had but if it may not be had that then he recover Dammages for the thing Hill 22. Car. B. r. viz. Dammages to the full value of the thing it self and also for the detaining of it Wheresoever the Defendant is upon the Judgement to be fined to the King there the Judgement is to be with a Capiatur but where he is not to be fined there the Judgement shall be that the Defendant be in Misericordia Hill 22. Car. B. r. Though a Judgement be legally signed yet if it be never entred it is no Judgement Hill 22. Car. B. r. For every Judgement must be matter of Record but before the Entry it is not so By the course of the Common Pleas a Surety that is bound with one in an Obligation may plead for the principle to an Action brought upon this Obligation and acknowledge a Judgement against him But this seems very hard and this Court will not admit of such practice Pasc 23. Car. B. r. It is said that now the Common Pleas will not suffer it but do agree in their practice in this point with this Court The Defendant hath all the Term wherein a Judgement was given against him to speak any thing to arrest it For the Judgement is all the Term wherein it was given in the breast of the Judges either to make it a Judgment or not although it be entred upon Record Pasc 23. Car. and 24. Car. B. r. Yet the Plaintiff may take out Execution if nothing be spoken to arrest the Judgment in four dayes after the Postea is brought into Court any time after that in the same Term. A Judgement may be entred as to part of an Issue and a Nolle prosequi may be entred as to another part of it Pasc 23. Car. B. r. When at a Tryal the Defendant is called which is used to be done three times distinctly by the Crier of the Court and he do not appear Judgement shall be taken against him by default Pasc 23. Car. B. r. That is for not appearing to make his Defence For the Law will presume he is guilty and hath no Defence to make If Judgement be given for more then the Plaintiff doth demand in his Declaration this Judgement is erroneous Pasc 23. Car. B. r. For to give one more then is his due is as equal injustice as to deny any one that which is his due And it shall be presumed that the Plaintiff best knows what is his due and will demand it to the full If an Action of the Case be brought against one for speaking of divers distinct scandalous words of another and the Dammages are laid severally for them viz. so much Dammages for speaking of such of the words and so much Damages for the speaking of such other of the words there Judgement may be given for speaking of such of the words as the Plaintiff was damnified by and not for the other words by which he was not damnified But if the Dammages be laid entire for speaking of all the words and some of the words be not actionable so that Dammages cannot be given upon all the words there shall be no Judgement or Dammages given for any of them For the Court cannot proportion the Dammages Judgements given in inferiour Courts must be entred Idea consideratum est per curiam in words at length and not Ideo consideratum est c. as the use is in the Courts at Westminster for if they do not they are erroneous there though it be not so in the Courts at Westminster Trin. 23. Car. B. r. For inferiour COurts are tied strictly to observe their ancient forms and not to vary from them For if they should be permitted many inconveniencies would quickly follow by the unskilfulness of the Clarks Although the Plaintiff have signed his Judgement against the Defendant yet he may wave it if he will and accept of a Plea from the Defendant Trin. 23. Car. B. r. and 24. Car. B. r. For the signing of it doth not make it a Record of the Court but if it were entred he could not wave it A special Judgement is where one brings an action for divers things as for example A man brings an Ejectione firmae pro tofto crofto c. and the Plaintiff hath a Judgement for one or more of the things for which the Action is brought and doth wave some one or more of the other things for which the Action is brought in such case he must release his Damages to all and yet he may have his Costs of Suit Trin. 23. Car. B. r. If a Verdict pass for the Plaintiff and the Plaintiff will not enter his Judgement upon this Verdict the Defendant may enter it and so it is of a Writ of Enquiry of Dammages Trin. 22. Car. B. S. If the Plaintiff will not file it the Defendant may do it For the Plaintiff ought to be content with what the Law gives him If a Clark of this Court will not appear to an Action that is brought here against him the Plaintiff may enter Judgement against him By Woodward Clark of the Court Trin. 23. Car. B. r. But Q. What Judgement whether a Judgement upon a nihil dicit or some other special Judgement The Court will not give a Judgement which they know would be against the Law although the Plaintiff and Defendant do agree to have such a Judgement given Trin. 23. Car. B. r. For the Judges are to do equal justice according to their best skill and not to err willfully If the Plaintiff will not bring in his Postea into the Court according to the Rules of the Court that the Defendant may have time to speak in Arrest of Judgment and the Defendant do make proof of this to the Court upon oath the Court will Arrest the Judgement untill the Plaintiff shall move for Judgement Mich. 23. Car. B. r. And he may thank himself for this trouble and delay Judgement cannot be entred untill four dayes after the Postea is brought in and entred in the Office but after that if nothing be spoken in the mean time to Arrest the Judgement it may be entred Mich. 23. Car. and Pasc 24. Car. B. r. If a Judgement be entred contrary to the Rule of Court made to stay the entry of it the Court upon motion will vacate the Judgement and amerce the party that entred it Mich. 22. Car. B. r. Where a Verdict is imperfect there can be no Judgement given upon it but the Court will grant a new venire facias to summon another Jury to try the issue again Mich. 23. Car. B. r. For the parties shall not be compelled to go further back in their proceedings then where the error was made and that was by the Jury If one bring a Writ of Error to reverse a Judgement given in the Common Pleas and do not remove the Record by a Certiorari the Plaintiff may move in the Common Pleas for Execution notwithstanding the Writ of Error brought
a Trial there he must give the Defendant new Notice but if such Trial be to be the next Term after the reference it is not necessary to give new Notice of it for it may be tried by proviso Trin. 1652. B. S. If one give Notice of a Trial to the Defendant and yet doth not try his Cause at the day appointed but do defer his Trial for longer time than one Term after If after that he will try it he must give a whole Terms Notice before his Trial but if he try it the next Term after there needs no new notice For if the Plaintiff try it not than the Defendant may try it by proviso Trin. 1652. B. S. If an Action be laid in London and the Defendant do live fifty miles off the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes Notice of the Trial before he proceed to it By Rolle Chief Justice In regard of the distance of place it is fit he should have time for his travel and to prepare for his Defence If the Defendant will try the Cause by proviso he ought to give the Plaintiff due Notice that he will try it and may not take advantage of the Notice formerly given by the Plaintiff 1654. B. S. Because it lies in the Election of the Defendant either to try the Cause by proviso or not to try it And the Plaintiff cannot presume he will try it being Defendant in the Action except the Defendant give him Notice that he will try it If one give Notice to another that he will move the Court in one thing and tell him in what and at the time he moves the Court in another matter and not in that whereof he gave Notice that he would move the Court in This is not good Notice of the motion but the Court will give the partie further time to answer the motion By Rolle Chief Justice For by such deceitfull Notice the party concerned cannot prepare to answer the motion Notice given to the party concerned by the Councel in the cause that he intends to move the Court against him at such a time is not to be taken by the Court for good Notice upon the bare averment of the Councel at the Barre that he gave such Notice but if the Councel will make Affidavit in writing that he gave such Notice the Court will allow it This Court is not bound ex officio to take notice of private Orders made by the Councel of State By Rolle Chief Justice For they are matters but of particular concernment and not matters of Law or publique businesses whereof as Judges they are to take Notice Notice given in the night of a robbery by the party robbed with an intent that Hue and Cry should be made after the Fellons is good Notice according to the Statute if it be given in convenient time after the robbery was done By Rolle Chief Justice It is not necessary to give Notice of a robbery to the Vill that is next within the Hundred where the robbery was done and unto that place where it was done For if the next Vill be out of the Hundred yet Notice given there is good Notice according to the Statute of Winchester Non omittas If the Bailiff of a Liberty do not retorn a Warrant made upon a Latitat out of this Court to arrest one within the Liberty directed unto him the party that is prejudiced by his not making a retorn of it may by the course of this Court have a Writ called a Non omittas directed to the Sheriff of the County in which the Liberty lies commanding him to enter into the Liberty and to make Execution of the Writ viz. the Latitat 21. Car. B. r. For Liberties must not be priviledged to hinder or delay the Execution of Justice and if they or their Ministers do neglect their duties herein this Court may intermeddle notwithstanding their priviledges to put the process of this Court in Execution that the Law may receive no obstruction by them Negative preignans A Negative preignans is when two matters are put in Issue in one plea. Hill 23. Car. B. r. And this makes the plea to be naught because the Plaintiff cannot tell in which of these matters to joyn Issue with the Defendant for the incertainty upon which of the matters the Plaintiff doth insist upon Oath OFficers of Justice are by the Common Law bound to take an Oath for their due Execution of Justice and if they refuse to take such an Oath they may be imprisoned for refusing to take it Trin. 22. Car. B. r. So carefull is the Law to have Justice done to all parties One that is to testifie on the behalf of the King upon an arraignment of a Felon cannot be examined upon his Oath for the prisoner against the King but he may be examined without giving him his Oath Mich. 22. Car. B. r. He is suffered to give his testimony for the prisoner against the King and without his Oath in favour of life The Court will rather believe the Oath of the Plaintiff than the Oath of the Defendant if there be Oath against Oath because it is supposed that the Plaintiff hath wrong done him and that the Defendant is the wrong doer and may therefore be rather supposed to swear falsly to protect himself from the Law than the Plaintiff that is forced to flie to the Law to obtain his right Pasc 23. Car. B. r. One that is to be a Witness in a Cause may have two Oaths given him one to speak the truth to such things as the Court shall ask him concerning himself and the other to give testimony in the Cause in which he is produced as a Witness The former is called an Oath upon a Voyre dire Pasc 23. Car. B. r. Obligation One ought not to be admitted to be a Witness to prove an Obligation or other Deed which he takes in the name of another 21. Car. B. r. For if he might be so admitted this would be upon the matter to suffer him to be a Witness to prove a Bond or Deed made to himself which is not reasonable If a Sheriff take a Bond of the Defendant for his apparance to the Action upon which he is arrested by the Sheriff at the Plaintiffs sute and the Defendant doth not appear accordingly and according to the Condition of the Bond the Plaintiff may by the leave of the Sheriff sue this Bond in the Sheriffs name and proceed to Judgement upon it against the Defendant but without his leave it cannot be done but it is at the election of the Plaintiff to sue this Bond or not for he may proceed if he please by amercements upon the Sheriff untill he make a retorn of the Writ directed unto him Hill 22. Car. B. r. For the Bond is only to save the Sheriff harmless against what may befall him if the Defendant do not appear and doth no way concern the
Book and through the whole Book it self and which I have also already hinted unto thee to give thee a compleat Collection of all things belonging to each head which I do finde and have read delivered Sparsim in our Books but onely the substance of such things which I have heard and taken with my own hand at the Bar for some years last past much whereof I am confident thou canst not find elsewhere in print and this is also in the second place the true reason why upon some of the heads I am so short which might have been expected would have been far larger for as things were occasionally from time to time delivered by the Court so were they taken and so are they offered unto thee and not otherwise saving my endeavours to explain some things which by reason of the short delivery of them seemed more obscure then others and that not onely for the easier understanding of the younger Student but also if it were possible to satisfie those great Antagonists of the Law and the practice thereof who have need to have things made very plain and easie to them how much they have been out of the way in their vilifying and laboring to destroy that which is so excellent in it self and by which next under God we are not only continued to be a people but are also rendred a peaceful and a flourishing Nation and which I am confident mauger the malice of those that wish and hope the contrary will remain and flourish amongst us untill for our sins God shall say which I hope in his mercy he will not I have no pleasure in you but shall suffer a Foreign enemy as hath been heretofore done to take away not onely our Laws and Liberties but our Land and Nation If any shall say that my own interest hath warmed my zeal to this temper and renders what I have said suspicious of belief I must answer them that I am indeed of the profession of the Law and I am not ashamed of it for I believe it to be not only an honest but an ingenious and honorable calling and in it self not mercenary as it is by some said to be and too corruptly also so made by many others but for the advantage I have hitherto made by it or believe I shall ever do in the way of profit I might and may yet as easily be contented it should be taken away as most if not any of them that cry so loudly against it onely I believe with this difference I desire to keep that title Quelque chose that I have of mine own pur faire bouillir la marmite as the French saying hath it and with which I am I thank God contented under the protection of the Laws and they to get what they have not from others jure sive injuria it matters them not and that there may be no Law to check or punish their unbridled desires and unlawful actions did not then the ensuing Treatise abundantly prove the truth of that litle I have said in defence of our Laws and the practice thereof I should not doubt but my single and bare averment of a truth so well known unto many would sooner be believed then their many foul calumnies speaking their own interests though in disguised and fair words and pretences I shall say no more but leave what I have said to thy judicious consideration and the Book to thy serious perusal and favorable acceptance William Style From my Study in the Paper buildings in the Inner Temple Iuly the 1. 1646. THE TABLE A ATturney vid. Warrant Page 1 Actions Page 5 Amendment Page 10 Attachment Page 15 Amercement Page 18 Assignment Page 19 Averment ibid. Avowry Page 20 Adjournment ibid. Arrest vid. Judgement Page 23 Administration Page 21 Apparance Page 23 Affidavit Page 25 Addition Page 26 Award Page 27 Afirmance Page 28 Agreement Page 29 Attornment Page 30 Assumpsit ibid. Appeal Page 33 Age. ibid. Advantage ibid. Assize Page 34 Arraignment ibid. Attaint Page 35 Andita Querela ibid. Authority Page 36 Appurtenant and Appendant Page 37 Account ibid. Auditor Page 38 Argument ibid. Aide and Aide prayer ibid. B BAron and Fem. Page 39 Bar in Actions Page 40 Bail Page 41 Burglary Page 48 Bankrupt ibid. Breach Page 49 Bailiff ibid. Bargain and Sale Page 50 Battery ibid. Bill Page 51 Book ibid. C COurts and their Jurisdictions vid. Jurisdictions Page 52 Corporation Page 58 Costs and Charges Page 59 Chancery Page 62 Capias ibid. Challenge Page 63 Certiorari Page 64 Customs Page 67 Compulsion Page 69 Councell and Councellor ibid. County Page 70 Constable ibid. Commission and Commissioners ibid. Cessions Page 71 Commitment ibid. Contempt Page 72 Condition Page 73 Causes ibid. Confirmation ibid. Chattel ibid. Coppy-hold and Copyholder Page 74 Contract ibid. Covenant Page 75 Consideration ibid. Common and Commoner Page 76 Confession Page 77 Copy ibid. Conveyance Page 78 Certificate ibid. Clerk ibid. D D Departure Page 78 Denison Page 79 Delivery ibid. Dower ibid. Difference Page 80 Depositions ibid. Discretion ibid. Devise Page 81 Deodands ibid. Demurrer Page 82 Discharge Page 85 Disseisor Page 86 Distress and Distringas ibid. Discontinuance Page 87 Demand Page 89 Declaration Page 90 Duty Page 96 Dammages ibid. Deputies Page 102 Default ibid. Debt ibid. Deeds Page 107 E EJectment and Ejector Page 107 Evidence Page 112 Emparlance Page 118 Executor Page 119 Escape Page 121 Endictment ibid. Exposition Page 123 Election Page 124 Estople Page 125 E EXtinguishment Page 125 Error Page 126 Entry Page 133 Examination Page 134 Engagement Page 135 Exemplification ibid. Endictments Page 136 Exigent Page 135 Execution Page 139 Elegit Page 142 Essoigne Page 143 Exception ibid. Estate ibid. Enrollment Page 144 Escape Page 145 Extent ibid. Escheater Page 146 F FIne Page 146 Filing of Process c. Page 148 False Latin and form Page 149 Forma Pauperis Page 150 Forfeiture ibid. Franchise Page 151 Fees Page 152 Faits vid. Deeds Felony Page 152 Fee Simple Page 154 False Imprisonment ibid. Feofment Page 155 Foundation ibid. Fiction of Law ibid. G GAvel kind Page 156 Guardian ibid. Good Behavior Page 157 H Heir Page 158 Heriot ibid. Habeas Corpus ibid. Habere facias possessionem Page 160 Homage Page 161 Hundred ibid. I Jury Page 161 Issue Page 165 Judgement Page 168 Infant Page 184 Justification ibid. Jurisdictions vid. Courts Page 185 Injunction Page 186 Information ibid. Justice of Peace Page 188 Issues Page 190 Judge Page 191 Jeofails Page 192 Interogatories ibid. Intendment and Intentions Page 193 Impossbility Page 194 Impropriation Page 194 L LIvery and Seisin Page 195 Lease Lessor and Lessee Page 196 Liberty Page 199 Liver vid. Book Leet Page 199 Limitation Page 200 London ibid. Latitat Page 201 M MAreschal Page 201 Monstrance ibid. Motion ibid. Manslaughter Page 204 Mortgage Page 205 Messuage ibid. N NOn-sute Page 205 Nolle prosequi Page 206 Nomine poenae Page 207 Infancy ibid. Notice ibid. Non
