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.
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
supposed to be done in fee and so seised did demise the same for years by deed to the Plaintiff reserving rent in which deed was a clause of reentry for non payment of the rent and afterwards made his last Will in writing and dyed by which will be gave the said land in qua c. to the Defendant and that after the rent was behind and that he for the non payment of the rent according to the Covenant in the deed by virtue of the clause of reentry did enter intot he lands which is the same breaking of the Fence and entry for which the Plaintiff brings his Action and demands Iudgement if the Plaintiff ought to have his Action To this Plea the Plaintiff demurs and shews for cause That it doth not shew that the lease made to the Plaintiff is a lease of the land in which the Trespasse is supposed to be done 2ly Licence The Defendant doth not shew that he did â—nter into the land by leave of the Executor which he ought to have done for though the land was devised to him by will yet he cannot enter into the land without leave of the Executor The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea. and Long. Mich. 23 Car. Banc. Reg. THe Plaintiff brought an Action upon the Case for these words spoken of him Arest of Iudgment in an action for words Long is a murtherer and hath bewitched my Child and was the death of my Child and obteins a verdict The Defendant moves in arrest of Iudgement and takes these exceptions to the Declaration 1. That it is not said that the Child was bewitched to death 2ly It doth not express whether the Child bewitched was born alive or not To this the Court said Felony that the bewitching of the Child is Felony though it do not dye by it And to the second exception That the Court doth not take notice of a Child if it be dead-born and they will intend it was born alive and Roll Iustice said that these words Thou didst kill my Masters Cook Averment have been adjudged actionable although the Plaintiff did not aver that his Master had a Cook Therefore let the Plaintiff take his Iudgement if better matter be not shewn Saturday next Carver against Pierce 23 Car. Banc. Reg. CArver brings an Action upon the Case against Pierce for speaking these words of him Arrest of Iudgement in an action for VVords Thou art a Thief for thou hast stollen my Dung and hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actioanble for it is not certain whether the Dung be a Chattel or part of the Free-hold and if so it cannot be Theft to take it but a Tresspass and then the Action will not lye Chattel Bacon Iustice Dung is a Chattel and may be stollen But Roll Iustice answered Dung may be a Chattel and it may not be a Chattel for a heap of Dung is a Chattel but if it be spread upon the Land it is not and said the word Thief here is actionable alone Felony and there are no subsequent words to mitigate the former words for the stealing of Dung is Felony if it be a Chattel Bacon Iustice said It doth not appear in this Case of what value the Dung was and how shall it then be known whether it be Felony or pety Larceny To this Roll answered the words are scandalous notwithstanding and actionable though the stealing of the Dung be not Felony The rule was to move it again Tuesday next Mich. 23. Car. Banc. Reg. A Writ of Error was brought in this Court to reverse a Iudgement given in the Marshals Court Error to reverse a Iudgment for discontinuance in the Process Discontinuance and the exception taken was that there was a dicontinuance in the process and so there ought to have been no Iudgement and therefore the Iudgement given is erroneous and that there was a Discontinuance it thus appears The Continuance was ad proximam Curiam and it appears upon the retorn of the Venire facias that that was no Court day for it was the three and twentyeth day of the Month whereas Friday on which day the Court was held was not the 23 day and so there is Error in the continuance Roll Iustice said the former Continuance was to the 9th day and from thence to the 15th and that is but six daies and so wants of the time Iudgement Bacon Iustice Where there is a Discontinuance the Court hath no power to give Iudgement and so the Iudgement is here erroneous and therefore let it be reversed nisi causa c. Mich. 23 Car. Banc. Reg. LEssee for years of Lands by Deed Demurrer to a Plea in an action of Covenant brings an Action of Covenant against the Lessor and declares that the Lessor had covenanted that he should peaceably and quietly enjoy the Lands let during the Term and that a Stranger entred upon him and ousted him within the Term. To this Declaration the Defedant demurs Roll Iustice said that the Covenant in this Case is broken though it be a Stranger that entered and ousted the Lessee Walker of Councel with the Defendant took this difference where a Stranger enters upon the Lessee and doth a Trespass and where he enters and outs the Lessee in the former Case he said Covenant the Covenant is not broken but in latter it is broken Iudgement was given for the Plaintiff except cause should be shewn Monday next Thynn against Thynn Mich. 23 Car. Banc. Reg. Hill 23 Car. rot 1658. THynn brought an Action of Dower against Thynn Error to reverse a Iudgement in Dower Return Proclamation and hath a Iudgement by default and thereupon a Writ of Enquiry issued out to the Sheriff who delivered seisin of the Dower recovered and returned the Writ upon this