice Where a Writ is abated where it is abateable That if a Writ of Covenant be brought against three and one of them die the Writ is abated only to him but is not abated to the rest but only abateable but Latch fortment that it is abated to all Tompkins and Clark Trin. 1654. Banc. sup A Writ of Error was brought to reverse a judgement given in the Court at Newcastle upon Tyne Error to reverse a judgement in an action for words in an Action upon the Case for these words He meaning the Plaintif is a base beggarly Rascal and hath cozened the Parliament a hundred times and deserves to ride on the wooden horse standing on the Sand hill The Exceptions were that the words are not actionable for the Plaintif is at no loss or damage by speaking of them nor is thereby endangered of his life or to be punished corporally 2ly The words are not said to be spoken of the Plaintif nor to the Plaintif 3ly The Venire is not well issued Roll chief Iustice Reversetur nisi c. Stavley and Ulithorp Trin. 1654. Banc. sup LAtch moved again for judgement in this case formerly spoken to For judgement in an action on the Statute of 2 Ed. 6. concerning tithes notwithstanding the exception insisted upon by Shaftoe after the Court had delivered some opinion viz. that it was not expressed that the Parliament was held by prorogation because it is not necessary it should be so expressed 2ly The Action is here brought upon the second branch of the Statute which is that all persons shall set forth their tithes and the word subject is only mentioned in the first clause Maynard on the same side said that this mis-recital if it be a mis-recital affirms the Statute and it is not a false recital and therefore it doth not hurt Roll chief Iustice It is not good to make such recitals of Statutes in a Declaration Recitals nor would I have any recital made hereafter more than is necessary for the gist of the Action Shaftoe insisted upon it That the mis-recital here is a material Exception for the recital is not true for it is not all one to say the Subject of the King and to say the Subject of the then King for the former words goe to the pollitick capacity of the King as King and the latter words go to the natural capacity of his particular person Roll chief Iustice But what say you to that which is said on the other side That the Action is brought upon the second clause of the Statute which is that all persons shall set forth their tithes and not upon the first Clause which speaks of all Subjects of the King And the recital here is not material to the Action It is true here is a mis-recital and if the Action were brought upon the first Clause of the Statute it would not be good but it is not so here Therefore let the Plaintif have his Iudgement nisi Antea Trin. 1654. Banc. sup THe Court was moved for an Attachment against the Sherif of Staffordshire For an Attachment for making a frivolous return of a Habeas Corpus viz. That the Committee for poor prisoners had ordered he should not bring the body till they had consulted with the Lord chief Iustice Roll chief Iustice Take an Alias habeas Corpus with a pain of 80 l. Roby and Twelves Trin. 1654. Banc. sup Trin. 1652. rot 502. IN a special Verdict in an Ejectione firmae it was found Special verdict in an Ejectione firmae that there was a custom within the Manor of Castle Dunnington that any Copyholder of that Manor may make a writing in the nature of a Letter of Attorney to two Copyholders of the same Manor to surrender his Copyhold after his death The question was whether this was a good custom or not Alleyn argued for the custom that it was a good custom because such customs are not to be governed by the rules of the Common Law but by the rules of natural reason and are considerable in themselves and such customs may restrain the Common Law and the Common Law doth tollerate them And this custom that gives power to make this surrender after the Copyholders death is not unreasonable for the power given is not countermanded by his death no more than an Attorney is restrained by his masters death to act in the cause And in Butler and Baâ—ers case by the delivery of a deed after the death of the party the
Averment 3ly Here is no good averment because it cannot be thereby known for what cause the last Original was sued forth Cook Inst f. 20. 4ly Though there he an averment yet it is void by the parties own shewing 45 E. 3.2 21 H. 7.24 And our case differs from the case of 10 lib. Ass objected for there the averment was the Defendants averment but here it is the Plaintifs Also the damages in the first Original and the damages in the second Original do differ which ought not to be but they should agree otherwise the Originals shall not be presumed to be both of them for one and the same cause 6 Rep. Spencers case Estopple 12 H. 7.4 3 H. 6.9 And the party shall not be estopped here to say that he was a Knight and this misnosmer is well pleaded for there are but two ways to plead misnosmer Misnosmer pleased and we have pleaded it one of those ways Cooks Entries 689 690. Tit. Outlawries Rastal brief 608. Tit. Trespass 610 and the presidents of 1 E. 4.3 and 21 H. 7. are with us that he shall not be estopped and he pleads not expresly that he was an Esquire but only by way of implication Implication Consideration Serjeant Twisden on the other side prays for judgement and he argued 1. That here is a good consideration for he is intitled to have this writ by Fitz. Nat. Brev. 85. where it is said any person may make a surmise to have this writ for it conduces to the benefit of the Plaintif and of the Defendant also and the King may hinder any one from going beyond Sea 9 Car. Meads case 18 Iac. C. B Hall and Wollers case citeb by Hobart to be adjudged Replication 43 44 Eliz. Rippon and North. 