bar the Plaintiff from bringing an Action of account although he do not bring the Action within the time limited by the Statute for before that Statute one that had once cause of Action might bring it at any time afterward without restriction of time and this Action is not mentioned in the Statute Trin. 1650. 20. Junii B. S. An Action of Account doth not lie for Rent alone due and arrear for the Rent demandable is certain but if Rent be behind and there are also other things mixed with it for which the Action is brought then an Action of Account may be brought for both of them together because it is incertain upon the whole matter what is due to the Plaintiff Trin. 1651 B. S. If one receive money due to me upon an Obligation or for Rent due to me I may either have an Action of Account against him as my receiver or an Action of Debt as owing me so much money as he hath received though in both cases he do receive the mony without my consent Trin. 1651. B. S. Auditor Many things are in charge with the Kings Auditors which are not in the Crown Pasc 24. Car. B. r. Auditors Assigned by the Court upon an Action of Account brought to receive the Account are proper Judges of the cause Trin. 24. Car. B. r. Argument Two that are of Councel on one side ought not to Argue for their Clyent both of them upon one and the same day except it be for concluding of all the Arguments which are intended to be made for that party Mich. 1649. B. S. By the custome of the Court. It is not the usual course of the Court for one Councellor to argue the same Case twice By Rolle Chief Justice 12. Nov. 1650. B. S. Aide and Aide Prayer A Tenant for life may pray in Aide of all such persons as are in remainder of estate in the lands for which he is impleaded 1649. 29 Julii B. S. Baron and Fem. AN Action of Debt doth lie against the Husband for goods that were delivered to his Wife if it may be intended that those goods did any wayes come to the use of the Husband Hill 21. Car. B. r. A Fem Covert cannot submit to an Award for the submission is a free Act of will and the will of a Fem Covert is subject to the will of her Husband and so is not free Mich. 22. Car. B. r. But another person may submit to an Award for a matter which concerns the Fem and such a submission is a good submission in Law A Feofment made to a Fem Covert is a good Feofment in Law to pass the Lands if the Husband do know of it untill the Husband do disagree to it for if he disagree from it the Feofment is not good but if he once agree to it he cannot afterwards disagree from it and if he once disagree he cannot afterwards agree to it Q. Hill 23. Car. B. r. A Fem Covert may take a thing though it be not by Deed. Hill 23. Car. B. r. viz. If her Husband consent to it If a Fem sole be indebted to I. S. and afterward the Fem doth marry this Debt is become by the marriage the Debt of the Husband and of the Wife viz. the proper Debt of the Wife and the Debt of the Husband in right of his Wife and the Wife must be sued for this Debt jointly with her Husband and if the Husband dye pending the Suite yet is not the Debt gone but she may be sued for it after the death of her Husband Pase 24. Car. Trin. 24. Car. B. r. Bar in Actions A Recovery in a personal Action is a Bar in all other personal Actions touching the same matter Hill 21. Car. B. r. That is to say it is a good Ploa in Bar to a personal Action brought against the Defendant to say that the Plaintiff did formerly bring an Action against him for the same matter and did recover against him and therefore he prayes the Judgement of the Court whether he shall be permitted to proceed in his second Action In an Action brought to recover a thing from another if a recovery be there upon had by the Plaintiff the Defendant may plead this recovery in Bar of a second Action brought against him for the same thing 21. Car. B. r. A Plea in Bar which doth not give a full answer to all the matter which is contained in the Plaintiffs Declaration is not a good Plea 21. Car. B. r. viz. If it answer not all the material matter of it If the Plaintiff do reply to the Defendants Plea in Bar this replication is a confession in Law that the Plea in Bar is a good Plea although the Plea be not good Trin. 23. Car. B. r. For the Plaintiff hath slipped his advantage of Demurring to the Defendants insufficient Plea by replying unto it If an Action of Debt be brought against one and he Imparles to the next Term yet after his Imparlance he may plead that the Plaintiff is Out-lawed in Bar of the Action Trin. 24. Car. B. r. Baile One that is in Execution is not Bailable by the Law Hill 21. Car. B. r. For Bail is put in to secure the Plaintiff that the Defendant shall perform the Judgement of the Court and now the Law hath determined the matter and there remains onely for the Defendant to perform the Judgement and for the not performing it he lies in Execution Before a Capias is taken out against the Bail the Principal may render his body to the Marshal of the Court and the entry of this in the Marshals Book is a sufficient ground to discharge the Bail and it is not necessary to enter this upon the Record but if the Principal do render his body after a Capias taken out against his Bail it is in the power of the Court whether it shall be accepted or not and they may if they will give the Plaintiff leave to proceed against the Bail notwithstanding the Principals rendring of his body 21. Car. B. r. Because he did it not in due time but hath put the Plaintiff to the charge and trouble of suing out the Capias One that had been Indicted thirteen yeers before for suspicion of murder in poisoning his servant was brought in Court by a Habeas Corpus and was bailed to answer the fact 21. Car. B. r. Though one that is in Execution do bring a Writ of Error to reverse the Judgement given against him yet the Court will not Baile him except their appear unto them very apparent Error in the Record 21. Car. B. r. For else they will suppose that the Writ of Error is onely brought to gain the parties liberty and so to frustrate the Execution One Arnold James that was Bailed in the 44. and 45. yeer of Q. Eliz. upon a Judgement given against him in the Lord Majors Court of London was brought into Court by a Habeas Corpus Trin. 22. Car. B. r.
The Court did take Bail for a prisoner against whom an Appeal of murther was brought because that he did not flee for the murder supposed and had been formerly Indicted for this murder and acquitted upon the Indictment Mich. 22. Car. B. r. Vpon which presumptions they conceived he was not guilty else would not have Bailed him Bail peices are small pieces of Parchment in which is written the substance of the Bail and are filed in the Office of the Court besides the Bail that is filed upon Record Mich. 22 Car. B. r. And are made at the Judges Chamber usually before whom the Bail is taken If the Plaintiff require special Bail he ought to shew his cause of Action before the Judge that takes the Bail or else to declare against the Defendant that it may appear to the Court that there is cause why special Bail should be given otherwayes common Bail is to be filed and if he will not declare against the Defendant till after three Terms then by the course of the Court he must take common Bail what ever the cause of Action be Hill 22. Car. B. r. Trin. 24. Car. 1650. 22. Junii Where one is sued as an Executor he is not compellable to put in special Bail but in case of a Devastavit for wasting the goods of the Testator or where the Action is brought for something done by him since he became Executor Hill 22. Car. B. r. If an Action be brought against Husband and Wife and the Husband is onely Arrested yet the Husband must put in Bail for his Wife if the name of the Wife be in the Writ else he is not bound to put in Bail for her Hill 22. Car. B. r. For it is the Writ that warrants the Bail One may deposite a sum of mony in Court in lieu of Bail if the Court please and they may thereupon order the Plaintiff to waive other Bail 22. Car. B. r. Trin. 23. Car. B. r. If the Defendant do render his body in custody in discharge of his Bail the Plaintiff ought by the Rules of the Court to make his choice whether he will proceed afterwards against the Principal or the Bail Hill 22. Car. B. r. After the Roll is marked to have special Bail common Bail ought not to be entred but if the Roll be not marked for special Bail common Bail may be entred Hill Car. B. r. One that stands Indicted for Felony or for Forgery ought not to be Bailed untill he have pleaded to the Indictment Pasc Trin. 23. Car. B. r. For the parties shall be conceived to be guilty of the Crimes untill they plead If one be committed to prison by the House of Commons in Parliament the Court will Bail the party if in respect of his Fact he is Bailable in Law Pasc 23. Car. B. r. The Court will not Bail one that appears in Court upon the Return of his Habeas Corpus before they have considered of the Return to enform themselves whether he is Bailable by the Law or not Pasc 23. Car. B. r. One committed by a Justice of Peace upon the Statute for having of two Wives and appearing in Court upon the Return of his Habeus Corpus was Bailed upon the prayer of his Councel Trin. 23. Car. B. r. Where the not filing of common Bail will make Error in the Record there the Court will compell the Plaintiff to accept of it Trin. 23. Car. B. r. One that is within Age is not to be admitted to be Bail for another Trin. 23. Car. B. r. For he is not a person of himself responsable at the Law One committed for Felony and brought into this Court by his Habeas Corpus may not be Bailed with less then four Suerties Hill 23. Car. B. r. For the Crime being Capital requires exttraordinary Bail One Judge alone will not take Bail of a prisoner that appears upon his Habeas Corpus Pasc 24. Car. B. r. The putting in of a Declaration and the acceptance of it by the Defendants Attruney with the privity of the Plaintiffes Atturney is counted an acceptance of the Bail Hill 23. Car. B. r. 1650. Pasc 14. Maii. If a priviledged person in this Court do bring an Action against another in this Court he ought by the course of the Court to have special Bail put in to his Action Hill 23. Car. B. r. Whether there be cause for special Bail or not This I suppose is ex gratia Though one be Assigned by the Court to be of Councel on Record for a prisoner that stands Indicted of Felony yet he ought not to move to have the prisoner Bailed Pasc 24. Car. B. r. For he must not move for things against Law One that is Out-lawed ought not to be Bailed untill either the Out-lawry be Reversed or else he hath brought a Writ of Error to Reverse it Pasc Car. B. r. For an Out-lawed person is to receive no favour in the Law One single Judge in Court will not Bail a prisoner in a difficult case but will advise with his Companions Pasc 24. Car. B. r. One that is in Excution in custody of the Marshall of this Court is not compellable to find Bail if another Action be brought against him but if he be in the prison of the Fleet in Execution and an Action be brought against him in this Court he must either be removed and committed unto the custody of the Marshal of this Court or else he must put in Bail to the Action Trin 24. Car. B. r. Before a Supersedas be issued forth upon a Writ of Error brought he that brings the Writ of Error ought to put in special Bail to pay what shall be due if the judgement be affirmed Trin. 24. Car. B. r. It is not sufficient for the Plaintiffs Atturney onely to mark the Roll for special Bail but he ought also to give the Defendants Arturney notice that special Bail is required to the Action Mich. 24. Car. B. r. For the Roll may be marked without notice and so he know nothing of it and plain practice is alwayes the best If the Judgement be Reversed by a Writ of Error which was given against the principal there may be a special Writ taken out to discharge the Bail Mich. 24. Car. B. r. Bail is to be accounted good Bail which is taken de bene esse and before it be filed until it be questioned and disallowed Mich. 24. Car. B. r. Upon examination of it before the Judge Hill 1649. 11. Feb. Bail is so called because the party Bailed is delivered by the Law into the custody of those that are his Bail and who are to answer the party if they do not produce the principal to do it Trin. 1650. B. S. 15. Junii It is derived of the French word Bailler to deliver a thing to another If the Plaintiff do not declare against the Defendant in three Terms after Bail is put in the Bail is not chargeable Trin. 1650. 2. Julii