Iudgement The Defendant brings a Writ of Error and assigns these Errors in the Record 1. The original Writ appears not to be returned according to the Statute for the year doth not appear when it was returned 2ly The Proclamation made by the Sheriff appears not to be where the Land lyes 3ly Summons The return doth not mention that the Proclamation was after the Summons as it ought to be as it is Hob. Reports in Allens Case 4ly It is not said that he did make Proclamation upon the Land 5ly It appears not that the Proclamation was in the Parish where the Summons was as the Statute directs To these exceptions Hales of Councel on the other side answered To the first Return that the retorn of the original Writ shall be intended to be in the year of the Reign and not of the Age of the King though the word Reign be omitted To the second the Lands lye in divers Parishes and Proclamation at the Church of any of the Parishes is good
Reg. MEmorandum on Wednesday the 14 of November 1648 Henry Roll Serjeant at law then one of the Iustices of this Bench took his place in Court as Lord chief Iustice of England and Twisden moved for a day to plead between Dunch and Smith being the first motion that was made in Court after he took his place The Lord chief Iustice Roll first took his place Popham against Hunt Mich. 24 Car. Banc. Reg Mich. 23 Car. rot 558. POpham brings an Action of Covenant upon an Indenture against Hunt Demurrer to a Declaration in an action of Covenant the Defendant demurs to the Declaration and the Plaintiff joyns in the Demurrer Vpon the pleading the Case appeared to be this a Feme sole delivers a certain sum of mony into the hands of I. S. and the Defendant thereupon Covenants with the Feme to pay unto A. B. 100 l. a yeer so long as the mony should continue in the hands of I. S. The Feme takes Baron The hundred pound per annum is arrere The Baron makes his Executor and dyes and after his death the 100 l. a yeer is behind also Popham the Executor brings this Action of Covenant Covenant and the question was whether the Action was well brought and the Court held the Action did lye for the Covenant doth concern the Executor because he represents the Testator but the question here is whether the rent due after the death of the Husband ought to be paid and how it shall be known whether he be dead for it is not specially alleged and if he be not dead there is no cause of Action Therefore consider of this Bragg against Nightingall Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 601. BRagg brought an Action of Covenant against Nightingall upon an Indenture Demurrer to a Declaration in an action of covenant The Defendant demurs to the Declaration The Case was this The Plaintiff let by Indenture certain houses for divers years to the Defendant and covenanted with him to repair the houses by such a day expressed in the Indenture The Defendant by the same Indenture covenanted with the Plaintiff that from the time that the Plaintiff was to repair the houses unto the end of the Term for which they were demised he would well sufficiently repair and leave them so repaired at the end of the Term for not performing of this Covenant on the Defendants part the Plaintiff brought his Action The cause shewed for the demurrer to the Declaration was that the Plaintiff had not shewed that he on his part had repaired the houses according to his Covenant and so the Defendant supposed he was not bound to repair because he was to repair from the time the Plaintiff had repaired them and not before and so there is no cause of Action After divers motions Roll chief Iustice said That here was a reciprocal Covenant to be performed on each part Covenant and although one do not perform the Covenant on his part this doth not excuse the other party but he is tyed to perform his Covenant neverthelesse and if he do not an Action lyes against him and he may bring his Action also against the other that first broke his Covenant and therefore the Action lyes here against the Defendant and so the demurrer is not good upon the cause shewed But if this were not a reciprocal Covenant the Law would be otherwise and cited Hayes and Hayes Case 11 Car. and Skippon and Lucas his case 10 Car. But Bacon Iustice held the contrary that the demurrer was good for that it appears that it was the intent of both partyes that the Plaintiff should first repair and after that the Defendant should keep the houses in repair The Court would advise Smithson against VVells Mich. 24 Car. Banc. Reg. SMithson brought an Action upon the Case upon a promise against Wells A special verdict in an action upon the Case upon a promise and declared upon a promise made to save the Plaintiff harmlesse from such an obligation when he should be thereunto required The Defendant pleaded non Assumpsit and upon this a special verdict was found viz. generally that the Defendant did make promise to save the Plaintiff harmlesse from the Obligation that he had not done it The question hereupon was whether the verdict had found the same promise set forth in the Declaration because that was to save harmlesse upon request Verdict but the promise in the verdict mentions no request to be made but finds a promise generally to save one harmlesse The Court held that the Plaintiff ought to have Iudgment for that it was the same promise found in the verdict which was set forth in the Declaration for if one promise to save one harmlesse from a thing he that made the promise ought to do it at his perill without