2ly The Replication is good notwithstanding the Objection against it that here is not an averment Averment that the second Original is for the same cause as the first was for it is not necessary to make such an averment because that this is a special particular Action and not a general Action yet here is an averment if it be necessary Thirdly Here is no variance though the dammages doe differ for the wrong done is properly the cause of the Action Cause of Action and not the dammages suffered by the wrong and the encrease of time hath made the damages to encrease and so to differ 26 H. 8. f. 6. in a second deliverance Hill 8 Car. entred 5. Car. in this Court this point was resolved in Theophilus Finch and Laws case and the Misnosmer objected is not material Misnosmer Estoppel for he is estopped to plead it because he appears gratis by the name of Esq not upon the Sherifs retorn Dyer 19â— he must be admitted to be the same person and so is estopped to say the contrary 19 H. 6. f. 65. the Book of 19 H. 6. f. 43. is not against me for there the party came in upon the retorn of the Sherif and not voluntartly as he doth here Apparance Also the warrant of Attorny entred in English doth no hurt notwithstanding the objection that all pleadings ought to have béen in Latin at the time of the giving of the warrant Entry for a warrant of Attorny may be entred at any time because there is no precise time directed for the entring ot it 1 E. 3. f. 1.24 E. 3. f. 62.15 H. 7. f. 14.4 Ed. 4. f. 13. Stat. 32 H. 8. C. â— a warrant of Attorny entred at any time pending the plea is good at the time of the entring of it by the late Statute it ought to be in English Roll chief Iustice mutata opinione said he may Increase of dammages encrease his dammages by his second Action otherwise it would be unreasonable for he hath been delayed twenty years by the Outlawry of the Defendant And here is also a good consideration to ground the Action Consideration viz. the forbearance to sue out this Writ of ne exeat regnum for it is beneficial to the Defendant and it is for the Kings honor to grant it and the party by forbearing to sue it is freed of trouble by not being stayed in England to be sued here And here is no need of an averment Averment for it appears that both the Originals were sued forth for one and the same cause But the question is touching the manner of the pleading whether he be not estopped to say that he is a Knight Estople and not an Esquire and I see no reason why he should be estopped to say so notwithstanding his voluntary coming in to reverse the Outlawry for he comes in to save himself from arresting and the lying under an Outlawry and it would be mischievous if he did it not Construction and take all the plea together methinks it is good and the entry in English is good for it is to affirm a judgement and being good both waies we will take that which makes the judgement good Yet let it be argued again At another day the Case was put again and argued by Sergeant Glyn that the judgement was not good and first he admitted Consideration Averment that here is a good consideration to ground the Action upon 2ly He made question whether there be a good averment touching the going beyond Sea and touching the sum and he said that the judgement given in the Common-pleas was for the reason that he came in to reverse the Outlawry by the name of Esquire and this is by Estople Estople But I conceive it is no Estople for Knight is part of his name and so the Outlawry is not good 26 H. 6. there is no Estople made by the word praedict But if it be an Estople yet the Plaintif relies not upon it in his plea but upon other matter and that for these reasons 1. Because the course of pleading is generally so in reversing of Outlawries as it is here Pleading and so is the old book of Entries although some Presidents run the other way and in the Common-pleas it hath been adjudged good as it is here pleaded and he may well aver that he is not the same person 2ly Estoples are taken strictly against him that pleads them and are not favoured in Law and shall not be therfore taken by implication Implication Cooks lit f. 252. B. but if there should be an Estople here it must be by implication only and there ought not to be an Estople against an Estople in the same Record as it would also be here for he may as well be estopped to say that he is a Knight as to say that he is an Esquire Next the Plaintifs conclusion is not good Conclusion for he relies not upon the Estople and a good plea with an ill conclusion is not good 18 H. 6. f. 33. â—â— Rep. Rawlins case Roll chief Iustice Makes he not the conclusion upon the