by my acceptance of the rent I have assented to his entry Distress and Distringas The seising of a stray is not a Distress of it for he that doth seise it claims a property in it 21. Car. B. r. And no man can Distrain that which is his own for to Distrain is but to take one thing from another and to put it into the custody of the Law as a pledge for another thing which is due to him that doth Distrain from him that is distrained An amercement lies not against a Sheriff out of his Office for a misdemeanour done by him whilst he was in his Office but a Distringas nuper Vicecomiti lies against him for it Pasc 24. Car. B. r. The Writ of Venire facias for the Sheriff to summon a Jury is retornable by him into the Court and upon the retorne made of it by him there issues out of the Court another Writ called a Distringas Juratores to cause the Jury to appear in Court at the tryal of the Cause if the tryal be at the Barr in this Court or at the Assises in the County where the Action lies if the tryal be to be there Mich. 24. Car. B. r. The Writ of Distringas Jurators ought to be delivered unto the Sheriff so timely that he may warn the Jury to appear four dayes before the Writ is retornable if the Jurors live within fourty miles of the place of tryal and eight dayes if they live further off 13. May. 1651. B. S. Discontinuance A Discontinuance in process is helped if there follow a verdict in the cause and the party do also appear upon the verdict 21. Car. B. r. Q. Whether every discontinuance of process may be thus helped Where a Vouchee may be essoigned and the essoigne is not adjourned this is a Discontinuance but where it is not necessary the vouchee should be essoigned there the want of adjournment of the essoigne makes no Discontinuance Hill 22. Car. B. r. An appeal may as well be Discontinued by the defect of the process or proceeding in it as it may be by insufficiency of the original Writ Hill 22. Car. B. r. The Plaintiff cannot Discontinue his Action after a generall verdict found against him nor after a special verdict is found upon matter of Law arising upon the evidence given at the tryal in the cause 22. Car. B. r. The Plaintiff may Discontinue his Action by the leave of the Court after he hath joyned in demurrer with the Defendant paying Costs to the Defendant if the demurrer was only upon matter of form in the pleading But if the demurrer was as well upon matter of substance as upon matter of form there he cannot Discontinue his Action by leave of the Court Mich. 24. Car. B. r. Except the Defendant will consent unto it A discontinuance of an Action or Suit is not a perfect Discontinuance untill it be entred upon the Roll but if this Discontinuance be to be pleaded it is not necessary to plead the entry of it Trin. 23. Car. B. r. Where a Demurrer is a generall Demurrer whereas it ought to have been a speciall Demurrer this is a Discontinuance and there can be no judgment given in the case upon such a Demurrer Hill 23. Car. B. r. After a Demurrer upon an Arbitration pleaded it is not usual to Discontinue the Action Mich 24 Car. B. r. Demand Where there is a Demand of a thing to be made there the Demand must be a Legal Demand that is it must be made in such manner as the Law requires otherwise he that made the Demand can take no advantage in Law upon this Demand Hill 21. Car. B. r. If there be no place expressed in a Deed where a rent for Land or a nomine poenae or any other thing demandable shall be made the Law doth then direct that the Demand shall be made upon the Land c. out of which the rent or nomine poenae or other thing demandable do issue or go out of Hill 21. Car. B. r. A Demand of a rent reserved upon a Lease made of a Messuage with Lands belonging to it ought to be made at the Messuage because the Messuage is the most eminent part and place of the thing let and most notorious for the Lessee to take the best notice of the Demand 21. Car. B. r. For the Lessee shall be presumed to be more conversant there then in any other place Yet if the Demand were made upon any part of the Land and the Lessor can prove that the Lessee was there and took notice of it I suppose it is a good Demand but if he were not there when the Demand was made Q. whethâ—r it be a good Demand The parties bringing of an Action of Debt for monies due upon an Obligation and the taking of a distress for rent by him unto whom the rent is due is a good Demand in Law of the Debt due by the Obligation and of the rent Trin. 22. Car. B. R. A Demand in a precipe to recover Lands ought to be more certain than a Demand in a Writ of Dowr 18. Nov. 1650. B. S. For Dowr is one of the things favoured in Law Declaration A Declaration may be against one that is in custody of the Marshall of this Court upon an information although he do not appear to an Action Hill 21. Car. B. R. The Plaintiff is not compellable to file his Declararation yet if it be not filed and afterwards judgment is given in the Cause the judgment is erroneous for want of a Declaration Hill 21. Car. B. R. For before it is filed it is not upon record and so there is no Declaration to warrant the judgment If the Plaintiffs Attorney do file a Declaration against the Defendant in the Kings Bench Office the Defendant is bound to take notice of the Declaration at his peril 21. Car. B. r. A Declaration ought not to vary or differ from the Plaint that is the Cause which the Plaintiff doth express in his Writ why he brings his Writ 21. Car. B. r. For the Writ is the ground of the Declaration and that which warrants it If the Plaintiff declare against the Defendant upon a corrupt Contract made against the Statute of 21. Jac. made against Usury he must express in the Declaration that the Defendant corrupte agreavit or else he must shew that the Contract was made pro usura contrary to the Statute 21. Car. B. r. For he must pursue the words of the Statute One may not Declare against one that is in the Kings Bench prison that is not either in custodia Mareschalli or that hath not filed his bail or that is not a priviledged person in this Court 21. Car. B. r. If one be in custody of the Marescall of this Court at the suit of J. S or have put in bail in this Court to the Action of J. S any other person may put in a Declaration against him the same Terme he
Office where the Declaration is filled Yet they usually do it It is not necessary for the Plaintiffs Attorney to set his hand unto the Declaration which he delivers to the Defendants Attorney but the Defendants Attorney must receive it without his hand set to it If he know him to be the Attorney in the Cause 28. Novem. 1650. B. S. If one be in custody of the Marshall of this Court any person may put in a Declaration against him and the Declaration so put in is a good Declaration and the party must plead unto it although he be illegally in custody for the Court will not trouble themselves to enquire how the party came into Prison Pasc 1652. B. S. If a Prisoner be brought into the Court of the upper-Bench by a Writ of Habeas Corpus to answer a Suite there depending against him a stranger cannot declare against him there upon the by untill he be in custody of the Marshall but he that brought the Prisoner thither by the Habeas Corpus may declare against the Prisoner in Court before he is turned over in custody to the Marshall Pasc 1652. B. S. One ought not to declare against a Defendant in this Court untill his bail be filed By Rolle Chief Justice Pasc 1652. B. S. That is if he do put in bail Duty The words foris faceret may create a Duty Hill 21. Car. B. r. For the party to whom a thing is forfeited hath an intrest in the thing forfeited before he recovers it Dammages Dammages ought not to be given for that which is not at all contained in the Plaintiffs Declaration or for that which is immaterially alledged or against Law but onely for that which is materially alledged and set forth in the Declaration Hill 21. Car. B. r. 23. Car. B. r. Where an Action upon the Case and an Action of trespass are both founded upon one and the same Dammage done to the Plaintiff he may recover joynt Dammages upon both the Actions Hill 21. Car. B. r. Where a trespass for which an Action is brought is entire and not severall trespasses there ought not to be severall Dammages given against the Defendant Mich 21. Car. B. r. Where one joynt Action of trespass is brought for two severall trespasses and the trespasses are found severally the Dammages may be severall but if one Action of Trespass be brought against three Trespassers and two of the Trespassers against whom the Action is brought be found guilty and the third is found not guilty there the Dammages may notwithstanding be intire Mich. 22. Car. B. r. For the trespass is but one joynt trespass though the Action be brought against divers persons But in the former Case there are severall trespasses found and so the Dammages may be severall though the Action be a joynt Action In an Action upon the Case the Jury may finde less Dammages then the Plaintiff layes in his Declaration but they cannot finde more then is laid in the Declaration Mich. 22. Car. B. r. For the Law presumes that the Plaintiff doth best know how much he is damnified by the Defendant and therefore though it may be the Plaintiff will pretend he is more damnified then in truth he is as is often done yet it shall not be presumed that the Plaintiff will say he is less damnified by the Defendant then in truth he is And therefore for the Jury to give more Dammages then the Plaintiff declares upon would be unreasonable which the Law will not suffer Double Dammages given for one and the same Trespass are not well given Mich. 22 Car. B. r. For the Law uses to proportion the amends or satisfaction for an injury done according to the loss which the party to whom the injury is done doth receive by the injury Upon a judgment given upon a demurrer upon an Action of the Case the Court is not to assesse the Dammages but the Jury is to do it Mich. 22. Car. B. r. For the Court gives the judgment upon the matter in Law but the Dammages are to be given upon consideration of the matter of fact which is proper only for the Jury to enquire of In an Assize the Jury ought to give Dammages pending the Suit because there is no remedy over to the Dammages as in an Ejectione firmae but finall Dammages are to be given Pasc 23. Car. B. r. Upon a demurrer to an evidence the Court did direct the Jury who should have tried the issue if the demurrer had not been to finde Dammages for the Plaintiff if upon arguing the demurrer the Court should give judgment for him Pasc 23. Car. B. r. For the Jury may consider of the matter in fact which should have been tryed if the evidence had not been demurred unto Where Dammages are found severally the Plaintiff may relinquish part of the Dammages and enter his judgment for the rest Hill 23. Car. B. r. But where the Dammages are entire he may not do it without leave of the Court Pasc 24. Car. B. r. 19. Ap. 1648. The Jury ought to finde Dammages in a speciall verdict found in an Action of Trespass and Ejectment for untill the Plaintiffs Title is found which is not done by the speciall verdict the Plaintiff shall be accounted a Trespasser against the Defendant because the Defendant was in possession of the Land when the Plaintiff entred and made the Lease of the Land Pasc 24. Car. B. r. For he that is in possession of Land hath title to it against all the world untill a better title is proved Melior est conditio possidentis Where a debt sued for doth appear certainly to the Court what it is there if the Plaintiff recover the Court doth tax the Dammages and not the Jury but where it doth not appear certainly to the Court there it is left to the Jury to enquire of and to tax them Trin. 24. Car. B. r. A Writ of Enquiry of Dammages in a Cause tryed in the Mareschals Court may be executed by the Judges in the Court there Trin. 24. Car. B. r. Greatr Costs and Dammages may be given in some Cases then the Dammages laid in the Declaration Trin. 24. Car. B. r. For the Plaintiffs Declaration is only for the Dammages due unto him by reason of the injury done him by the Defendant But the Costs are given in respect of the Plaintiffs expences in his suit to recover the Dammages In a Replevin brought and a speciall verdict thereupon found Costs and Dammages shall be given on either side according as the issue shall be found If a judgment be given upon a nihil dicit in an Action of Debt brought in the Common Pleaâ— that Court will give Costs and Dammages and so is it used to be done in inferior Courts Trin. 24. Car. B. r. But Q whether it be so inthis Court If entire Dammages be given in an Action brought for divers severall things whereas it is not possible to have Dammages for some of them the Dammages
shall be accounted to be given for those things only for which Dammages may be given and the expressing the other things shall be accounted idle and void Trin. 24. Car. B. r. If an Action of Trespass be brought and the Defendant pleads and the Plaintiff joyns issue with the Defendant and after issue joyned he is non-suit he shall pay the Defendant Costs for his false vexation of him by the Stat. of 4. Jac. And upon very good reason For it shall be intended that if he had had good cause of Action against the Defendant that he would not have become non-suit When a judgment is given by default then the Court doth assesse the Dammages and not the Jury Mich. 1649. B. r. For there is no issue tryed If an Action of Trespas be brought against divers persons and some of them plead to issue and others do not and the issue is found for the Plaintiff and Dammages are given as well against those that joyned not in the issue as against them that joyned in the issue these Dammages are well given Mich. 1649. B. S. For the Trespas is found and that the Plaintiff was damnified so much by reason thereof If Dammages be assessed and it is not expressed that they are assessed pro Misis Custagiis this is erroneous for it doth not appear by the Record for what the Dammages are assessed as it ought to do Hill 1649. 31. Jan. B. S. For Records ought to be certain and not ambiguous All Costs are given ex assensu partium that is by the consent of the Plaintiff and the Defendant By Woodward Clarke Hill 1649. 4. Feb. B. S. If the Defendant whose title is concerned in an Ejectione firmae will not defend his title to the Land in question and the verdict do pass against the Plaintiff the ejector may release the Dammages 11. Feb. Hill 1649. B. S. For they do properly belong to hiâ—… One that sues in forma pauperis if the Cause go against him yet he shall pay no Costs if he were admitted to sue in forma pauperis in the suit which passeth against him before the suit began but if he were admitted to sue in sorma pauperis pendente lite that is whilst the fuit depended he shall pay Costs By Rolle Chief Justice who said it had been so antiently held and ruled 16. Nov. 1650. B. S. But Q what Costs whether the Costs of the whole suit or only with relation from the time he commenced his suit to the time he was admitted to sue in Forma pauperis In a Writ of Dowr if the Plaintiff recover and yet doth not desire a Writ of enquiry of Dammages to recover the Dammages the Court may tax the Dammages 5. Feb. 1650. B. S. The Court may encrease the Dammages which are found by the Jury upon a Writ of enquiry of Dammages in an Action of Assault Battery and Wounding if they see cause upon the view of the party that was beaten and wounded Trin. 1651. B. S. This was done in the Case of Davis Plaintiff and the Lord Foliot Defendant The Court will not compell the party that is non-suit in a Cause to pay his Costs upon the non-suit but if the party will not pay them when they are taxed the Court will not suffer him to commence his suit again untill he have paid them Pasc 1652. B. S. After judgment is given in a Cause depending in this Court the Court cannot make a Rule for the payment of the Costs which were expended in prosecuting the suit By Rolle Chief Justice 1655. B. S. For after judgment the parties are out of Court for the Cause is determined Q. No other Costs or Dammages shall be given upon a Recovery in an Action brought upon the Statute of 2º Edw. 6. for not setting forth of Tythes than the Dammages which are expressed in the Statute which is treble dammages 1655. B. S. For the course of the Common Law in such cases is altered by the Statute and it shall be intended that the Plaintiff hath better satisfaction thereby Deputies The Common Law doth in many Cases take notice of Deputies but it doth never take notice of under-Deputies Trin. 23. Car. B. r. As of the under-Sheriff who is but the Sheriffs Deputy sub-Almoner or Deputy-Almoner For in many Cases an Officer may be Law make a Deputy but a Deputy hath no power to depute another under him The King by his speciall Commission may make Deputy Escheators to finde an Office after the death of an Honourable Person Pasc 24. Car. B. r. As of a Duke Earl Marquess Viscount Baron c. Q. Whether in some speciall Case he may not do it after the death of one that is not of the Nobility It seems he may Default Before a verdict is taken by Default the Cryer of the Court doth call the Defendant three times and then if the party do not appear the Plaintiffs Counsell doth pray the verdict may be so entred Hill 21. B. r. Debt An Action of Debt doth lye against the Husband for goods which were delivered as sold unto the Wife because the Law doth intend that they were employed and came to the use of the Husband Hill 21. Car. B. r. And the Husband and Wife are but one person in Law If there be an erroneous judgment given for the Plaintiff in a personal Action in the Common Pleas and thereupon he brings an Action of Debt against the Defendant upon the erroneous Judgement in this Court the Action will well lye here until the Judgement in the Common Pleas be reversed by a Writ of Error 21. Car. B. r. For an erroneous Judgement is not void but voidable But when it is made void by a Writ of Error then there is no ground to support the Action of Debt so that then it cannot be maintained If one do assume upon a consideration moving from I. S. to perform a thing which concerns A. B. and do not perform it I. S. may bring an Action of Debt upon the Assumpsit against him that did so assum upon himself Mich. 22. Car. B. r. For the Action is grounded upon the promise made and the not performing it to I. S. to whom it was made In some Case an Action of Debt will ye though there be no contract betwixt the party that brings the Action and him against whom the Action is brought Mich. 22. Car. B. r. An Action of Debt lies against a Sheriff for moneys which he hath levyed by vertue of a Writ of fieri facias for the party that did recover the moneys for the Law doth create a privity by the fieri facias betwixt the Sheriff and the party that sued out the fieri facias Mich. 22. Car. B. r. If An Action of Debt be to be brought against an Administrator for Rent which was due by the Intestate upon a Contract made betwixt him and the Intestate in his life time the Action must he brought in the County where the Contract