request Request Covenant and the request is not material although the promise say upon request But if he be damnified if I do recompence him upon request made the Covenant is not broken Emerson against Ridley Mich. 24 Car. Banc. Reg. Pasc 24 Car. rot 400. RIdley brought an Action of Debt upon an Obligation against Emerson Error upon a Iudgement in Debt upon an Obligation The Condition of the Obligation was that the Defendant should not put his Cattel upon such a Common before a tryal and proof for the Common should be for the Commoners and assigns a breach that he did put on his Cattel upon the Common before the Tryal for the Commoners upon this an Issue was joyned and a verdict and a Iudgement for the Plaintiff The Defendant brings a Writ of Error and assigns for Error that the breach of the Condition assigned doth not agree with the Condition of the Obligation and so the action being brought upon the Obligation and no breach of the Condition being rightly assigned there appears no cause of Action and so the Iudgement is erroneous But it was said by the Councel with the Defendant that tryal and proof of a matter in common intendment is all one Intendment and so the difference alleged was only verbal and not real and it shall be taken to be a breach of the Condition and so there is good cause of Action and the Iudgement thereupon given is well enough Holhead on Councel on the other side denyed it to be all one in sense for that a Tryal may be and yet the Title may not not proved and there may be a Iudgement upon a Nihil dicit where is nothing proved and so concluded the Writ of Error did lye The Court desired to have Books Postea Jones against Iacob 24 Car. Banc. Reg. IOnes a Citizen and Pewterer of London Iudgement in an action upon the Case brought an Action upon the Case against Iacob for these words spoken of him He is gone and doth hide himself for debt and for ought I know he is a Banckrupt The Plaintiff had
really a Copyholder and cited Shellyes case and prayed Iudgement for the Defendant Roll chief Iustice said This Case differs from surrendring into the hands of Tenants for it is into the hands of the Steward out of Court Surrend Admission which is good and the Lords acceptance of his rent is an admission But Bacon doubted and therefore the rule was for the Case to be argued again the next Term and then by reason of sicknesse I was absent But that Term held not by reason of the Kings death Dunch against Smith Mich. 24 Car. Banc. Reg. DUnch brought an Action of Debt as Executor for arrerages of a rent charge due to the Testator against Dunch Arrest of Iudgement in Debt brought by an Executor an occupyer of the land out of which the rent was issuing and hath a verdict The Defendant moved in arrest of Iudgement and for Cause shewed that the Plaintiff doth not shew any title that the Defendant hath in the Land but only sayes generally that he entred into the Lands and so it appears not that he is to pay the rent To this the Councel on the other side answered that the Plaintiff being but an Executor cannot know the title and therefore is not bound to shew it Roll chief Iustice said there can be no Iudgement for the Declaration is too generall But Bacon Iustice held the Declaration good enough Antea Brown against Poyns Mich. 24 Car. Banc. Reg. THe Case was this a man made his last Will and made two Executors For a prohibition to repeal an administration Prohibition Appeal the Executors dye in the life of the Testator the Testator dyes having two Sisters the eldest Sister procures Administration the younger Sister moves for a Prohibition to repeal the Administration because she being in equal degree of king ought to have equall share of the Administration But the Court answered that a prohibition lies not for you may appeal if the Administration be not rightly granted Mich. 24 Car. Banc. Reg. A Processe issued out of this Court for a Cart and Horses that were cause of a mans death as a deodand 12. Iac. To stay processe for a deodand and it was moved that there hath been a generall pardon by Parliament since that time by which deodands were pardoned and therefore it was prayed the processe might be stayed General pardon The Court asked whether there be not an exception of deodands or the Almoners interest in the pardon The Councell answered there is not The Court demanded by what words in the pardon are deodands pardoned The Councel answered by the generall words The Court ordered thereupon it should be stayed till the Almoner be heard what he can say Mich. 24 Car. Banc. Reg. THe Court was moved for a habeas Corpus for one that was taken in Execution by the Sheriff and was afterwards set at liberty For a habeas corpus for one taken upon one Execution Audita querela and after that retaken upon the same Execution The Court answered take it but you are in the wrong way for you ought to bring your audita querela The King against Bray Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry made upon a Lessee for years upon the Statute of 21 Iac. To quash an Endictment of forcible entry The exceptions taken to it were 1. It doth not appear by the Endictment that the Lessee had any title to the Land at the time of the force committed for the force is supposed to be done before the lease commenced 2ly The lease is supposed to be a lease for so many years if I. S. shall so long live and it is not averred that I. S. was alive at the time of the forcible entry made Averment Roll chief Iustice cited the Lady Morlyes case that