Record let it be tead upon the reading it he said that he relies not on the conclusion and so the Estople is relyed upon Sergeant Twisden In our Sur-rebutter we rely upon the Estople although we do it not in our rejoynder and so it is good Sergeant Glyn But you do not conclude upon the Record to wit whether you shall be received against the Record as you ought to do 22 H. 6. f. 26. Roll chief Iustice It is in effect said so though it be not in expresse words Finch Henage on the other side argued in affirmance of the judgement and said the question is whether his comming in by the name of Esquire to reverse the Outlawry shall not be an Estople to him to say afterwards that he was a Knight and I conceive it is Estople because he that comes in gratis to reverse an Outlawry shall not plead Misnosmer Misnosmer 6 E. 4. f. 9. he who comes in gratis is not prejudiced if he be not allowed this plea but it is otherwise if he come in upon process to reverse it 2ly It is lesse mischievous to deny the plea of Misnosmer than to allow it where it is not allowable the pleading of the Misnosmer if it be not true may invegle the Court 10 E. 4.12 12 E. 4. f. 6.19 H. 6. f. 8. There are 4 kinds of Misnosmer 4 Misnosmer to wit misnosmer of the Christian name 2ly Of the Sirname 3ly Of addition of Profession 4ly Of addition of place and in none of them shall misnosmer be pleaded where the party comes in gratis Br. Misnosmer 48. 3 E. 4.5 27 H. 8. f. 1.15 H. 6. Statham pl. Error Dyer 192.21 E. 4. f. 8. Fitzh tit Misnosmer 8.39 H. 6.1 E. 4. and as the case here is he is estopped to plead misnosmer by reversing of the Outlawry which is a matter of Record Estople and by it he hath confirmed his name to be so 19 H. 6. f. 1.7 Ed. 4. f. 1. Although he might plead Misnosmer if he came in by a Cepi yet there he may also plead another way specially if he will and it will be good also 19 H. 6. f. 1. Nor hath he here relyed upon his Plea of Misnosmer but upon the want of Proclamation and he reversed the Outlawry by the name of Esquire and yet now he will say that he was a Knight which is unreasonable 34 H. 6. Fitzh Protest 7. and this is an allegation contra factum suum proprium Here is a second original Original and that is a good Original within the Statute and it appears that this second Original is against the same party and so he acknowledgeth by the Record by which the Court may be ascertained that he was the same person and his Addition mis-named shall do no hurt And the second Original is good as the Court hath agreed upon opening of the Case Roll chief Iustice he reverseth the Outlawry as an Esquire and afterwards sayes he is a Knight He may come in without Proces to reverse the Outlawry Outlawry where his person or estate is endangered by it 39 E. 3. in Debt 38 E. 3. but he cannot plead Misnosmer yet he may protest that he is a Knight and save himself in another sute which may be brought against him If he have pleaded right you agree that he is not estopped here and it appears that he is the same person and comes in gratis by this name Original yet it is no estople And the second Original is good for it appears that he is the same person and that by the Statute notwithstanding the variance and he may come in gratis without proces and take advantage of the error But argue again to the point whether he may bring a second Original by the Statute At another day it was argued again but I could not hear but 33 H. 6. f. 19. 50. was cited that there ought to be a mutual Estople Mutual Estople viz. on the part of the Plaintif and of the part of the Defendant Roll chief Iustice It appears to be one and the same party and we must maintain Actions against the Statute of Limitations because by that Statute the benefit of the Law is taken away in part Iudgement affirmed Therefore let the Iudgement be affirmed Hill 1654 Banc. sup MEmorandum the two Sherifs of London appeared in Court To shew cause why execution not done Retorn of the Sheriff in their proper persons upon a rule of Court to shew cause why they did not grant out execution upon a judgement given in their Court or else to make a sufficient retorn of a Certiorari directed to them because they had made three insufficient retorns Upon this their retorn now made was read the effect whereof was that there is no such judgement as the Writ mentioneth to make out execution upon View of the Record Roll chief Iustice This is a good retorn as it now is and if the tetorn be false you may take your remedy against them for making a false retorn Upon this the Councel prayed that the party might have a Copy of the Iudgement out of the Sherifs Office Roll chief Iustice You may have a sight of the Record and if they will not suffer you to have it you may have your remedy against them The rule was that the party should have a Copy of the Record Pasch 1655. Banc. sup VPon a motion for a new Tryal grounded upon an Affidavit For a new Tryal Tryal of an Issue Order of Chancery Venire de novo Roll chief Iustice said That if there be a Tryal and a verdict given upon it The same issue cannot be tryed again by the same Iury although the Chancery do order such a Tryal but if there be a mistryal the party must move the Court where the Action was commenced for a Venire de