was made but if an Action of Debt be brought against an Administrator for Rent due for Lands left by the Plaintiff to the Intestate but growing due in the time of the Administrator viz. since the Letters of Administration were granted unto him the Action must be brought in the County where the Lands do lye for which the Rent is due Mich. 22. Car. B. r. An indebitatus assumpsit generality is not good to create a Debt but there must something else be made appear to the Court to make a Debt to be due to the party that brings an Action of Debt or else the Action will not lye Mich. 22. Car. B. r. For else to declare upon an indebitatus assumpsit is no more then if the parties declared upon a nudum pactum An Action of Debt doth lye for a Councellor or for an Atturney for their Fees against the party that retained them Mich. 22. Car. B. r. Q. Whether it lie for a Councellor for his Fee is honorarium Quiddam and not mercenarium a Gratuity rather then Wages or a Salary By Rolle Chief Justice An Action of Debt doth lie upon a perfect Contract in Law betwixt the parties and not an Action upon the Case 22. Car. B. r. For generally where the Law directs a certain Action there an Action upon the Case is not to be brought An Action of Debt brought against an Executor for Rent grown due in the time of the Executor ought to be brought in the detinet and debet Hill 22. Car. B. r. So then said to be adjudged in Royton and Mees Case But if the Action be brought for Rent due in the life of the Testator the Action ought to be brought in the detinet onely Where a certain sum of mony is to be paid upon an Obligation at several dayes of payment expressed in the Condition of the Obligation though the mony be not paid accordingly yet an Action of Debt cannot be brought for any part of this money untill all the days of payment expressed in the Obligation be past Pasc 24. Car. B. r. Because the penalty of the Obligation is to be recovered which is not wholly due untill the whole Condition be broken which is not so untill the party fail in the last day of payment If one deliver necessaries to an Infant viz. meat drink or cloaths and he promise to pay for them an Action of Debt will lye against the Infant upon this promise if he perform it not But if the party come to an account with the Infant forwhat is due unto him from the Infant and thereby doth state the sum due unto him an Action of Debt doth not lye against the Infant for the moneys stated to be due unto the party upon this account Trin. 24. Car. B. r. If a woman sole be indebted and then take a husband the Debt is now thereby become the Debt of the husband and of the wife that is to say the wives proper Debt and the husbands Debt in the right of his wife and the wife ought to be sued for this Debt together with her husband and if the husband dye whereby the Action is abated yet the wife may be sued again for this Debt Trin. 24. Car. B. r. A Judgement was Reversed in this Court by a Writ of Error because it was given to recover a Legacy Trin. 24. Car. B. r. For then a Legacy was not recoverable at the Common Law but in the Eclesiastical Court or in the Chancery But now by a late Statute an Action lies for a Legacy at the Common Law See the Statute An Action of Debt doth not lie upon a Judgement given in this Court after the Record thereof is removed by a Writ of Error out of this Court into the Exchequer Chamber Trin. 23. Car. B. r. An Action of Debt doth not lie against an Executor which is grounded upon a simple contract made by the Testator Hill 1649. Jan. 31. B. r. Q. And Action of Debt doth lie against a Goaler for suffering a prisoner in Execution to escape by the party at whose Suit the Prisoner was committed in Execution Trin. 1650. B. r. 15. Junii One may bring an Action of Debt for Rent in what County he pleaseth 9. Nov. 1650. B. r. Because it sounds not in the realty Q. If a judgement be given for the Plaintiff in an Action of Debt in the Common Pleas and afterwards the transcript of the Record is removed into this Court by a Writ of Error yet the Plaintiff for whom the Judgement was there given may bring an Action of Debt there upon that Judgement but if the Judgement be Reversed in this Court upon the Writ of Error and after the party proceed in the Common Pleas in his Action of Debt the party against whom he thus proceeds may bring his Audita Querela to be relieved against this second Action 3. Feb. 1650. B. S. For by the reversal of the Judgement the ground of the second Action is destroyed One may joyn two Debts due upon two severall Obligations from the same party in one Action of Debt 6. Feb. 1650. B. S. And declare in one Declaration upon the several Obligations If one do deliver goods to I. S. to my use if the party to whom they were delivered do refuse to deliver them unto me I may have either an Action of Debt or an Action of Accompt for them against him to whom there were delivered at my election 22. Ap. 1651. B. S. Deeds Such construction ought to be made of a Deed that it may agree with the intent of the parties to the Deed if their intent do not contradict the Rule of Law Hill 22. Car. B. r. A Deed of Indenture made betwixt two ought to be Sealed and Delivered by both parties to the Indentures otherwise it cannot be said to be a Deed indented Trin. 23. Car. B. r. If all the parts of a Deed may by Law stand together no one part of that Deed shall be so interpreted as to make either the whole Deed or any part of it to be voide Pasc 24. Car. B. r. A Deed cannot be delivered as an escrew to the party himself who is to take by the Deed. Trin. 24. Car. B. r 1650. Trin. B. S. For the delivery of it makes it the parties Deed. If a Deed do say This Indenture made whereas the Deed is not endented yet it may be a good Deed for it may work as a Deed Poll though it cannot work as an Indenture If it do not appear by the Fabrick of a Deed that Lands do pass by the Deed by way of Feoffment yet the Land may pass by it by way of use if there be a consideration which is sufficient in Law to raise a use expressed in the Deed. Ejectment IF one Seal a Lease of Ejectment to try a title of of Land it is not necessary to give notice of the sealing of this Lease unto him whose title is concerned but it is sufficient
to give notice of the Lease to the Tenant or Undertenant of the Land in question Hill 23. Car. B. r. For the possession of the Land is primarly in question in this Action and is to be recovered and not the title of the Land though the title of the Land do come in question and is tryed collaterally But now by the new way of practice it is not usual to Seal any Lease of Ejectment at all in an Action of Trespass and Ejectment but the Plaintiff that intends to try the title delivers a Declaration to an Ejector of his own making and that Ejector sends or delivers the Declaration to to the Tenant in possession who gives notice thereof to his Lessor whose title is concerned to defend the title and if neither the Tenant in possession nor his Lessor will defend the title then the Ejector will confess a Judgement to the Plaintiff and so the Tenant will be stripped out of possession but if they or either of them will defend the title then it is usual for them to move the Court that they may be made Ejector to defend the title which the Court will grant if they will Consess Lease Entry and Ouster at the tryal and stand meerly upon the title and if at the tryal they do not then Judgement to be entred against the Plaintiffes Ejector If one do do occupy the Lands in question in an Action of Trespass and Ejectment after the Ejectment Lease made to try the title of the Land is Sealed this is an Ejectment in Law of the Lands in question Trin. 22. Car. B. r. For the keeping of possession of the Lands against him to whom they are let by the Lease doth amount to an Entry upon him although he was never in possession of the Land let If there be two Ejectors made in an ejectione â—irmae one of them may be found guilty of the Trespass and Ejectment and the other as the case may fall out may be acquitted Trin. 22. Car. B. r. An Ejector in Law is any person that comes upon any part of the Land c. in the Ejectment Lease although it be by chance and with no intent to disturbe the Lessee of the possession next after the Sealing and Delivery of the Ejectment Lease and such an Ejector is a good Ejector to bring an Action of ejectione firmae against to try the title of the Land in question Mich. 22. Car. B. r. 1650. B. S. And there is no prejudice to any person by having such an Ejector He that is to try a title of Land by an Action of Trespass and Ejectment ought not to make an Ejector of his own against whom he may bring his Action or to consent or agree with one to come upon the Land let in the Ejectment Lease with an intent to make him an Ejector and to bring his Action against him Mich. 22. Car. B. r. For by that means the Tenant in possession of the Land was often put out of possession by a Writ of habere facias possessionem without any notice given either to him or his Lessor of the Suite But now this is altered by the new way of practise formerly mentioned In every ejectione firmae the Plaintiff ought to set forth in his Declaration in what Parish the Lands in question do lie that the venue may be from the place where the Lands do lie and not from the body of the County except it be when as the Lands in question do not lie in any Vill or Hamlet Mich. 22. Car. B. r. Or lieu Conus for in all such causes it is of necessity that the Jury be of the body of the County because there is not any more particular place from whence the venue may come If one doclare upon a Lease in an ejectione firmae and that by vertue of that Lease he was in possession of the Lands thereby let unto him untill that he was Ejected by the Defendant it is supposed that the Lessor that made the Lease unto him was alive at the time when he brought his Action Mich. 22. Car. B. r. An Ejectment or an Ouster is either an actual Ejectment as when the Lessee is actually put out of the Land let unto him or else it is an Ejectment by implication of Law Pasc 22. Car. B. r. An ejectione firmae ought to be brought for a thing that is certain and not of an incertain thing Pasc 23. Car. B. r. For if the thing be uncertain the Sheriff cannot if the Plaintiff recover know of what to deliver the possession upon the Writ of habere facias possessionem If the Plaintiff in an ejectione firmae do declare for a house lying in two Parishes if the house do lye in either of the Parishes and do not lye in both of them yet is the Declaration good Pasc 23. Car. B. r. For there is certainty enough in it Although in an ejectione firmae there be a Verdict and a Judgement against the Plaintiff yet the Plaintiff may bring another Action of Trespass and Ejectment for the Land Trin. 23. Car. B. r. He may bring divers Actions one after another if he please for a Judgement in that Action is not final By Rolle Chief Justice It is doubtful whether an ejectione firmae do lie de uno crofto Trin. 23. Car. B. r. For the incertainty of the word Croft what it is and what it doth contain If a Lease of Ejectment to try the title of Lands in the possession of I. S. be made to one and after the Lease is made the Wife of I. S. or the servant of I. S. do keep the possession of the Land for I. S. and I. S. do after this occupy the Land I. S. is an Ejector against whom an Action may be brought to try the title of the Land Mich. 23. Car. B. r. 24. Car. B. r. Pasc One who hath title to the Land in question in an ejectione firmae may upon motion to the Court be made a party to the Action that he may thereby defend his title if he will confess the Lease Entry and Ouster Hill 23. Car. B. S. Vid. Supra If a Lease of Ejectment be made of a house and lands occupyed with it to try the title of them and the wife of the occupyer of the house and land continue in possession of the house after the Ejectment Lease is made she is an Ejector as to the house but not as to the Lands Pasc 1652. He who is in any part of a Messuage viz. in the Barn Stable Stall c. after the Lease of Ejectment Sealed and Delivered to try the title of the Messuage is an Eject or for the whole Messuage Pasc 24. Car. B. r. The owner of the Land may consent with the party that claims the Land to make an Ejector to try the title of it if it be not a plot betwixt him and the Ejector Mich. 24. Car. B. r. viz. To strip the Tenant of the Land in
that doth rescue a Prisoner at the Election of the party who is damnified by this rescous Pasc 24. Car. B. r. Yet the judgments are different in these two Actions Where one may bring an Action of Wast for Trees cut down upon his Land it is at his Election to bring an Action of Wast or else an Action of Trover and Conversion for the Trees Mich. 24. Car. B. r. But both he cannot bring An Action upon the Case or an Assize doth lye against him that doth surcharge a Common at the Election of him that is injured thereby Mich. 1649. B. S. If a Prisoner escape that lyes in prison upon an execution an Action of Debt lyes against the Goaler that suffered this escape for the party at whose suit he was in execution but if he were not a prisoner in execution and do make an escape it is in the Election of the party at whose suit he was a prisoner either to bring an Action upon the Case or an Action of Debt against the Goaler for this escape Trin. 1650. 15. Junii B. r. If the Plaintiff amend his Declaration it is at his Election either to pay the Defendant Costs for this amendment or to give the Defendant an emparlance to the next Terme after the amendment and the Defendant cannot hinder this Election 7. Feb. 1650. For the Defendant is at no prejudice by it Estople A recitall in an Obligation is an Estople against which he that made the Obligation shall not be permitted to plead any thing to the contrary if an Action be brought against him upon this Obligation Pasc 24. Car. B. r. For that were to contradict his own act and Deed. If one enter into an Obligation by the title of an Esquire whereas in truth he is a Knight if an Action be brought against him upon this Obligation and he is named an Esquire he shall be Estopped to say in his Plea that he was not an Esquire but a Knight at the time he entred into the Obligation in abatement of the Writ Hill 1649. B. S. For constat de persona that he was by his own admission the same person that entred into the Obligation and did then admit the title of Esquire to be his true addition Where one hath liberty to confess and avoid the matter which the Plaintiff doth set forth in his Declaration against him there he cannot be Estopped to plead such matter for his defence 29. Jan. 1649. Hill B. S. Extinguishment If one have used to hold a Court by Custome as by Law he may if he do afterwards purchase Letters Pattents to enable him to hold this Court he hath thereby extinguished the Custome and must now hold the Court by vertue of his Letters Pattents Mich. 24. Car. B. r. For the party hath thereby waived the Custome and hath made Election to hold his Court by another Authority Error If a Writ of Error be brought to reverse a judgment and afterwards this Writ of Error is discontinued for want of prosecution of the party yet execution cannot be had upon the judgment untill this discontinuance of the Writ of Error be certified from the Court where the Writ of Error is discontinued unto the Court where the judgment was given 21. Car. B. r. If a Writ of Error be brought meerly to stop execution upon the judgment given and without any probable matter of Error to be alledged against the judgment and this doth appear unto the Court where the Writ of Error is brought the Court will not hinder execution to be awarded upon the judgment notwithstanding the bringing of the Writ of Error to reverse it 21. Car. B. r. For the Law doth require speedy justice to be done The assignment of the generall Error upon a Writ of Error brought is to say that the Declaration was insufficient and that judgment was given for the Plaintiff whereas it ought to have been given for the Defendant and such like generall frivolous matters without alledging any particular colourable matter of Error in the judgment 21. Car. B. r. A Writ of Error doth lye for one that is committed by a Justice of the Peace for a forcible entry committed by him Trin. 22. Car. B. r. For the commitment is grounded upon a judgment given by the Justice against the party committed All parties that are grieved by an erroneous judgment may joyn in a Writ of Error to reverse the judgment but persons that are not damnified by it cannot joyn with others that are damnified by it to reverse it Mich. 22 Car. B. r. For the Law will not favour any to sue who have no cause The Bail cannot joyn with the Principall in a Writ of Error to reverse a judgment given against the Principall 22. Car. B. r. For the principall must reverse the judgment alone if it be erroneous because it was only given against him and not against the Bail Errors to a judgment ought to be assigned upon the Record 22. Car. B. r. No person shall be compelled to bring a Record into the Court to make an Error in another Record Mich. 32. Car. B r. for the Law doth favour matters of Record and will affirm them rather then question them without apparent cause shewn If a judgment given in an inferior Court be entred in this manner ideo confideratum est and the words per curiam are omitted as they ought not to be the judgment is erroneous but if a judgment given in a superior Court viz. in any of the Courts at Westminster be entred and the words per curiam are omitted yet the judgment is not erroneous Mich. 22. Car. B. r. For inferior Courts are tied to observe their antient forms of proceedings and not to vary from them He that hath obtained a judgment if he finde that it is Erroneous may move the Court to have it reversed for his own dispatch which the Court will do when they are satisfied what the Error is Mich. 22. Car. B. r. For till such a judgment is reversed 〈◊〉 Plaintiff cannot bring a new Action for the same Cause for which that judgment was given for if he should the Defendant may plead the judgment in barr of his second Action If the Defendant after judgment given against him do bring a Writ of Error to reverse the judgment but doth not certifie the Record into this Court in reasonable time the Court will grant that the Defendant may have execution upon the judgment but he is not bound to certifie the Record the same Terme in which he brings his Writ of Error but if he do it the next Terme after it is sufficient Mich. 22. Car. B. r. If a judgment be given in any of the Cinque Ports if the Defendant will bring a Writ of Error to reverse it he must bring his Writ of Error before the Warden and Constable of Dover and not in this Court Mich. 22. Car. B. r. This is one of the Priviledges that belong unto those that