there ought to be a direct allegation of the life Therefore let it be quashed Mich. 24. Car. Banc. Reg. THe Court was moved to quash an Endictment of Assault and Battery of an overseer of the poor villae de A. in executing of his office The exceptions taken to it were To quash an Endictment for assaulting a Collector for the poor 1. That there is no such officer as an overseer of the poor villae but it ought to be parochiae but the Court said it was well enough as it was though it had been more proper the other way 2ly The Endictment is for the Assaulting and beating a Collector for the poor in executing his office whereas there is no such office appointed for any one particular man by the Law for the Statute is that there shall be two Collectors for the poor in every Parish and so the office is joynt and not several But the Court over-ruled this exception also 3ly It wants vi et Armis Vpon this exception the Court bid the Councel move it again Gill against Crosse Mich. 24 Car. Banc. Reg. THe Plaintiff brought an Action of Debt against two as Administrators upon fully administred pleaded issue was ioyned Speciall verdict in Debt against Executors and a speciall verdict was found to this effect viz. that one of the Administrators had fully administred and that the other Administrator had assets It was urged against the Verdict that the issue that was found is impertinent and impossible Verdict Iudgement and so there can be no judgement given upon it But the Court answered that the verdict is good yet if Iudgement should be given upon it the Iudgement would be ill and Nevills and Greenwoods case Hill 7. Car. in the Exchequer rot 1189. was cited and it was said that Iudgement may be against that Executor who hath assets and nil capiat per billam against the other that hath fully administred But take Iudgement at your peril Preston against Holmes Mich. 24 Car. Banc. Reg. Trin. or Mich. 24 Car. rot 2052. VPon a special verdict found the Case in effect was this Arguments upon a special verdict upon a Will one in see having one Son by one venter and another Son by a second venter did by his last Will devise all his Lands to his wise for life and after her death to I. his eldest Son and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law and so the devise to be of no effect to make him come to the Lands by purchase Christopher Turner held that the devise is void because it sayes no more than the Law says for if there had been no such devise Iohn his Heirs should have had the Land and he cited Paramour and Yardlves Case in the Comentaries and Hob. rep Counden and Clarks case But it is objected that in this case the Law speaks one thing and the devise another thing and so the devise says not the same thing To this I answer there is no difference concerning the alteration of the Estate
Iustice held that a Bond given to appear upon an Attatchment out of the Chancery is within the Statute but it hath been heretofore a question whether a Serjeant at Arms of Wales were within the Statute but it hath been since ruled that he is not and here is a material variance in the Bond which makes it void and neither the upper Bench nor the Chancery are fixt Courts Obligation and therefore the Defendant ought not to be bound precisely to appear at VVestminster and then to add ubicumque fuerit is a material variance Chancery Variance and makes the Bond naught Ierman Iustice to the same effect and said that the Chancery may sit at any time out of the Term when they please and their not sitting in the Vacations is for the ease and conveniency of the people Nil capiat per billamn si c. Antea Paine against Prestny Mich. 1650. Banc. sup PAine brought an Action upon the case against Prestny Arrest of judgement in an action for words for speaking these words to a Constable of him Take charge of him and carry him away for I lay flat Felony to him and for speaking these words to the Plaintiff himself I will make you hold up you hand at the Bar upon not guilty pleaded an issue was joyned and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the words are not actionable but the Court held them cléerly actionable and ruled the Plaintiff to take his Iudgement except other cause were shewed to the contrary Friday following Popham against VVhite Mich. 1650. Banc. sup VPon a verdict found for the Plaintiff in a Trover Conversion Arrest of judgement in a Trover and Conversion the Defendant in Arrest of Iudgment took exception to the Declaration because the Plaintiff had declared of a Trover Conversion de decem arboribus wheras the trees were Tymber trees that were felled so they are not well expressed for the word arbor properly signifies a tree that grows and not one cut down according to the old verse Arbor dum crescit lignum dum crescere nescit and so a Trover cannot be brought pro arbore But Roll chief Iustice said that they were well enough expressed by the Declaration Declaration Description and that they ought not to be too strict in scanning some words where the thing is well described Goffs Case Mich. 1650. Banc. sup CLement Goff of Greenwitch in Kent A pardon for Felony pleaded and allowed arraigned of felony at Maidstone in Kent and there condemned was brought to this Bar and there it was demanded of him by the Clark on the criminal side what he could say why he should not suffer death according to his Iudgement whereupon the Prisoner pleaded he had a pardon and produced it and it was read openly the Prisoner kneeling on his keees in the