novo to summon a new Iury. Nota. The Protector and Bruster Pasc 1655. Banc. sup CArew upon a rule to shew cause why an attachment should not issue forth against Commissioners of Sewers in Suffolk for setting a Fine upon one for not obeying their orders Cause why no Attachment after a Certiorari was delivered unto them to remove the orders made against the party in contempt of this Court shewed for cause that the Fine set was for disobeying a new Order of theirs made against the party after the Certiorari was retorned Certiorari and not for disobeying the Orders removed by the Certiorari and so it was no contempt to this Court. Roll chief Iustice The Certiorari doth not remove the Commission of Sewers and therefore they may proceed upon the Commission notwithstanding the Certiorari Therefore let no Attachment issue against them Pasch 1655. Banc. sup THe Court was moved to quash a retorn of rescous Return of a Writ of restitution the rescouser being in Court Vpon this exception viz. that the Endictment sets forth
the Record It was said that a challenge to the array is no part of the Record but ought to be determined whether it be good or not by the Iudge before whom the tryal of the Cause should have been By whom to be determined Demurrer to a challenge if the challenge had not been taken and so hath it been ruled upon serious advise in the Common-pleas and it was then likewise said if there be a demurrer to a challenge at the Assises the Iudge of Assise may determine it there or over-rule it or adjourn it to be heard at another time Somes and Sir John Lenthall Mich. 1655. Banc. sup THe Court was enformed that an Action of Debt was formerly brought against Sir Iohn Lenthall and that there was Iudgement For Sir Iohn Lenthall the Mareschall to appear that he might be in execution and an execution thereupon taken out against him but that he abâ—conded himself that be could not be taken and therefore it was prayed in regard he was an Officer of this Court that the Court would order him to appear here that he may be committed in execution to the Sherif of Middlesex But Glyn chief Iustice answered if Sir Iohn Lenthall do appear here and you pray him in execution we can commit him to no other prison but the Marshalsea for that is the prison of this Court and to commit him to that prison of which he is the Kéeper without securing the Prisoners there before we do it will be an escape in Law of all the Prisoners Therefore let Sir Iohn shew cause why he should not pay the Debt for it is neither for his own credit nor the honor of this Court that he should not satisfie his Debts Fardres and Prowd Mich. 1655. Banc. sup HArdres brought an Action upon the Case against Prowd Arrest of judgement in an action upon the Case upon a promise and declared that whereas he at the instance and request of the Defendant had taken pains to reconcile differences betwixt the Defendant and I. S. and others the Defendant did assume and promise unto the Plaintif to pay unto him 100 l. at a certain day and for not paying the mony accordingly he brings his Action And upon non-assumpsit pleaded and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement 1. That here is no consideration set forth in the Declaration to ground the promise upon for it is only said that in consideration that the Plaintif had taken pains c. Consideration executed he did promise c. and this is a consideration executed and not sufficient to ground a promise upon and one Hunt and Dier case was cited for proof 2ly He doth not shew what pains he hath taken and so it cannot be known whether his pains were sufficient to ground the promise upon 3ly He sayes that he took pains to reconcile differences betwixt the Defendant and I. S. and others and doth not shew who these others were The two last exceptions were over-ruled without speaking to and to the first VVild answered that here was a continuing consideration Continuing consideration though the pains taken were past for it is said he took the pains at the instance and request of the Plaintif Glyn chief Iustice It is as you say Voluntary curtesie for here is more than a voluntary Curtesie upon which no consideration for a promise can be grounded for the pains here were undertaken at the instance of the Plaintif Iudicium nisi c. Mich. 1655. Banc. sup BY Glyn chief Iustice Where one may appear by Attorney where not If one come in upon the Eâ—igent he may appear by his Attorny but if he come in upon the Outlawry he must appear in his proper person and not by his Attorny and so is the constant practice of the Common-pleas and of this Court also Nota. London and VVilcocks Mich. 1655. Banc sup LOndon brought an Action of Trespass against VVilcocks inter alia Arrest of judgement in Trespass for taking and carrying away 40 loads of Corn in the Straw Vpon a verdict found for the Plaintif it was moved in arrest of Iudgement that the Declaration was uncertain for the Plaintif had declared for 40 loads of Corn in the Straw and it doth not appear whether they be Horse-loads or Cart-loads or what other loads of Corn they are But Glyn chief Iustice answered that it is well enough expressed for it being of Corn in the Straw it shall be intended Cart-loads and therefore