inhabit within any of the Cinque Ports or members thereof If an erroneous judgment be given in any of the Sheriffs Courts of the City of London the Writ of Error to reverse this judgment must be brought in the Court of Hustings before the Lord Major Hill 22. Car. B. r. For that is the Superior Court A Writ of Error that is brought in the Parliament is made retornable immediately Pasc 23. Car. B. r. A Writ of Error to reverse a judgment ought not to be brought before the judgment is signed Pasc 23. Car. For before it is signed it is not judgment and the Writ of Error runs thus Si judicium sit redditum Yet it is usual to do it in inferior Courts Q Whether the Heir may bring a Writ of Error to reverse an erroneous Judgment given in a personal Action which Judgement doth charge the Lands of the Heir Trin. 23. Car. B. r. He that brings a Writ of Error to reverse a Judgement ought by the Statute to put in good Suerties to pay the debt recovered and the charges of the Judgement and those that shall be caused by bringing the Writ of Error in Case the Judgement shall be affirmed and not reversed upon the Writ of Error Trin. 23. Car. B. r. For it is reason the party should have recompence for his causeless vexation and delay When a Writ of Error is brought to reverse a Judgement the party that brings the Writ must cause the Roll where the Judgement is entred to be marked whereby the other party may take notice upon Record that the Writ of Error is brought and this marking of the Roll is a Supersedeas in it self to hinder Execution to be taken out upon the Judgement but if the Roll be not marked Execution may be taken out upon the Judgement notwithstanding the Writ of Error but if Execution be taken out after it is marked the party grieved may have a Supersedeas quia erronice emauavis to make void the Execution Mich. 23. Car. B. r. It is not usually for the Court of Common Pleas upon a certiorari directed to them upon a Writ of Error brought to reverse a Judgement given in that Court to Certifie the Record into this Court to Certifie the Original Writ upon which the Action was commenced there for that Writ is to remain with the Custos brevium of that Court Mich. 23. Car. B. r. A Writ of Error is not to be brought in Parliament to reverse a Judgment given in the Common Pleas but the Writ of Error ought to be brought in the Court of the Kings Bench. Hill 23. Car. B. r. The Chief Justice onely and not any other of the Judges of the Court ought to allow a Writ of Error that is brought Hill 23. Car. B. r. If a Judgement given in this Court be erroneous in matter of Fact onely and not in matter in Law a Writ of Error may be brought in this Court where the Judgment was given to reverse it and it it is not necessary to bring a Writ of Error in Parliament but if the Judgement be erroneous in matter in Law then a Writ of Error cannot be brought in this Court to reverse it Pasc 24. Car. B. r. 1650. B. S. For error in fact is not the error of the Judges and therefore the reversing of a Judgement given by them which is onely erroneous in matter of fact is not the reversing their own Judgement but it is otherwise if the Judgement were erroneous in matter in Law A Writ of Diminution in a Writ of Error ought not to be granted to be directed to an inferior Court Trin. 24. Car. B. r. If he that doth bring a Writ of Error do discontinue his Writ before the Defendant in the Writ of Error do plead unto it he may have a new Writ of Error but if he discontinue his Writ after the Defendant hath pleaded to it he cannot have a new Writ Mich. 1649. B. S. If by any possibility there may be supposed to be error in the Record any person that may be damnified by this error may bring a Writ of Error to reverse it Hill 1649. B. S. For although he be not named a party to the Record yet the Law hath made him a party to it by subjecting him to dammage by it and it is therefore reason he should be permitted to use all lawful means to defend himself from it A Judgement may be an erroneous Judgement although it be not given for the Plaintiff but the Defendant is thereby acquitted for it may be erroneons in the entry of it for it may it is entred with a Capiatur against the Plaintiff whereas it ought to be in Miserecordia pro falso Clamore Hill 1649. B. S. A Writ of Error is not like another Writ for a Writ of Error may be abated as to one person and yet may stand good as to another person and so cannot another Writ But if the Writ of Error be brought in a Case where it will not lye it must be abated in the whole Hill 1649. B. S. 27. Jan. For there is no ground for the Writ All the parties privies to the Record may joyn in a Writ of Error to reverse it if it be erroneous Hill 1649. B. S. A Writ of Error may be brought to Reverse a Judgement before a Writ of Enquiry of dammages which Issues out upon the Judgement be executed Hill 1649. 2. Feb. B. S. Q. The party who is to have benefit by a Judgement may bring a Writ of Error to reverse it as well as the Defendant Hill 1649. B. S. 4. Feb. If a Writ of habere facias possessionem to deliver possession to the Plaintiff of Lands recovered by him in an ejectione firmae doth contain in it more Acres of Land then were contained in his Declaration the Writ is erroneous but if the Sheriff do deliver possession of more Acres of Land then are contained in the Writ this doth not make the Writ erroneous but there an Action upon the Case doth lye against the Sheriff for doing it or an Assize may be brought against him that hath the possession delivered to him for the Surplusage of the Land delivered unto him 18. Nov. 1650. B. S. A Writ of Error ought to mention before whom the Judgement was given for the reversing whereof it is brought 31. Jan. 1650. B. S. A Writ of Error which is brought to reverse an Out-lawry was wont to be signed by the King Q. Who shall sign it now whether the Parliament or not 3. Feb. 2650. B. S. But now I suppose it shall be signed by the Protector If Judgement be given upon a matter which doth arise out of the jurisdiction of the Court where the Judement is given this is an erroneous Judgement 3. Feb. 1650. B. S. For such a Judgement is given coram non judice and so is voide in toto If a Judgement be entred quod recuperare debeat a Writ of Error cannot be
which is entire Mich. 24. Car. B. r. For this would be to divide the Judgement upon which it is grounded If the Record be not certified in due time after the Writ of Error is brought to reverse a Judgement he that hath the Judgement may take out Execution of Course without moving the Court to have leave to do it Mich. 1649. B. S. For it shall be intended that the Writ of Error is meerly brought for delay because the party doth not prosecute it and it shall be all one as if it had not been brought After a Judgement is signed there may be Execution taken out immediately upon it and it is not necessary that the Plaintiff should forbear to take out his Execution untill the Judgement be entred Mich. 1649. For it is a perfect Judgement of the Court before it is entred for the entry of it is the Act of the Clerk and not of the Court. If the Plaintiff in a Writ of Error to reverse a Judgement be non-suite yet the Defendant in the a Writ ought not to take out Execution without a Scire facias first sued out against the Plaintiff in the Writ of Error 15. Nov. 1650. B. S. Q. tamen For it seems the Plaintiff shall not bring another Writ of Error to reverse that Judgement but that such non-suite shall be peremptory unto him If a Writ of Error be brought in the Exchequer Chamber to reverse a Judgement given in this Court and the Judgement is affirmed there yet that Court cannot make out Execution upon the Judgement affirmed but it must be done in this Court where the Judgement was given 18. Nov. 1650. B. S. For the affirming of Judgement is not giving of Judgement and so it is not their Judgement Notwithstanding the late Statute that enacted that a Writ of Error should be no Supersedeas to stay Execution this Court will not grant out Execution upon a Judgement given here if the Record be removed by a Writ of Error into the Exchequer Chamber Nor will they grant a Supersedeas 10. Feb. 1650. B. S. In Needler and Guests Case for it is doubtful whether the Statute do extend to Writs of Error brought in the Exchequer Chamber or not because that it is not cemmonly brought If an Execution be returned and filed the party can never have another Execution upon that Judgement upon which the Execution was grounded but if it be not returned and filed he may have another Execution 10. Feb. 1650. B. S. For the returning and filing it makes it to be an Execution executed but before it was returned and filed it was but an Execution executory or in fieri If one have a Judgement given for him and he doth afterwards bring an Action of Debt upon this Judgement but doth not give any Declaration unto the Defendant the Plaintiff may at any time within the space of one yeer next after the Judgement given for him take out Execution upon his Judgement 1652 B. S. For the bringing of an Action of Debt doth not take away his Judgement and his not prosecuting of his Action of Debt doth presume he will waive that Action and resort to his Execution upon the Judgement Elegit Upon a testatum an Elegit doth lye into the principality of Wales or into the County Palatine of Chester Hill 22. Car. B. r. Essoigne The Essoigne Roll in the Court of the Common Pleas is a Record of the Court and doth remain in the Custody of the Clerk of the Essiogns Pasc 23. Car. B. r. If a Declaration be delivered to the Defendant after the Essoigne day the Defendant is not bound to plead that Term but may Emparle unto the next Term. 3. July 1650. B. S. For it is accounted for a Declaration of that Term and not of the precedent Term. Exception The Councel at the Bar ought to take all their Exceptions to the Record at one time or at least before the Court have delivered any opinion in the cause Pasc 23. Car. B. r. For the Court is not bound to hear any afterwards for this would hinder dispatch of business A Negative expression may be taken to inure to the same intent as an Exception doth Trin. 23. Car. B. r. Exceptio in non exceptis firmat regulam Estate No Estate can be limited to commence after a Fee simple determined because a Fee simple is the largest Estate that can be and shall not be supposed to have a possibility to have an end or determination Trin. 23. Car. B. r. Such an Estate which is not settled at the time of the making of it but both depend as to the being of it upon another estate which is not certain but may either take effect or not take effect is a contingent Estate Trin. 23. Car. B. r. Because it depends upon an incertainty and may be or not be according to the several event of things Enrollment An Enrollment of a Deed is either an Enrollment of it by the Common Law or an Enrollment of it according to the Statute of Enrollments Trin. 23. Car. B. r. If a Deed be Enrolled by the Statute and the Enrollement of that Deed is to be pleaded it must be pleaded precisely that it was Enrolled according to the Statute Trin. 23. Car. B. r. That the plea may be certain The Enrolling of a Deed doth not make the Deed to be a Record but by the Enrollment it doth only become a Deed Recorded Mich. 23. Car. B. r. For there is difference between matter of Record and a thing Recorded to be kept in memory If an Issue be whether Enrollment or not Enrollment this issue is tryable by a Jury and not by the Enrollment because this issue is mixed with matter of Fact Mich. 23. Car. B. r. Before the 20 year of Q. Eliz. it was not used to Endorse the Enrollments of Deeds upon the back of them as it is now used to be done Mich. 23. Car. B. r. An Enrollment of a Deed ought to be made in Parchment and Recorded in Court Pasc 24. Car. B. r. If the Inrollment of a Deed be lost yet the Enrollment is good evidence if it can be proved to a Jury by circumstances that there it was an Enrollment Pasc 24. Car. B. r. The Enrollement of a Deed is a sufficient proof of the Deed it self upon a tryal Mich. 1650. B. S. For every Deed before it is Enrolled is to be acknowledged to be the Deed of the party If Lands be conveyed in a Deed for mony onely then that Deed must be Enrolled else the Lands will not pass by the Deed but if Lands be conveyed in a Deed in consideration of money paid and also in consideration of natural love and affection there it is not necessary to Enroll the Deed but the Lands will pass though the Deed be not Enrolled 5. Feb. 1649. Hill B. S. Escape If the Sheriff suffer one taken by him in Execution to Escape the party at whose Suite he was taken in Execution