mean time after reading of it he was asked what it was he demanded besides of the Court he answered that he prayed his pardon might be allowed which after Ierman Iustice had made a grave speech to exhort him to a better carriage for the future was done accordingly VVood against Topham Mich. 1650. Banc. sup THe case between VVood and Topham being an Action of Trespasse Arrest of judgement in trespass quare filium et heredem rapuit maritavit quare filium et heredem suum rapuit et maritavit was again spoken unto and in arrest of Iudgement Green took these exceptions to the Declaration 1. That it is too short because that after the words quare filium suum heredem rapuit maritavit there ought to have been added cujus maritagium ad ipsum pertinet for else it appears not that the Plaintiff hath cause of Action Instit f. 20. 35 El. Child and Towrs case Banc. Reg. 2ly The Declaration doth not say filium suum apparentem which it ought to do because the Father is alive 3ly It doth not expresse the Heir to be infra aetatem 4ly It doth not say the Heir is in custodia sua 5ly It doth not shew that the Heir was not married before 6ly It doth not shew that the Plaintiffs Father is dead 12 H. 4. f. 16. Broo◠Tit. Trespasse 101 Nat. brev 142. Reg. 163 Nat. Brev. 140. 20 H. 6. f. 44. And he said that a Declaration ought to be certain but that here was no certainty by reason of the former exceptions Declaration Trespass VVilmot on the other side said the Declaration was certain enough and according to the presidents and cited the Register f. 88 89. ◠rep Ratcliffs case Roll chief Iustice said It is a Trespasse to take away a mans Son and Heir although he be not within age but if it be another Son it is not so Nicholas Iustice to the same effect But because the Court was not full in regard that the damages given by the Iury were excessive the Court deferred to give Iudgement that time and perswaded the Plaintiffs councell to go to a new new try all Antea et Postea Marshall against Ledsham Mich. 1650. Banc. sup MArshall brought an Action of Debt as an Administrator against Ledsham Arrest of judgement in debt by an Administator and obteins a verdict against the Defendant It was moved for the Defendant in arrest of Iudgement That the Plaintiff had not shewed in his Declaration by whom the Letters of Administration were granted unto him as he ought to do according to the books of 26 H. 6.29 35 H. 6. The Court answered that he ought to have set it forth and therefore the Plaintiff might have demurred to the Declaration but it now being after a verdict Demurrer the question is Whether that fault be not helped by it And therefore they would advise Postea VVats and his wife against Lord. Mich. 1650. Banc. sup VVAts and his wife brought an Action of Trespasse of an Assault and Battery against Lord Arrest of judgement in an Assault and Battery and obtein a verdict The Defendant moved in arrest of Iudgement That the Declaration was by the Baron and Feme for an Assault and Battery made to the Feme and they also declare that the Defendant alia enormia eis intulit which ought not to be for the wrong being but a personal wrong done to the person of the Feme only could not be said to be done to the Husband To which Roll chief Iustice agreed Fairefax against Fairfax Mich. 1650. Banc. sup IN a writ of Error brought to reverse a Iudgement given in a writ of Dowr these exceptions were taken Error to reverse a judgment in down 1. That the original was not well returned for their appears not to be any return of the Proclamation of the summons and though the party do appear yet it was said that it is not helped thereby 2ly The demand is incertain for the demand is de tertia parte decimarum garbarum
Court Twisden on the other side confessed the Books were so but here the Battery is not apparent and the wound is internal and not to be viewed by the Court. Roll chief Iustice said 3 things are considerable 1. whether the Court can increase the damages 2ly Whether the wound be apparent and 3ly Whether the damages given be too small The Court upon view of the party and examination of Chirurgions and Witnesses on both sides upon Oath did conclude that they might increase the damages and that the wound was apparent and that the damages were too small and therefore they increased them to 400 l. and said they would not encrease them more because they could not inquire into all the circumstances of the fact as the jury might but they thought fitting to encrease them in some proportion because the offence was great and such outragious Acts are not to be slightly punished VVallis against Bucknal Hill 1651. Banc. sup VPon a special verdict found in an Ejectione firmae the case sell out to be this Special Verdict in an Ejectione firmse A Copyholder of inheritance made a Letter of Attorney to two joyntly and severally to surrender his Copyhold lands in Fee to certain uses after his death according to the Custom of the Manor The question made by Ellis of Councel with the Plaintif was whether the Custom was good or not he argued that it was not a good Custom In Sir Iohn Davis Reports it is said a Custom must be reasonable and a Custom may be reasonable when it is but against a particular Law and not a general Law but the Custom here thus to convey land is against a general Law Particular Customs may be against publique interest pro bono public but if they be not as in our case they are not they are not good Pro bono publico Next an authority given ought to be Countermandable and to determine at the death of the party but this is not so and therefore it is no good authority 19 E. 3. f. 5. 