let the Plaintif have his Iudgement Judgement Q. If the Action had been laid in the County of Cornwell where it is usual to carry Corn in the Straw upon Horses whether the Declaration would have been good VVood and Gunston Mich. 1655. Banc. sup WOod brought an Action upon the Case against Gunston for speaking of scandalous words against For a new tryal in an action of Trespass for 〈◊〉 words and amongst other words for calling him Traytor and obteyns a verdict against him at the Bar wherein the Iury gave 1500 l. dammages Vpon the supposition that the dammages were excessive and that the Iury did favour the Plaintif the Defendant moved for a new tryal But Sergeant Maynard opposed it and said that after a verdict the partiality of the Iury ought not to be questioned nor is there any Presidents for it in our Books of the Law and it would be of dangerous consequence if it should be suffered and the greatness of the dammages given can be no cause for a new tryal but if it were the dammages are not here excessive if the words spoken be well considered for they tend to take away the Plaintifs estate and his life VVindham on the other side pressed for a new tryal and said it was a packed business else there could not have been so great dammages and the Court hath power in extraordinary cases such as this is to grant a new tryal Glyn chief Justice Discretion of the Court. Discretion Judicial Arbitrary The Court not to be intended partial It is in the discretion of the Court in some cases to grant a new tryal but this must be a judicial and not an arbitrary discretion and it is frequent in our Books for the Court to take notice of miscariages of Iuries and to grant new tryals upon them and it is for the peoples benefit that it should be so for a Iury may sometimes by indirect dealings be moved to side with one party and not to be indifferent betwixt them but it cannot be so intended of the Court wherefore let there be a new tryal the next Term and the Defendant shall pay full Costs and judgement to be upon this Verdict to stand for security to pay what shall be recovered upon the next verdict Granted The Protector and Buckner Mich. 1655. Banc. sup BUckner was endicted upon the Statute of 1. Iac. Special verdict upon an endictment upon the
make a ditch or raise up a bank to hinder my way to my Common I may justifie the throwing of it down and the filling of it up Mich. 1655. BY Glyn chief Iustice Damages in Dower If a Feme bring a writ of dower and recover and the Defendant die the feme shall have her damages against the Terr-Tenants Mich. 1655. A Writ of Error quod coram vobis residet is when a writ of Error is brought to reverse a judgement given in the Common pleas Error quod coram vobis residet what it is or other Court where the Record was formerly removed into the Court of the Vpper Bench and by reason of the death of the party or for some other cause rests undetermined by reason of the abatement of the former writ of Error Le pool and Tryan Mich. 1655. Banc. sup VVIld moved for a prohibition to the Court of Admiralty to stay a tryal there in a Trover and Conversion For a prohibition to the admiralty in which they procéed upon a pretence that the goods in question were taken upon the High Sea and that by the late Act they have exclusive power in all such cases which is not so Glyn chief Justice It was resolved in Cremers and Cokelyes case so adjudged that they have no such power Therefore take a prohibition nisi c. Morden and Hart. Mich. 1655. Banc. sup MOrden brought an Action of debt upon an Obligation to stand to an Award against Hart. Vpon nil debet pleaded Arrest of judgement in debt upon an Obligation to stand to an Award and a verdict for the Plaintif it was moved in Arrest of judgement and the exception taken was that the Award was made but of one part and so not binding to all the parties submitting The case was this One Stephens and Body on one part also Hart on the other part submitted to stand to the Award The Arbitrators awarded that Body should pay a certain sum of money unto Hart in satisfaction for the differences betwixt Body and Stephens on the one part and Hart on the other part which was objected could not be good for the money paid by one could not be in satisfaction for another and so the Award is not made to conclude all the parties submitting for Stephens was not concerned in it and the Award is with an Ita quod which ought to be a general Award and include all parties and therefore if it be void in part it is void in all But Green on the other side answered though the Award should be naught in part yet it may be good as to Body that paid the money and the moneys ought to be received as they are paid and that is for Body and Stephens and may be well in satisfaction for both of them It was also urged by Howell on the same side that it appears that Body and Stephens are partners and this will make an end of the matter for then the money paid by one of them may satisfie for the other Award in part Glyn chief Iustice Here is a good Award betwéen two of the parties that submitted but there appears nothing to be awarded as to Stephens the third party for it doth not appear that he can take any benefit by the Award of the money