and so it is as if nothing were done in the cause If there be two Issues joyned in one cause and one of them is a good Issue and well joyned and the other is not a good Issue but ill joyned and upon trial of the Cause entire Dammages are given upon both the Issues this is erroneous 31. Jan. 1649. Hill B. S. For here are Dammages given for a matter which is not rightly tried for want of joyning a good Issue to bring it in question An affirmative on the one part and a negative on the other part although it be but an implied negative do make a good Issue 15. Maij. Pasc 1650. B. S. For an implied negative doth deny what is affirmed although not so plainly as an expresse negative When a Plea is pleaded to the Plaintiffs Declaration and the Plaintiffs Attorneys hand is set to this Plea then the Issue is joyned betwixt the Plaintiff and the Defendant and not before 6. Feb. 1650. B. S. For then both parties are agreed of the matter in question betwixt them Judgement Upon a Recovery in any Action where the Plaintiff doth declare for a thing done vi armis the Judgement ought to be entred with a Capiatur for a Fine for the King But in an Action upon the Case where the Plaintiff is not to declare with a vi armis there the Judgement against the Defendant ought to be that he be in miscricordia 21. Car. B. r. The Capiatur which is imprisonment of the Party and the Fine for the King are for the breach of the Publick Peace which every Action vi armis doth imply But Trespasses on the Case do not so and therefore there the Party is only to be amerced and not to be imprisoned or fined Where there are several Judgements against the Defendant one of those Judgements may be reversed as erroneous and yet the other Judgments stand in force 21. Car. B. r. This is meant where there are several Judgements upon one Record All Judgements given in any Court of Record ought to be entred in Latine And if they be in English they are reversable by a Writ of Errour 21. Car. B. r. This is now altered by the late Statute that enacts all proceedings in Law to be in English No Councel ought by the Rules of the Court to move any thing in arrest of Judgement except the Roll wherein the Judgement is entred or the Postea be in Court 22. Car. B. r. That the Court may be satisfied that the matter moved in arrest of Judgement is truly recited from the Record There is difference between a customary Judgment and a Judgement given according to the Common Law Trin. 22. Car. B. r. It is sufficient matter for the Defendant to move in Arrest of Judgement to prove that he had not sufficient notice given unto him of the trial before the trial according to the Course of the Court. 22. Car. B. r. Hill If a Judgement be given which is erroneous and the Plaintiff do take out a Scire facias upon that Judgement and have a Judgement upon that Scire facias The Judgement upon that Scire facias is erroneous also Mich. 22. Car. B. r. For if the foundation be naught that which is built upon it must needs fall And here the first Judgement is the ground of the second A Judgement which is given contrary to the Verdict which was found in the Cause is a void Judgement Mich. 22. Car. B. r. For the Judgment is to be warranted by the Verdict and is but the affirmance of the Verdict and therefore it must not contradict the Verdict The COurt will not reverse a Judgement given upon a Nihil dicit and by the Rules of the Court but by the Consent of the Plaintiff and the Defendant the Court will grant a Repleader in the Case Mich. 22. Car. B. r. If a Verdict be given after the term no Judgement can be given upon that Verdict untill the next Term following Mich. 22. Car. B. r. 23. Car. B. r. For such proceedings in the Law ought not to be in the Vacation time but in Term time For the Judgement is the Act of the Court and the Court sits not but in Term. If a Judgement be obtained but the Plaintiff doth take out no Execution upon this Judgement in two whole years next after the Judgement given The Plaintiff cannot then take out Execution untill he have revived this Judgement by a Scire facias which Writ he may have without motion by the course of practice of the Court but if there be an old Judgement upon which no Execution hath been taken out such a Judgement cannot be revived by a Scire facias without a motion and leave of the Court Mich. 22. Car. B. r. But the Court doth not use to deny a Scire facias in such a case If the Defendants Attorney do enter a Plea for his Clyent in the Office the Plaintiffs Attorney cannot enter a Judgement against the Defendant upon a Nihil dicit or for want of a Plea although the Plea be not given unto him by the Defendants Attorney Mich. 22. Car. B. r. and Pasc 24. Car. B. r. For the Office is the place where the Attorneyes on both sides are to inform themselves of the proceedings in their Clyents Causes and the delivery of Declarations and Pleas c. by one Attorney to another in their Clyents Causes is rather matter of courtesie and civility than of any necessity or duty Four days after the Plaintiffs Attorney doth bring the Postea into the Court he may enter Judgement for his Clyent by the course of the Court Mich. 22. Car. B. r. Except the Defendant doe then or before move something to the Court to arrest or stay the Judgement Where a Judgement is arrested only for mispleading there the Court will grant a Repleader Mich. 22. Car. B. r. A Judgement was reversed in this Court for tautology used in it Mich. 22. Car. B. r. That is for repeating the same thing over and over For the Law will not suffer Barbarismes in the proceedings thereof If a Judgement be unduly obtained and sufficient proof be made thereof unto the Court the Court will vacate the Judgement and restore the party damnified by it to be in the same Condition that he was in before the Judgement Mich. 22. Car. B. r. Without putting him to a Writ of Errour Pasc 22. Car. B. r. For the Court will not be made a stale to do any person injury If one will take advantage of a Defeasance of a Judgement to avoid the Judgement whereupon it was made he must plead this Defeasance in Court otherwise the Court cannot take notice of it Mich. 22. Car. B. r. For the Defeasance is a private thing between the Parties and no part of the Record A Judgement in an Action of Detinue is given conditionally that is to say that the Plaintiff recover the thing it self which is detained if it may be
Mich. 23. Car. B. r. But Q Whether they will grant it because by the Writ of Error their hands are foreclosed but now by the late Act a Writ of Error is no Supersedeas and so the Law in this point is altered In a Judgement given for the Plaintiff to recover a sum of money the sum must not be written in figures for if it be it is error but it must be expressed in words at length Mich. 23. Car. B. r. For a Judgement consists in words and words are made of letters and not of figures which can spell nothing If a Judgement be given upon an Issue tryed in a cause wherein there is also matter of Law in dispute upon another Issue in that cause before the matter in Law be determined yet the Judgement is good Hill 23. Car. B. r. Upon the Affirmance by the Parliament of a Judgment given in this Court and removed by a Writ of Error brought in Parliament to reverse this Judgement the Parliament useth to have a Remittitur entred upon the Judgement Roll to send it back into this Court that this Court may award Execution upon the Judgement Hill 23. Car. B. r. For Execution ought alwayes to Issue out of that Court where the Judgement was given If a prisoner which is Endicted for Felony will not plead to the Endictment he is by the Law to be pressed but if a prisoner endicted for Treason will not plead at all to the Endictment or answers impertinently and not to the purpose judgement shall be given against him as if he were found guilty Pasc 23. Car. B. r. In Sir John Stowels Case as I remember If there be not four dayes of a Term to come after a Postea is returned in Court before the Term be ended so that the Defendant cannot have four dayes liberty to speak in Arrest of Judgement as by the course of the Court he ought to have there ought not to be any Judgement given in the cause untill the next Term after that the Defendant may have so much time to speak in Arrest of Judgement as he ought to have Pasc 24. Car. B. r. If a Judgement be but seven years old the party may by the course of the Court have a Scire facias to revive it without moving of the Court for it and if the Judgement be under ten years old the party may move for a Scire facias to revive it at the side Bar but if it be ten years old or more a Scire facias to revive it must be moved for in Court Pasc 24. Car. B. r. One may speak in Arrest of a Judgement given upon a nihil dicit at any time during the same Term that the Judgement was obtained Pasc 24. Car. B. r. For the Defendant is more favoured in a judgement given against him upon a nihil dicit then where a Judgement is given against him upon a Verdict because in the former Case he makes no defence but in the latter case it is intended he hath made his full defence Where one entire Judgement is given against two several persons and one of them is an Infant the whole Judgement is void Trin. 24. Car. B. r. For it being void to the Infant and being an entire Judgement which cannot be divided it must necessarily be void as to the other and so void in toto If a peremptory rule be given for the Defendant to plead at a certain day if he do not plead accordingly the Plaintiff may enter Judgement against him without any further moving of the Court Trin. 24. Car. B. r. For it was the favour of the Court to give him that day to plead and if he make no good use of it it is his own fault and the Court will not further delay the Plaintiff If the Plaintiff do demur to the Defendants Plea and the Defendant do joyn in the demurrer if the Plaintiff will not maintain the demurrer Judgement shall be given against him Trin 24. Car. B. r. For thereby it is implyed that he confesseth the Defendants Plea to be good and consequently that he hath no cause of Action That which a Judge of this Court doth act in his Chamber as a Judge of this Court is accounted to be done in Court Trin. 24. Car. B. r. For it is in order to the proceedings in the Court Q. Where a Judgment is entire it cannot be reversed in part and stand good as to another part but if it be not an entire Judgement it may Trin 24. Car. B. r. For an entire Judgment cannot be divided to make one part of it good and another part of it to be erroneous If the Plaintiff do give the Defendant two rules for him to plead according to the course of the Court and the Defendant do not plead when the time of those two rules are out the Plaintiff may enter a Judgement against him upon a nihil dicit but not before Mich. 1644. B. r. If a man bring an Action of Debt against two Executors and they plead they have not Assetts and thereupon Issue is joyned and it is found that one of the Executors had Assetts at the time of the Action brought but that the other Executor had not Assetts the Plaintiff shall have Judgement to recover the Debt against that Executor who was found to have Assetts and a nil Capiat per billam shall be entred against the Plaintiff as to the other Executor who was found to have no Assetts Mich. 24. Car. B. r For the possession that one Executor hath of the Testators goods is not the possession of the other Executor It is against the course of practice in this Court to admit the principal to acknowledge a Judgement for his Bail but in the Common Pleas they use to admit it Mich. 1649. B. S. But it is said that the Common Pleas will not admit it now since the rules of regulation made If in an Action of Trespass and Ejectment brought to try the title of the Land the owner of the Land whose title is concerned will not save the party that is made Ejector harmeless from all prejudice that may befall him by reason of the Suite he may confess Judgement unto the Plaintiff for the Land in question Mich. 1650. B. S. For to avoid further trouble and charge by reason of the suite which concerns him not either in gaine or loss If a Judgement is given which is not warranted by the Verdict upon which it is given that Judgement is not good Mich. 1649. B. S. If a Judgement given in an inferior Court be not according to the ancient form of Judgements given there such Judgement is erroneous and this Court will reverse it upon a Writ of Error brought Pasc 1650. 24. Maii. B. S. If an Action of Trespass or Trover and Conversion be brought for divers several things and the Verdict doth finde that the Defendant had but some of the things for which the Action was brought yet the
Jury doth give costs and dammages for all the things laid in the Declaration if the Plaintiff will release his costs and dammages for those things which were not found he may have Judgement for the other things which are found Mich. 1649. B. S. It is dangerous to take a Judgement acknowledged in the vacation as of a preceding Term and it ought to be made a Judgement of the subsequent Term. Mich. 1649. B. S. Yet it is common practice to do it If one be Out-lawed in an Action brought upon a Jugdment by a nihil dicit and that Out-lawry is reversed by a Writ of Error the Judgement is also to be reversed Mich. 1649. B. S. For it seems one may not be twice Out-lawed upon one Judgement which might be if the Judgement should not be reversed for the Plaintiff might bring a second Action upon the same Judgement and Out-law the Defendant again If one take a Judgement he cannot consent to vacate it Mich. 1649. B. r. But he may acknowledge satisfaction upon record If the Defendant in an ejectione firmae will not plead according to the rules of the Court Judgement ought to be entred against him by the ancient Rules of the Court without moving of the Court and the moving for it is grown in use but of late times and it is a new charge brought upon the Clyent to put him to this motion and there was no inconvenience in the old way and therefore this order is to be set up in the Office and to take effect the next Term and in the mean time the Clyents to have notice of it Hill 1649. 23. Jan. B. S. By Rolle Chiefe Justice A Judgement was reversed because it was given for more then was demanded in the Declaration Pasc 1650. 3. Maii. B. S. A Judgement was reversed for these errors because the time when the Judgement given was in figures 2. Because the sum recovered was expressed in figures 3. The venire facias was with an c. And 4. the cause of Action did not appear by the Record to be within the jurisdiction of the Court where the Judgment was given 1649. Hill B. S. This was a Judgment given in an inferior Court A Judgement was reversed because it was entred thus Ideo consideratum est ad eandem curiam whereas it ought to be per eandem curiam Hill 1649. 30. Jan. and 1. Feb. For it might be considered at the Court which is onely the place where the Court is held and yet not be the Act of the Court. After an Issue is joyned to be tryed by the Plaintiff and the Defendant the Plaintiff may if he will without going to tryal accept of a Judgement from the Defendant without any Verdict in the Case Pasc 1650. B. S. 24. Maii. For the Defendant is not prejudiced by it if he will acknowledge the Judgement and the Plaintiff could have recovered no more if he had had a Verdict and may waive his costs if he please If a thing be entred in a Judgement which is not mentioned in the Plaintiffs Declaration upon which the Judgement is given the Judgement is not good Pasc 1650. B. S. Judgement was given against one of not sane memorie and held good for by Rolle Chief Justice the Defendant may bring a Writ of Error to reverse the Judgement and Assigne this for error This was in the Case of Disne and Grigson Trin. 1650. B. S. 26. Junii A Judgement ought not to be entred untill the costs be taxed and the Judgement Signed by the Secondary of the Office 2. Julii 1650. Trin. B. S. A Rule of Court was made upon a motion at the Bar that the Secondary should enter a Judgement in a Cause wherein a Tryall was to be had as a Judgement of the Term next preceeding the Term wherein the Tryal was to be and that the Secondary should express in the Rule that the Rule was made by the consent of the Plaintiff and of the Defendant in the Cause 2. July 1650. B. S. For consensus tollit errorem and otherwise the Court would not have made such a Rule This Court will not admit the principal in an obligation to suffer a Judgement for his suerties that are bound with him in an obligation but the Court of Common Pleas doth usually admit it 12. Nov. 1650. B. S. By Rolle Chief Justice But now they have altred that course in the Common Pleas as it is said and in truth it was not reasonable for though a man may be contented to be a Suerty in an obligation for another yet it followes not that he would be contented to be liable to a Judgement for him whereby his goods may be swept away by an Execution before he is aware of it The course for one to acknowledge a Judgement is for him that doth acknowledge it to give a general Warrant of Atturney for any Atturney or some particular Atturney of that Court where the Judgement is to be acknowledged to appear for him at his suite who is to have the Judgement acknowledged unto him and to receive a Declaration from him and to plead Non sum informatus and thereupon Judgement is entred for want of a Plea 14. Nov. 1650. B. S. A Judgement upon a nihil dicit is not a perfect Judgement untill the Writ of Enquiry of dammages taken out upon this Judgement be executed 16. Nov. 1650 B. S. For the dammages are to be exexpressed in the Judgement which cannot be known what they are untill the Jury Empanelled by the Sheriff to enquire of the dammages have found them When a Plea is pleaded if the Atturney on the other side will not set his hand unto it as he ought and joyn in the Issue Judgement may be entred against him by the Defendants Atturney 6. Feb. 1650. B. S. Q. If a Judgement in an ejectione firmae be quod recuperare debeat and a Writ of Error be brought to reverse this Judgement this Writ of Error is not well brought but must abate for here is no Judgement given for the present for then it should be recuperet in the present Tence Trin. 1651. B S. By Rolle Chief Justice a Judgement ought not to be entred for want of a Councellors hand set unto a special Plea as by the Rules of the Court there ought to be without first acquainting of the Secondary of the intention to enter Judgement for such a Plea without a Councellors hand is a Plea and it may be there needeth not a special Plea and the party must not be his own Judge whether it be good or no. B. S By Rolle Chief Justice in an Action of Trespass brought quere vi armis a Capiatur ought to be entred upon the Judgement where the Judgement is given before the Act of Oblivion was made but if Judgement be to be given in an Action brought for a Trespass done since the Act of Oblivion was made and which is pardoned by the Act pardonatur ought to be