2ly None can give an authority to another to do a thing which he could not do himself but here it is otherwise and therefore it is not a good authority 3ly By the death of the Copyholder the lands are setled in the heir and this authority given shall not devest them and this is not like the surrendring of lands into the hands of the Lord for a surrender cannot be revoked but this authority is revokable Next the Verdict doth not find that the 2 Attorneys are Customary tenants but only by way of recital which is not good nor doth it appear they were customary tenants at the time of the admittance and here is not found any possession or title in the Defendant and so the Plaintif having primer possession the Defendant is guilty neither is it found that the customary Tenant had see-simple in the land And if he had but an estate for life he could not make such a letter of Attorney Also the authority given is not warranted by the Custom set forth Wilmot of Councel with the Defendant said That this authority here is supported with a special direction which may survive the party that gives it 1 H. 7.8 And an authority may survive the party that gives it else how can an Executor sell lands by the authority given unto him 21 E. 4. f. 8. 31. E. 1. Fitzherb 45. and as for the heir he hath neglected his advantage it he had any and cannot now take it But besides the authority here given is more than a bare authority for it is backed with circumstances of time and person and here is also a Custom to support it and this Custom is a reasonable Custom for it is but to enable a man to dispose of his own lands and there are far more unreasonable Customs than this allowed in our law as the Custom of Kent for one of the age of 15 years to be enabled to sell his lands and this Custom is not against any positive rule of Law for the custom is to create the authority to begin after his death and so it is not to determine by his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and it is extended but within a small compass of land and so cannot be very prejudicial to the publique And Bambridge and Whaddons case 17 Car. in this Court cited on the other side doth differ from this case for tâ—ere was no Custom to support it And it doth appear here by the Record that Dalby the Attorney is a customary Tenant and the admission here is found to be secundum consuetudinem Manerii And one cannot gain a Copyhold estate by disseisin and so here can be no primer seisin intended and it is found the Copyholder is seised Roll chief Iustice said It will be hard to maintain the Custom Custom if it be not found that the party was seiâ—â—d in see of the Copyhold lands But 2ly it is not here found that the land is demisable according to the will of the Lord and so it may be free land then the custom doth not reach it Neither is it found that the 2 Attorneys were Copyhold Tenants and the primer possession here will make a disseisin by the Defendant if the Custom be not well found and then it is for the Plaintif and I cannot see how the Custom can be good it being against the rules of Law for a man cannot devise a Copyhold and here the case is worse Devise but he may surrender to the use of his last Will and Testament At another day Wilmot to the Exception taken That it is not found that the two Attorneys were Tenants of the Manor said there is so much found as shall make them be presumed to be Tenants of the Manor for it is found that the party is admitted secundum consuetudinem Manerii which cannot be a good admittance if they were not Tenants Roll chief Iustice answered to be admitted secundum consuetudinem goes â—o the Admittance not to the Letter of Attorney But we will advise At another day Twisden prayed judgement for the Plaintif and insisted upon the Exception that the two Attorneys were not found customary Tenants for one of them is not mentioned at all and the other is found so only by way of recital and so they have not entitled themselves to the Custom and then the Defendant hath no title The Court ruled to shew cause Saturday following why the Plaintif should not have judgement Antea Custodes against Tawny and Norwood Hill 1651. Banc. sup TAwny and Norwood were jointly endicted for blasphemous words severally spoken by them Endictment for speaking blasphemous words upon the late Statute made against blasphemy and were convicted the parties being removed hither by Habeas Corpus It was urged that the Endictment was not good because it was joynt whereas the words being
Statute of 13 R. 2. C. 9. which is a generall Law and ought to be taken notice of but if not yet the Action is well brought for it is brought for the vexation the Plaintiff was put unto by reason of the presentment and the other matter alleged is but by way of inducement to the Action 2. Car. in Deâ—t and Oâ—ifes case in this court so held and though the conservators had no authority yet the Action lies for the malitious prosecution and for unjustly vexing him and so adjudged Trin. 16 Car. in this Court in Damon and Sheremans case Hales on the other side said that this Court is not bound to take notice that the Lord Maior of London hath this jurisdiction of conservatorship for the Statute which gave it him is a particular Law touching him only and so not to be taken notice of without it be shewn and then if he have no such authority all the proceedings against the Plaintiff