to be paid by Body or that it can be any satisfaction for him but only for Body Iudgement for the Defendant Iudgement for the Defendant nisi c. Busfield and Norden Mich. 1655. Banc. sup A Writ of Error was brought by Busfield against Nordon to reverse a judgement given in the Court Military of Rippon in an action upon an indebitatus assumpsit for wares sold Error to reverse a judgement upon an indebitatus assumpsit by the Bail wherein there being a judgement given against the principal a scire facias issued out against the Ball and a judgement was thereupon and against him the bail thereupon brings a writ of Error to reverse both these judgements and assigns for Error that there was no issue joyned in the first judgement and that being erronious Bail cannot reverse the principal judgement The writ abaed and being the ground upon which the scire facias did issue forth whereupon the second judgement was given the second judgement cannot be good Glyn chief Iustice But the principal judgement ought to be reversed by the principal and not by the bail and therefore the writ of Error is not well brought by the bail therefore let it abate Vidian and Fletcher Mich. 1655. Banc. sup VPon view of an Infant brought into Court of to be inspected Scire facias for an Infant to â—everse a fine levâ—ed ouâ—ing Covertuâ—e who had during coverture joyned with her husband in levying a fine of her lands she was by the Court adjudged within age whereupon a scire facias issued out to the Terr-tenants who came in and pleaded that she was of full age at the time of the fine levied upon which plea issue was joyned and a tryal was had at the Assizes and a Verdict for the Plaintif who now came in Court and prayed for judgement upon the Verdict Glyn chief Iustice The Court is to judge of the Infancy Iury not to try Infancy and not the Iury and therefore you have not proceeded duly but the proceedings do no hurt for we judge she was within age Fine reversed Therefore let the fine be reversed nisi c. Nota. and the hundred of Crondon Mich. 1655. Banc. sup AN Action of Trespass upon the case was brought against the Hundred of Crondon in Hampshire upon the Stat. of Winchester Arrest of Judgement in an Action upon the Statute of Huc and Câ—yes Case Statute by one that was robbed within the hundred upon the tryal a verdict passed for the Plaintif It was moved on the behalf of the Hundred in Arrest of judgement 1. That the Plaintif had mistaken his Action for whereas he hath brought a general Action of Trespass upon the case he ought to have brought an Action upon the Statute 2ly He declares that he took his Oath before I. S. a Iustice of Peace in the County Whereas it should be for the County 3ly He hath not expressed that he took his Oath before a Iustice assigned to keep the Peace 4ly There is no issue joyned 5ly He saith that he took his Oath 20 days but doth not say next before as the Statute directs Windham on the other side answered to the first Exception that it is usual of latter times to declare in an Action upon the Case generally To the second he said it is no exception for a Iustice of Peace is not an Officer affâ—red to a place Serjeant Twisden But it doth not appear that you took your Oath 20 days before your Original sued out Glyn chief Iustice That appears well enough upon the Record Variation But the writ here is in an Action upon the case
give Green answered that the Plaintif is not bound to shew it precisely for he cannot tell what the Defendant had received and what not but the Defendant doth know it well enough Glyn chief Iustice I doubt of that for the Plaintif must know that the Defendant hath received some monies which he hath not accompted for otherwise there is no cause of Action and though it be not necessary for you to shew all the particular sums the Defendant hath received and not accompted for yet you must express some sum with which to charge him withall and therefore as to this exception I think it material and the Declaration is too general to charge the Defendant by for what issue can be joyned upon this for here doth not appear to be any breath of the Articles but only by implication that he hath received some monies unaccounted for and an issue cannot be tryed upon a presumption Issue Presumption Green prayed leave to discontinue the Action But Wild on the other side said it ought not to be because the Action is brought against a Surety only that was bound for the Defendant that he should perform Articles Glyn chief Iustice If he do discontinue the Action Discontinuance he hath no further remedy against the Defendant But shew cause why he should not appear upon the Articles and to pay so much as it shall be found that he is dampnified by breach of them and then he shall discontinue Devereux and Jackson Mich. 1655. Banc. sup Hill 1654. rot 835. A Writ of Error was brought to reverse a judgement given in an Action of Debt and the exception taken was Error to reverse a judgement in debt that the Plaintif had brought his Action for 14 l. and he declares of a Debt due to him for wares sold by him unto the Defendant which by his own shewing come but to twelve pound Glyn chief Iustice I conceive it is not good for the variance and therefore let