the Court of Admiralty do draw the matter ad aliud examen that is to try it by the Civil Law Trin. 23. Car. B. r. And therefore this Court will use their Authority at any time to stay their proceedings in the Admiralty although the Defendant have by his incautelous pleading allowed their Jurisdiction It is not necessary for him that Libels in the Court of Admiralty to shew in his Libel that the Common Law bath no Jurisdiction of the matter for which he Libels but he that prayes a Prohibition to the Admiralty in this Court must suggest something wherein in respect of the Cause depending there and for which he prayes the Prohibition that Court hath no Jurisdiction of the Cause Hill 23. Car. B. r. For the Admiralty cannot determine whether the Common Law have Jurisdiction or not and therefore it would be a vain allegation but this Court can judge of the Jurisdiction of the Courts of Common Law and can determine whether other Courts do intrence upon their Jurisdictions or not If the Court of Admirality do hold plea of any matter which is not maritime although the thing were done upon the Sea yet this Court will grant a Prohibition to stop their proceedings Hill 23. Car. B. r. For the Court of Admiralty hath only Jurisdiction in maritime Causes viz. such as only concern sea-affairs and not of all matters done at Sea as Contracts c. the Tryal whereof belongs to the Common Law This Court will grant a Prohibition to the Admiralty if there be cause for it although that a consultation have been granted in the Court of Common Pleas in the same cause Hill 23. Car. B. r. This Court ought not to deny the party a Prohibition that doth pray it if there appear cause for a Prohibition for it is not a thing arbitrary or ex gratia curiae to grant it or not to grant it Hill 23. Car. B. r. For to deny it were to deny Justice to the party in denying him the benefit of the Common Law which is every free-born English mans birth-right A Prohibition may be granted to the Spiritual Court after a sentence given in the Cause in that Court for which the Prohibition is prayed if there be cause but the Court will not do it untill they have heard Councell speak on both parts to inform their consciences although before a sentence they use to grant it upon a bare suggestion of the party Tuesday 2. July 1650. B. S. and Pasc 1652. B. S. For a sentence in an Ecclesiastical Court is in the nature of a Judgement given at the Common Law and presumed to be given upon mature deliberation and therefore this Court will not but by good advice make a sentence there given void or hinder the execution of it A Prohibition doth not lie to the Court of Admiralty in the cases of Felony yet if there be cause this Court will grant a Certiorari to remove the Cause hither By Rolle Chief Justice in Dothicks Case 29 Oct. 1650. B. S. Q. Tamen quia curia advisare vult Pleas and Pleadings If an Action be grounded upon a Statute there the Statute must be precisely set forth in pleading but if a Statute recited be but an inducement to the action there it is not necessary to recite the Statute precisely Hill 21. Car. B. r. For if the Statute be not precisely recited the Defendant cannot tell how to plead to the Statute As a plea in bar may go per partes so may in like manner a plea pleaded in abatement of a Writ Hil. 21. Car. B. r. A Plea is then said to go per partes as I conceive when one part of it goes to one part of the Declaration and another part of the Plea answers another part of the Declaration One that appears in Court upon a Habeas Corpus ought to plead the same Term wherein he comes in Hill 21. Car. B. r. If the Defendant do not plead according to the Rules of the Court so that the Plaintiff may enter Judgement upon a Nihil dicit yet if after the Rules are out the Defendant do put in his Plea into the Office before the Plaintiff hath entred his Judgement this Plea is to be accepted and the Plaintiff ought not then to enter his Judgement and therefore it behoves Attorneys to be vigilant in their practice 21. Car. B. r. and 23. Car. Hill For a Judgement upon a Nihil dicit is for want of a Plea but in this Case here is a Plea and if such a Judgement should be entred it would be in facto an irregular Judgement If the Defendant in an Ejectione firmae do not plead in time according to the Rules of the Court the Plaintiff may after the Rules for pleading be out move the Court to set a short day for him to plead which will be granted if the Land lie neer at hand and if the Defendant do not plead at the time set by the Court the Plaintiff may enter Judgement upon a Nihil dicit 21. Car. B. r. But now such motions are not usual for Judgement may be entred of course A forraign Plea is to be put in upon Oath of the Defendant that is he must swear his Plea is true or else such a Plea is not to be received Mich. 22. Car. B. r. Mich. 24. Car. B. r. A forraign Plea is when the Defendant doth plead such matter that if it be true the cause cannot be tried in this Court and in regard that thereby the Defendant doth endeavour to hinder the proceedings of this Court and to delay the Plaintiff therefore the Court will make him swear his Plea to be true that the Court may not be deluded nor the Plaintiff trifled with by a false Plea and if he will not swear his Plea to be true the Plaintiff may enter Judgement for want of a Plea Trin. 1650. B. S. If an Action of Debt be brought upon an erroneous Judgement the Defendant may plead Null tyel Record that is that there is no such Record as he frames his Action upon Mich. 22. Car. B. r. For that which is erroneous is accompted in Law as null and void If the Defendant do plead a dilatory Plea the Court at the Plaintiffs motion will order him to plead such a Plea as he will stand to Mich. 22. Car. B. r. For the Law favours not delayes whatsoever is vainly babled by the ignorant to the contrary And if he be ordered to put in a Plea to which he will stand and he do it accordingly if such his Plea be not good the Court will not permit him to amend it but the Plaintiff shall take advantage of it by demurring upon it or otherwise as he shall be advised In any Action wherein the Plaintiff in case he recover shall only recover Dammages the Defendant may plead in Barre to this Action an arbitrement with satisfaction thereupon made unto the Plaintiff Mich. 22. Car. B. r. For if the Plaintiff have
ruled to put in a better Plea but upon over-ruling of a Plea which is Pleaded in bar of the Action Judgement shall be given against the Defendant for such a Plea is peremptory Trin. 24. Car. B. r. But a Plea in abatement is onely dilatory and is not to bring the matter in question to an Issue but to delay the Plaintiff If a Plea be put into the Office in due time it is well enough although it be not delivered to the Atturney of the Plaintiff Trin. 24. Car. B. r. So that he may not enter Judgement for want of a Plea In an Action of Debt brought for Rent upon a Indenture of Demise for years the Defendant may Plead payment without shewing the Deeds for the Lease shall be intended to be in being at the time of the Action brought Trin. 24. Car. B. r. A colourable Plea ought to be entred but that which is no Plea ought not to be entred Trin. 24. Car. B. r. For a Colourable Plea is a Plea untill it be over-ruled Q Whether one may Plead a Lease for years by Indenture without shewing the Indenture Trin. 24. Car. B. r. In an Action of Debt brought upon an Obligation the Defendant is not bound to Plead untill he have Oyer of the Condition of the Obligation Trin. 24. Car. B. r. But he may Plead without Oyer of it if he please and if he do Plead without Oyer he cannot afterwards have Oyer of it If one Plead a Plea that is not good and the Plaintiff doth demur upon it he cannot afterwards amend that Plea without the Plaintiffs consent Mich. 24. Car. B. r. For the Defendant shall not take advantage of his own ill Pleading to delay the Plaintiff and to put him to more trouble then by the Law he may do A Dilatory Plea ought to be Pleaded upon the giving of the first rule in the Office for the Defendant to Plead and a Plea in the chief must be pleaded after the second Rule given in the Office for the Defendant to Plead and this is the reason that Judgement cannot be entred against the Defendant for want of a Plea untill the time given by the two rules to Plead be past Mich. 24. Car. B. r. The ancient course of practice was for the Defendant to put in his Plea into the Office before that the Defendants Atturney did deliver it to the Plaintiffs Atturney Mich. 1649. B. S. The Master of the Office of the Upper Bench ought not to suffer the original Pleas to be delivered out of the Office but onely Copies of them Mich. 1649. B. S. For by the Pleadings in the Office are the Pleadings made up for the Issue to be tryed and if any question arise about altering of them they are to he examined and rectified if any alteration be by the Pleas in the Office A Plea that is grounded upon a Statute if it be not good is not helped after a Verdict Mich. 1649. B. S. For the Statute being the foundation of the Plea if it be not well laid the Plea is naught in the very substance of it and such Pleas are not helped by the Statute of Jeofailes If an Action be brought in this Court to recover Lands and the Defendant emparls yet he may as it hath been held Plead that the Lands in question are ancient Dernesne and demand Judgement whether this Court may hold Plea of them but if he plead to the Defendant and make a full defence he cannot after that plead to the jurisdiction of this Court Mich. 1649. B. S. 8. Ap. 1650. B. S. Pasc Q. For it hath been doubted and held it could not be after Imparlance Pasc 1650. 4. Maii. If the Plaintiffs Atturney deliver an imperfect Declaration to the Defendants Atturney and he accept of it yet he is not bound to Plead untill the Plaintiff have perfected his Declaration Mich. 1649. B. S. For untill it be perfected it is no Declaration Q. Whether he may not demur to it If it be doubtful between the parties whether a Plea be good or not it cannot be determined by the Court upon a motion made that the Court would deliver their opinions whether it be good or not but there ought to be a Demurrer upon the Plea and upon hearing of arguments thereupon the Court is to judge whether that Plea be good or bad Hill 1649. B. S. Jan. 26. If an indenture be onely Pleaded by way of inducement it is not necessary to say per indenturam suam in curia hic prolat but if the party do derive any title unto himself by the indenture Pleaded he must Plead it so Hill 1649 B. S. Jan. 26. That the Court may judge whether the title he makes by the Indenture be warranted by it and that the other party may consider what answer to give unto it If an Action be laid in London and be afterwards removed by a Habeas Corpus into this Court the Defendant ought to Plead the same Term the cause is removed and proceed to a tryal Hill 1649. B. S. 9. Feb. For the Court will not grant the party to take any advantage by the removing of the cause hither to delay the other party in the course of his proceedings If an immaterial Issue be joyned it is not helped by the Statute of Jeofailes but there ought to be a repleader Pasc 1650. 5. Maii B. S. vid. Issue A Plea that the Plaintiff hath not taken the Engagement according to the late Act ought to be Pleaded in this manner petit advisamentum curiae si volunt procedere quia querens non subscripsit engageamento And when the Plaintiff hath subscribed the Engagement and made it appear to the Court that he hath done it it shall be entred upon the Roll Quod querens subscripsit engageamento and then the Plaintiff may proceed It may also be averred upon the Roll that the Plaintiff hath not taken the Engagement although he have Judgement in the cause and thereby Execution shall be stayed untill he have subscribed it Trin. 1650. B. S. 3. July Now all this Pleading is out of doors by the taking away the Act made for the subscribing of it by an order of the Protector and his Councel If the Defendants Plea do not answer all the matter contained in the Plaintiffs Declaration it is no good Plea but the Plaintiff shall have his Judgement intire against him for want of a Plea although the Declaration be nought in some part of it Hill 1650. B. S. 31. Jan For although the Defendant was not bound to have Pleaded to the Declaration but might have Demurred unto it for the insufficiency of it yet the Defeudant not doing it it shall be intended he had no cause for it and then not Pleading Judgement may be entred against him When a Plea is Pleaded the Atturney ought to set his hand to the Plea and then the Issue is joyned and if he will not set his hand to the Plea Judgement may be entred
for want of a Plea Hill 1650. B. S. 5. Feb. But if it be a special Plea there must he a Counsellors hand set unto it If one be sued by original Writ he must Plead the same Term in which the original is returned Hill 1650. B. S. 6. Feb. If one be compelled to alleadge double matter in his Plea yet if he do insist but upon one of them the Plea is not double Trin. 1651. B. S. For upon that matter onely upon which it is insisted upon shall issue be joyned If the Plaintiffs Atturney will consent unto it the Defendant may waive his Plea without moving the Court. By Rolle Chief Justice Trin. 1651. B. r. But if he will not consent it cannot be done without moving the Court. A special Plea is a Plea although it have not a Counsellors hand set to it and therefore Judgement cannot be entred for want of a Plea although a Councellors hand be not to it without acquainting the Secondary of the Office and obtaining his leave to do it for it may be there was no cause for a special Plea and the Plaintiff must not be his own Judge Mich. 1651. B. S. Per Rolle Chief Justice The Prayer of the priviledge of the Court is not properly a Plea for it was anciently demanded by Writ although it be now usually allowed upon the Prayer of the party who claimes it By Latch Apprentice in the Law If a Declaration be delivered to the Defendants Atturney or put into the Office after the Essoigne day of the Term the Defendant cannot be compelled to Plead that Term but he may Emparle till the next Term. 1652. B. S. For the Term was begun when the Declaration was delivered and so it cannot be accounted a Declaration of the proceeding Term. Pardon He that will take the benefit of a general Pardon ought to plead the Statute by which the general Pardon was granted 21. Car. B. r. 8. Ed. 4. 7. 4. H. 7. 