are void Roll chief Iustice An Action upon the case lies for bringing an appeal against one in the Common Pleas though it be coram non judice Case by reason of the vexation of the party and so it is all one whether here were any jurisdiction or no for the Plaintiff is prejudiced by the vexation and the conservators took upon them to have authority to take the presentment And I hold that an Action upon the case will lye for maliciously bringing an Action against one where he had no probable cause and if such Actions were used to be brought it would deter men from such malitious courses as are to often put in practice Sherecroft and Weekes Trin. 1953. Banc. sup SHerecrost brought an Action upon the case against Weeks Arrest of Iudgement in an Action for words for speaking these words of him He meaning the Plaintiff got Mary Nab with Child and the Child is his and I have tryed it with a sieve and a pair of sheeres It was moved in arrest of Iudgement that the latter words are insensible and so the Action not maintainable to which it was answered that the first words are Actionable it matters not though the latter words be nonsence because they have no reference to the former words and therefore shall be rejected as sencelesse But Serjeant Barnard on the other side said the latter words do take off the force of the former words as the case is 4. rep f. 19. 2ly It is not said here when he got her with Child Nor 3ly Doth he aver that there was any such person as Mary Nab. Roll chief Iustice Case The Action doth well lye for the former words are positive scandalous words and the subsequent words are not material and if they be then they are in confirmation of the former for it seems he put confidence in the sieve and the sheeres and that made him speak the words and it matters not whether his confidence be true or false Therefore Iudicium nisi pro Querente VVeldon and Strudder Trin. 1653. Banc. sup IT was moved to the Court that the Plaintiff after he had obteyned a verdict and before Iudgement entred dyed Motion to enter the death of the Plaintiff on the Roll. and prayed that this might be entred upon the Roll but the Court denyed it and said it could not be VVhitehead and Buckland Trin. 1653. Banc. sup THe case of Whitehead and Buckland was again spoken unto Demurrer to a replication in Trespass by Original which was this Whitehead brought an Action of Trespasse by original writ for taking his Cattel the Defendant pleaded the Statute of limitations of Actions in Bar the Plaintiff replies that he took forth an original writ against the Defendant for this Trespass within the time limited by the Statute and upon this replication the Defendant demurred and for cause shews that he doth not shew what writ he sued forth as he ought to do otherwise it cannot be known whether he be rightly thereby intituled to his Action or no. 2ly He hath not shewed the continuances upon his proceedings and so it cannot be known whether his Action be discontinued or no that if it be we may take advantage thereof 3ly He doth not say that he hath taken out an Original prout apparet per Recordum as he ought to do for we do not agree the writ that he pleads he hath taken out 4ly He hath concluded his plea so that it amounts to a new assignment and hinders us from objecting against it by way of rejoynder and he joyns an issue of his own head of a matter not alleged before and 5ly The Action is for a Trespass done in 1645. and yet he concludes it to be contra pacem publicam which being in the late Kings time could not be but ought to have been contra coronam et dignitatem nostram Latch on the other side said that both parties agree to the Original and the disagreement is only in the time of the execution thereof and it is not necessary to say prout patet per recordum nor is it necessary to shew the continuances of the process for this would make the Record too long and here is no hinderance but they may rejoyn if they have cause Pâ—â—a Error Roll chief Iustice As to the first Exception it is not necessary to set forth the particulars of the writ and if the writ be not good you may have a writ of Error and for the second exception the plea is good without shewing the continuances and there is no inconvenience by not setting them forth and we will intend that all is rightly done because you have appeared and you are not hindred from replying but may do it if you will and have cause and the Record here shews that you have appeared to this writ but it is not good to conclude the plea super totam materiam as you have done for by this he is hindred from replying and then he hath good cause to demur because you have concluded him and what say you to that Latch The party may strike out the words Et querens similiter Roll chief Iustice He cannot strike out that which belongs not to him Replication Demurrer and you cannot go back and the other is compelled to demur Therefore Nil capiat per Billam nisi c. or waive the Demurrer Postea Trin. 1652. Banc. sup IT was said in the case of Homes and Bingley Who may make a lease to try a title that Tenant at will may make a lease for years to try a title of land and so may a Copy-holder Q. Trin. 1652. Banc. sup BY Roll chief Iustice What plea an Attorney may plead without a special warrant An Attorney who hath warrant to appear for his Clyent may plead for him without warrant But the Clarks in Court said he may plead no other plea without a special warrant but a non sum informatus ideo Q. Peck and Ewre Trin. 1653.