the Iudgement be reversed Variance Reversed nisi c. Pooly and Markham Mich 16â—5 Banc. sup THe Court was moved that the Secondary might retorn a Iury upon Affidavit that the Plaintif in a former tryal between the parties had feasted four of the Iury For the Secondary to reâ—orn a Iury. and had allo feasted some of the Iury that are retorned upon this tryal Glyn chief Iustice Let the Freeholders book be brought to the Secondary and let him retorn a Iury. Granted The Protector and the Town of Kingston upon Thames Yates his Case and others Mich. 1655. Banc. sup YAtes and four or five other persons Upon the retorn of a writ of Restitution to Freement places in Kingston upon Thames Freemen of the Town of Kingston upon Thames being disfranchised by the Baylifs c. of that Corporation moved for a writ of restitution to be restored to their freedoms and places in that Town and had it granted which writ was accordingly directed to the Bailifs c. of that Corporation who thereupon do make retorn of the writ and therein set forth at large there Charter and privileges of the Town and the cause of the disfranchisement of Yates and the others and reasons why they were not to be restored And by the retorn the matter of fact for which they were disfranchised appeared to be in substance this viz. that there was a difference amongst those of the Corporation about making an Attorny of their Court at a Court held for the Town that there was like to be a tumult and uproar about this matter whereupon the Baylifs that held the Court did adjourn the Court and commanded all persons there to depart and then they with the rest that were of their party went away But the other parties on the contrary side whereof Yates and the rest that were disfranchised were a part stayed still in the Town-Hall and said the Court was not dissolved and did affirm they were a Court and did therupon make divers orders or acts of Court and caused them to be entred in the Court book where all the orders used to be entred To this retorn many exceptions were taken and first by Sergeant Twisden 1. That here was no sufficient matter of fact retorned to be done by Yates and the others to cause them to be disfranchised 2ly That the retorn did not shew that the Customs of their Corporation did warrant them to disfranchise any for such offences or did shew that any person had at any time been disfranchised for such offences 3ly The retorn mentions that the persons disfranchised had broken their oaths as Freemen of the Town but doth not set forth this oath at large as it ought to be 4ly They do not shew in the retorn that they had any authority to hold that Court which they dissolved nor before whom it was held 5ly It is not shewed in the retorn that Yates and the others were at all convented to answer their offences and so they are condemned without hearing of them which is illegal To these exceptions Green of Councel to maintain the retorn made this answer for the first he said there doth appear a sufficient fact to be done by Yates and the rest to cause them to be disfranchised viz. their tumultuous going into the Court and staying there after it was dissolved and making of orders and entring them into the Book and cited Sir Iames Bags case that this their fact was a corrupting the orders of the Town For the second the retorn doth sufficiently express that by their Customs they may remove persons from their places in the Corporation for such offences for the retorn saith Removeable that persons have been from time to time removeable which is all one as if it had said they have been removed 3ly It is not necessary to set forth the whole oath of a Freeman and here is as much of the oath mentioned as is needfull to shew that the oath was broken by them 4ly It is shewed in the retorn that the Court was held according to their Customes and so it shall be intended to be a good Court and rightly held and it needs not to be expressed before whom it was held 5ly It is expressed that they were convented and that they had also notice of the dissolution of the Court Mr. Attorney General on the same side said Here is cause to disfranchise the parties for here appears by their fact to be a setting up of government against government Opposition of government and this is corrupting of government and done by knowing persons that well understand the Custome of the Town which makes their crimes the greater and it is better retorned that such persons are removeable than to say they have been removed and here is more than an opinion of one of the parties against the opinon of the others for they have reduced their opinion into an Act to disturb the government Mr. Recorder of London on
1. 327 C. 1. 329 330 346 C. 3 385 C. 2. 386 C. 3. 400 C. 2. 406 C. 416 C. 1. 425 C. 2 435 C. 1. VVhere a Judgement may be reversed in part only and where not p. 121 C. 2. Judgement against an Attorney for false practice 483 C. 1. Where there ought to be a special judgement and where not 287 288 299 C. 2. VVhere and for what a Iudgement may be reversed by a writ of Error and where not 217 C. 1. 290 C. 2. 471 C. 2. 476 C. 1. 17 Jurisdiction vid. Courts VVhat Iurisdiction Iustices of Assise and Oyer and Terminer have and what not 430 C. 2. 18 Iury. Where one may try a cause twice and where not p. 34 C. 1. 232 C. 3. 445 C. 1. VVhere the panel of the Iury may be quashed and where not 233 C. 3. Of what matters a Iury may enquire and of what not 472 C. 1. VVhat things the Iury may do by leave of the Court. 448 C. 1. VVhere the Sherif shall not retorn the Iury. 477 C. 2. 19 Iustice of Peace vid. Peace 20 Iustification VVhat shall be said a good Iustification by way of plea vid. Plea VVhat things one may justifie the doing of and of what not 470 C. 1. K King Of the duty of a King 40. Of the Kings Prerogative and what privileges he may have thereby and what not p. 40 41 266 267 c. 375 376 377. VVhat the King may grant and what not 252 266 267 c. 375 376 377. VVhat grants of the King are good and what not 266 267 c. VVhat things the King shall be said to be intitled unto and what not vid. Title L 1 Latitat The nature of a Latitat 156 C. 4. 2 Law Of what things the Law takes notice of and of what not p. 55. The Laws in Ireland the same with the Laws in England 386 C. 2. VVhat things are recoverable at the Common-law and what not vid. Recovery VVhere wager of Law lies and for whom and where not 199 C. 1. 322 C. 2. VVhat By-law is good and who it binds and who and what not vid. By-law 3 Legacy VVhere and in what orders Legacies are to be paid and where not p. 37 38. p. 54 55 56. 4 Lease From what time a Lease for years shall be said to begin 118 119 188 189 204 205. VVhat shall be said a good Lease at will and what not 397 C. 3. What shall be said a good Lease and what not 188 189 204 205 315 316 357 C. 1. 380 C. 1. 383. By what Acts a Lease at will may be determined or forfeited and by what not 363 C. 2. 446 C. 2. 5 Levari facias vid. Execution Where a Levari facias lies and of what and where not 69. 6 Licence Where one must shew a Licence for doing of a thing and where it needs not p. 65 C. 2. 156 C. 2. 166. What shall be said a good Licence and what not 156 C. 2. 7 Livery and Seisin What Livery and Seisin is good and what not 119 284 285 363 C. 2. 8 Limitation What shall be a good limitation of an Estate and what not 240 274 C. 2. 294 325 326. 9 Local and Transitory What Actions and things are local and what transitory p. 107 C. 2. M 1 Maintenance What shall be said Maintenance and what not 184. 2 Mandamus In what cases a writ of Mandamus lies and in what not p. 7 8 C. 3. 299 C. 4. 346 C. 2. 355 C. 1. 451 452 453 457. 458. 3 Manslaughter VVhat shall be said Manslaughter and what not 337. C. 1. 4 Mariage To whom the Mariage of persons belongs and to whom not 227 C. 4. 5 Melius inquirendum Where a Melius inquirendum lies and where not 461 C. 1. 4 Maxime Maximes of Law are not to be broken 149. 6 Merger Where a thing may be said to be merged in another thing 347 348. 7 Miscontinuance vid. Process 8 Monstrance del faits c. Where Deeds Letters Patents are to be produced in Court and where not p. 15 C. 2. 264. C. 1. 9 Motion What Motions are to be made in Court and what not 135 C. 3. 386 C. 5. What things the Court will take notice of upon a Motion and what not 177 C. 1. 373 C. 1. 387 C. 4. 464 C. 3. 10 Murther What shall be said Murther and what not 364 C. 1. N 1 Negative pregnans Where a plea conteynes a negative pregnans and where not p. 66 C. 2. 309 C. 1. 1 Ne exeat regnum Where a Ne exeat regnum lies and where not 395 396 440 c. 2 Nomine poenae The nature of a Nomine poenae and how it is to be demanded and recovered p. 4. 3 Non obstante How Non obstantes shall be taken to inure and how not 375 c. 4 Non-sute VVhere the party shall be non-sute and where not 238 C. 2. 449 C. 4. 5 Notice Where notice ought to be given of a thing and where it needs not and what is a good notice and what not p. 13 C. 1. p. 30 31. p. 53 C. 1. p. 57 C. 1. p. 61 C. 1. p. 74 C. 2. 100 C. 2. 172 C. 1. 184 C. 1. 187 263 C. 3. 273 C. 3. 295 C. 2. 303 C. 3. 213 214 342 C. 2. 386 C. 3. 458 C. 1. Of what Officers the Court of the Upper Bench will take notice of and of what not p. 26 C. 2. p. 54 C. 1. 90 C. 5. p. 98 456 457 458. Of what things the Court will take notice of and of what not and how p. 70 265 C. 2. 331 332 333 334 359 C. 1. 368 369 378 379. 6 Nudum pactum VVhat shall be said to be Nudum pactum and what not p. 58 C. 1. 249 C. 2. 330 C. 2. 7 Nusance For what an Assise of Nusance lies for what not 195 C. 1. O 1 Oath vid. Affidavit What Oath shall be said perjury what not vid. Perjury 2 Obligation How a breach of the Condition of an Obligation ought to be assigned p. 18 C. 1. What is a good Obligation what not p. 28 C. 1. p. 97 C. 1. 212 C. 3. 234 C. 2. 241 C. 2. 277 278 438 C. 2. 3 Offences VVhat are offences at the Common law what not p. 87 C. 1. 215 323 326 C. 1. 4 Office and Officers VVhat Office shall be well granted what not 266 267 c. What Offices and Officers the common-Common-law takes notice of and what not 338 C. 1. 394 C. 2. 457 458. VVhat Offices may be executed by a Deputy and what not 357 C. 1. 5 Order For what causes orders of Sessions and other orders may be quashed and for what not p. 14 C. 2. p. 85. C. 1. 130 C. 3. 154 C. 1 3 4. 168 C. 1. 173 174 184 185 191 192 207 C. 1. 283 C. 3. 362 C. 1. 368 C. 3. 386 C. 6. 399 C. 1. 475 C. 1. VVhere the Court will not quash erroneous orders 358 C.