insufficient neither doth his contracting with him for money to execute the place for him any ways concern the corporation nor is it malum in se but is only punishable by the Statute of 5 Ed. 6. and as to the not trying of the issues joyned in that Court at the days they were to he tried upon this is no cause to deprive him of his place which is a freehold Freehold for few Stewards of Corporations do otherwise than he hath done for they usually stay till they have a competent number of causes to try before they will sit to try them and there appears to be but 5 causes untryed which is no great number neither doth it appear that be had any notice that these five were ready for tryal Notice and so here cannot be so great an offence as is supposed and he cited Semaigns case Rep. â—3 nor doth it appear that any tryal was disappointed by his absence for it appears not that any issue was ioyned in any of the causes or any warning given for tryal during the time that is surmised for him to neglect to fit in Court And besides though these were sufficient crimes for to deprive him of his place yet they have not proceeded against him in a legal way Illegal proceeding Defence for he was never called to answer the crimes objected against him but is deprived without hearing his defence which is illegal as Sir Iames Baggs case is Roll chief Iustice he ought to be heard what he could say for himself else how could it be known whether there were just cause to remove him or no and it is very hard to deprive one of his freehold without hearing him At another day Serjeant Twisden moved the Court for their opinion whether Bernardiston ought to be restored or no and answered the exceptions formerly taken much to the effect as Latch had done Whereupon Roll chief Iustice said you ought to have convented him before you put him out to hear what excuse he could make for his absence otherwise how could you know whether he had just cause or not for his absence Restored nisi c. Therefore let him be restored except cause be shewed to the contrary Saturday next Postea Edwards and Stiff Pasch 1655. Banc sup MEmorandum Tryal in Trespass and Ejectment Jury suffered to drink at the Bar. Vpon a tryal at the Bar in a Trespass and Ejectment between Edwards Plaintif and Stiff Defendant the evidence being long and the Weathet hot the Jury desired they might have drink which the Court granted but said they should have it at the Bar whereupon drink was sent for for them and they drunk it there before they went out to consider of the evidence Roll chief Iustice did then reprove the Attorneys and Sollicitors for the great charges they used to put their Clyents to in feasting the Jury Feasting of Iuries and ordered that thenceforth no more thon 3 s. 4 d. should be allowed to any Iuryman to pay for his dinner Nota. Pasch 1655. Banc. sup VPon an Affidavit read in Court For a new tryal Death of a Witness that a material witnesse in the cause that was served with a subpoena to give his testimony at the tryal and dyed before the tryal The Court was moved on the Defendants part for a new tryal but the Plaintif opposed it much insisting upon this that there was no miscarriage on his part Whereupon Roll chief Iustice answered here is the Act of God in the Case Act of God which cannot be resisted and this tryal is final to the Defendant Therefore if the Plaintif will not consent to take his costs New tryal paying costs and goe to a new tryal we will not be hasty to give judgement but will advise upon it The Protector and Gunter Pasch 1655. Banc. sup THe Court was moved to quash two Endictments for continuing of purprestines in the high way To quash two Endictments and it was urged by the Councel that there were 4 Endictments preferred against his Clyent two for erecting the purprestures and the other two for the continuing of them and upon a tryal we were found not guilty of the erecting them and therefore we cannot be guilty of the continuing of them and he took this exception to the caption of the Endictments viz. That it is said that the Endictments were preferred at the Sessions held at East Grinsteed in the County of Sussex where it ought to have been at the Sessions of the Peace held at East-Grinsteed for the County of Sussex Roll chief Iustice answered You may be guilty for continuing of that which another did erect and not you but if the erecting and continuance be mentioned in one and the same Endictment you cannot be guilty Denied But plead to them for no such thing appears in the Record but only that you kept the Highway stopped but says not who stopped it Pasch 1655. Banc. sup THe Court was moved to quash an Endictment grounded upon the Statute of 5 Eliz. preferred against one for using the Trade of a Draper To quash an Endictment not having served as an Apprentise in that Trade according to the Statute upon these 2 Exceptions 1. It is said he used the Trade in the year 1653. and doth not say the year of our Lord. 2ly It is not said that the Iury was returned nor whence they were and both exceptions were held good by Roll chief Iustice and the Endictment was thereupon quashed Quashed Pasch 1655. Banc. sup THe Court was moved to quash an Endictment against one Peers To quash an Endictment upon the Ordinance against Duels for speaking provoking language to one contrary to the late Ordinance of the Lord Protector and his Councel upon these Exceptions 1. It is said the Endictment was at the Sessions held at A. and doth not say in what County 2ly It is said by an Ordinance of the Protector made such a day and doth not say in that case provided Quashed And upon these Exceptions it was quashed Pasch 1655. Banc. sup THe Court was moved for a tales to a Northumberland Iury returnable this Term because but 8 of the panel returned did appear For a tales But Roll chief Iustice answered Take it returnable in Michaelmas Term next Return of a tales but this Term you cannot have it VValdron and VVard Pasch 1654. Banc sup IN a tryal at the bar between Waldron Plaintif and Ward Defendant Tryal at Bar. A Counceller at the Bar examined as a witnesse One Mr. Conye a Counceller at the Bar was examined upon his Oath to prove the death of Sir Thomas Conye Whereupon Serjeant Maynard urged to have him examined on the other part as a witness in some matters whereof he had béen made privy as of Counsel in the cause But Roll chief Iustice answered He is not bound to make answer for things which may disclose the