8. That the Court may judge whether his offence be Pardoned or not One that is found guilty of man-slaughter must sue out his Pardon or else his burning in the hand cannot be dispensed withall for man-slaughter is Felony 23. Car. B. r. Penalty This Court will not give the Penalty of an Obligation to the Obligee which was onely made to perform the Covenants of an Indenture 21. Car. B. r. Because the party may recover upon the Covenants of the Indenture whatsoever he can be damnisied by the breach of them and the Bond was given for no other intent but to tye the Obligee to perform the Covenants or to satisfie for the breach of them and not that the Obligee should take advantage of the penalty of the bond which it may be is a great sum for the breach of a Covenant whereby the Obligee is very little damnified Perjury A false Oath taken before a person that hath not authority by Law to give the party his Oath in that cause wherein he is deposed is not Perjury 21. Car. B. r. For the Oath is Coram non judice An Endictment for Perjury may be preferred against one for taking a false Oath rashly and for want of consideration although the party that took the Oath did not do it maliciously and he may be convicted thereupon but the fine ought to be more moderate where the Perjury is committed out of rashness onely then where it is committed maliciously Trin. 24. Car. B. r. For though the Law doth not tollerate offences though they be committed out of infirmity yet they have regard to the weaknest of man and will not therfore punish them so severely as offences committed upon premeditated malice to the party against whom they are committed Process and Proceedings in Law All legal Proceedings ought to take commencement by original Writ or by Endictment or by information 21. Car. B. r. Or by Latitat which is the original Process of this Court and is in the nature of an original although it doth suppose a former Writ in the case for which it is issued forth If a Cepi Corpus be returned in one Term the Defendant ought to Plead the next Term after the return so that the Plaintiff may go a tryal the same Term and so it is if the Defendant be brought into Court by a Habeas Corpus or an alias or pluries Habeas Corpus Mich. 22. Car. B. r. After the Plaintiff is non-suit he must begin his Action again and cannot proceed upon his old Declaration Mich. 22. Car. B. r. For by the non suit the cause as to that Action is determined and the parties have no day in Court After a Verdict there ought not to a repleader but the Plea is discontinued Mich. 22. Car. B. r. Where the Defendant brings a Writ of Error to reverse a Judgement given against him and hath a Supersedeas to stay Execution upon the Judgement directed to the Sheriff of that County where the Execution is to be done and yet he is taken by the Sheriff by vertue of an Execution taken out upon this Judgement upon moving of the Court they will grant him a Writ of Supersedeas to Supersede this Execution quia emanavit erronice Mich 22. Car. B. r. For such Execution ought not by Law to have issued out much less to have been executed A Latitat is called a Bill of Midlesex Mich. 22. Car. B. r. But not all Latitats but onely such as are directed to the Sheriffs of Midlesex as I conceive Where the Defendant did tender unto the Plaintiff the moneys for which the Action is afterwards brought against him before the Action was brought and the Plaintiff refuseth them and will notwithing sue the Defendant for them upon a motion and making this appear to the Court the Court will order the money to be brought into the Court and will stay the Plaintiffs Proceedings Trin. 23. Car. B. r. For the Court will not countenance any one to sue another who may have right done to him without suit for this were to encourage men to be vexatious The continuances of Processes in inferior Courts ought to set forth the manner of the continuances and not to express them generally Trin. 24. Car. B. r. The Proceedings in inferior Courts are not so regular and formal as the Proceedings are in the Courts at Westminster but are entred only in short notes Pasc 24. Car. B. r. Pasc 1648. B. S. If one be arrested by Process of this Court and be thereupon in Custody and the Plaintiff do not declare against him in three Terms after the Defendant is by the rules of the Court to go out upon common Bail Trin. 24. Car. B. r. For the Court will presume the cause of Action is not very great because it is so long before he declares and they will not compell him to put in special Bail but where it appears the cause requires it The continuances in the Process of this Court are not entred untill the Judgement given in the
Robes and put off their Robes and there is another like it by the Common Pleas and it is called the side bar because it is on one side of the Court and not in the face of it A Scire Facias to revive a Judgement ought not to be granted if the Record be not in the Court where the Judgement was obtained Trin. 24. Car. B. r. For the Record is the Warrant for the Scire Faias A Scire Facias ought to be directed into the County where the original Action was brought upon which the Judgement to be revived by the Scire Facias was obtained Trin. 1650. B. S. 23. Car. B. r. A Scire Facias ad audiendum errores is not well brought before the Record of the Judgement be certified into the Court to reverse which the Writ of Error was brought 21. Car. B. r. For there is no record in Court to warrant the granting of it If one sue out two Writs of Scire Facias one after the other there ought to be seven dayes distance between the first and the second Scire Facias Mich. 21. Car. B. r. The return of the second Scire Facias ought to bear date at the return of the first Scire Facias Mich. 21. Car. B. r. A Scire Facias ought to be as short as possible because it is the nature of Writs to set forth things very briefly and a Writ is therefore called a brief from the Latin word breve which signifies short or compendious Mich. 21. Car. B. r. Of latter times it hath been used to make out a Scire Facias with a Fieri Facias or Writ of Execution comprised in it and both make but one Writ whereas anciently a Scire Facias and a Fieri Facias were two distinct Writs or Processes Trin. 22. Car. B. r. But they may make them distinct Writs at this day if they please A Scire Facias may be traversed before Judgement given upon it but after a Judgement there can be no traverse but a Writ of Error may be brought to reverse the Judgement if the Scire Facias was not good upon which it was grounded Trin. 22. Car. B. r. When a Judgement is reversed by a Writ of Error in this Court a Scire Facias shall issue against the Plaintiff in the Judgement reversed to shew cause why the Plaintiff in the Writ of Error whereby the Judgement was reversed should not have the moneys which were recovered and levyed upon him by vertue of the Judgement reversed Mich. 22. Car. B. r. A Writ of Scire Facias is not an orginal Writ but it is a Record at the time of the Caption before it is entred at Westminister and an Action may be brought where the Caption is Pasc 23. Car. B. r. In a Scire Facias brought upon a Judgement given in the Common Pleas it is necessary to shew before what Judge the judgement was given but it is not necessary to do it in a Scire Facias upon a Judgement given in this Court 23. Car. B. r. An old Judgement may be revived by a Scire Facias granted upon a motion to the Court but if a Scire Facias be taken out to revive an old Judgement without leave of the Court the Scire Facias is not good but is reversable Trin. 23. Car. B. r. For such a Scire Facias is not the Process of the Court. If one do not proceed upon a Writ of a Scire Facias within a year and a day after it was taken out he cannot after that time proceed upon that Writ but must sue out a new Scire Facias for the old Writ is discontinued Hill 1650. B. S. If an Administrator obtaines a Judgement for a Debt due to the Intestate and the Administrator doth afterwards dye Intestate and letters of Administration is granted to one de bonis non c. of him that dyed first Intestate this Administrator cannot have a Scire Facias to revive the Judgement obtained by the Administrator of the first Intestate but he must bring a new Action to recover that Debt Hill 1650 B. S. For he is no wayes privy to the first Judgement Statute He that will take advantage of a Statute by pleading it must shew in his pleading that he is within some Provison of that Statute if the Statute which he pleads be a particular Statute and not a general Statute 21. Car. B. r 25. H. 7. f. 1. For the Judges are bound to take notice of general Statutes which concern all the people but not of particular which do onely concern particular persons or places The Statute of primo Jac. which concerns Atturneys and Solliciters doth not extend to special retainers of Atturneys and Solliciters Mich. 23. Car. B. r. For that Statute is a general Statute and not a particular If an issue be joyned upon a Collateral point arising in the pleading and no place is alleadged whence the venue may come this fault is helped after a Verdict by the Statute of Jeofails but if the issue be not joyned upon a Collateral matter it is not helped by the Statute if no place be alledged The Statute which concerns the returning of Juries doth onely extend to Juries to be returned to any of the Courts at Westminster Mich. 23. Car. B. r. The Statute of 23. H. 8. c. 5. concerning Sewers was made for the ease and benefit of the people to wit the Defendants who are prosecuted upon that Statute and they may plead that Statute or not plead it at their election Hill 22. Car. B. r. If one acknowledge two Statutes upon his Lands one after the other and satisfie the former Statute and the Conusee of the latter Statute take out an extent upon the Lands this extent may be avoided untill the former Statute be avoided by a Scire Facias Hill 22. Car. B. r. For the Law is not to take notice of private acts done between the parties A Statute which is made onely in affirmance of the Common law that is that doth not enact any new thing but doth onely enact that which was provided for by the Common Law before the act made is nevertheless a Statute and may be pleaded as a Statute although the Defendant hath a plea at the common Law Pasc 23. Car. B. r. The ancient Statutes were made upon the Petition of the Commons in Parliament unto the King and passed not by Bill as now they do Pasc 23 Car. B. r. A Statute acknowledged upon Lands is a present duty and ought to be satisfied before an Obligation which is not so Mich. 23. Car. B. r. For a Debt due upon an Obligation is but a chose in Action and recoverable by Law and not a present duty It was held by this Court 5. Car. in Simons Case that the Statute of 1. Maria was repealed by the Statute of 1. Eliz. But Quaere for it was doubted by the Court whether it be repealed in the whole or in part onely Mich. 23. Car. B. r.
the cattel Mich. 23. Car. B. r. For one shall not be made a Trespassor against his will If a person or goods be rescued out of the hands of the Sheriff which he hath taken in Execution by vertue of his Office it is at his election to bring an Action upon the Case or an Action of Trespass vi armis against him that made the rescous Hill 23. Car. B. r. If one bring a meer Action upon the Case he may declare omitting the words vi armis but if the Action be a bare Action of Trespass there he must declare that the Trespass was committed vi armis Mich. 24. Car. B. r. For an Action of Trespass doth implye a breach of the peace and a capiatur is to be entred in the Judgement against the Trespassor for his fine to the King but in an Action upon the Case it is otherwise for there the Judgement is that the Defendant shall pay the dammages and be in misericordia Trespasses of several natures cannot be laid together in one Action Mich. 24. Car. B. r. Upon a recovery of Lands in an Action of Treft pass and Ejectment the Plaintiff may afterwards bring an Action of Trespass against the Defendant for the mean profits of the Land So it was held in the case between Wilmot and Holden Trin 1652. B. S. The mean profits are such profits of the Land as did grow due betwixt the time of the bringing of the Action and the time of the recovery An Action doth lye at the Common Law for the person for taking away of Tithes after they are severed from the Land Mich. 24. Car. B. r. To wit against the occupyer of the Land Q. tamen Tales Upon a Tryal at the Bar if the Jury do not appear full the Court cannot grant a Tales de circumstantibus but the Court upon a motion will grant a Tales returnable in some convenient time the same Term to try the cause Mich. 22. Car. B. r. 1650. B. r. For the Statute doth not extend to tryals at the Bar which did enable the making of a Tales A Tales de circumstantibus are so many persons which are returned to serve on Juries to supply the places of those that did not appear A Corporation Court cannot grant a Tales Pasc 23. Car. B. r. For the Statute doth not extend unto Corporations A Tales is not to be granted where the whole array or Jury is challenged for want of Hundreders but in such case the whole pannel if the challenge be made good is to be quashed and a new Jury is to be returned Mich. 1650. B. S. For a Tales consists but of some persons to supply the places of such of the Jurors as wanted of the number of twelve and is not to make a new Jury If the Sheriff take Bail of one for his appearance who is not Bailable by Law although the party do not appear an Action doth not lye against the Sheriff but the Plaintiff must proceed against the Sheriff by way of amercements Mich. 1650. B. S. 26. Nov. For in regard that the Sheriff ought not to have taken Bail though he have taken it yet it shall be accounted as if he had not taken Bail Terms The Issue Terms are Hillary Term and Trinity Term onely the other two Terms are not so called and the other Issue Terms are so called because in them are the Issues joyned and made up which are to be tryed at the Lent Assizes and the Summer Assizes which do immediately and respectively follow them Hill 22. Car. B. r. The four dayes in Term are the day of 1. Essoigne 2. Exception 3. Appearance 4. Return Hill 22. Car. B. r. All the Term in construction of Law is accounted but one day and therefore a Plea that is put in the last day of a Term is a Plea of the first day of the Term. Trin. 23. Car. B. r. Mich. 1649. B. S. The Term is said to begin upon the first Essoign day which is three dayes before the Courts of Justice do sit and not at the first day of sitting of the Courts Trin. 24. Car. B. r. Because some businesses of that Term do begin at that time The same day of the week that Michaelmas Term doth end the same day Hillary Term doth begin By Woodward Clerk of the Court Hill 24. Car. B. r. Toft and Croft A Toft is a place where an old house did formerly stand and it also signifies a decayed house not inhabited Pasc 23. Car. B. r. A Croft is a small peices or close of Land that lyes neer a dwelling house Pasc 23. Car. B. r. Trover and Conversion Where the Trover of goods is one County and the Conversion is in another County the Action brought for these goods may be laid in the County where the Conversion was for the Conversion of the goods is part of the cause of the Action Pasc 23. Car. B. r. For the very name of the Action is called a Trover and Conversion and not a Trover onely and the Action is brought as well for the Defendants converting of the goods to his own use as for the finding and deteyning of them Two causes of Action for a Trover and a Conversion cannot be joyned in one Action Trin. 23. Car. B. r. An Action of Trover and Conversion may be brought for goods although the goods for which the Action is brought do come into the possession of the Plaintiff that brings the Action before the Action brought Pasc 1651. 22. Ap. B. S. For the coming of the goods into his possession before the bringing of the Action for them doth not purge the wrong or make satisfaction for that which was done to the Plaintiff by the finding and converting the goods and so he hath still cause of Action although his dammages may not be very great Trust The Chancery will compell one to perform a Trust which he hath taken upon him except it be a Trust taken upon him for the benefit of an Alien Pasc 23. Car. B. r. For to compell that might in many cases prove prejudicial to the Common Wealth and repugnant to the Common Law The way of making conveyances by way of Trust was invented to evade the Statute of uses Pasc 23. Car. B. r. Cestuy que trust cannot take the profits of the Land setled by the Trust but hath onely his remedy for them in equity for the estate in the Land is onely in the party that hath the Trust Trin. 23. Car. B. r. Tenure Lands which are granted by the King to hold of him of his Manor of East Greenwitch in Kent in capite is a Tenure in Sorage and the words in capite in the grant are voide Trin. 23. Car. B. r. For those words are repugnant to the Tenure created by the grant Tender A Tender of Rent to save the forfeiture of a Lease ought to be a Tender of the whole Rent due at the time of the Tender without any deduction of Taxes of
for which the Action is brought Hill 23. Car. B. r. The Court will not change the venue in an Action brought upon an obligation Hill 23. Car. B. r. Because the Action is personal and transitory and it is at the election of the party to lay it where he pleaseth yet the rules of Court for the laying of personal and transitory Actions have not been very constant of latter times but the Courts do vary as they see cause A Judgment given in an inferior Court was reversed here by a Writ of Error because the Venire was Venire facias c. and not at large Hill 1650. B. S. But such a Venire in the Common Pleas is good For the constant course there is to enter the Venire briefly with an c. The Defendant may move to alter the Venue although the Plaintiffs Declaration be not perfect Mich. 1650. 25 Oct. B. S. For though it be not perfect in all things yet it may be so perfect that he understands where the Venue is laid and that is enough to ground a motion upon to alter it if it be laid where it ought not to be In an Action of Debt brought for Rent due for Land the Venue may not be laid out of the County where the Land lies for which the Rent is due for the Action is a locall action ratione terrae out of which the rent is issuing Hill 1650. B. S. 29. Jan. A Venue cannot be laid in Wales in a transitory Action the Cause whereof did arise in England because this would be to remove the Cause to be tryed out of the jurisdiction of the Court and then this Court can give no judgment in it Trin. 23. Car. B. r. The Venue cannot be changed after the Defendant hath pleaded although the Plaintiff have amended his Plea in a principall and materiall part of it after the Defendant put in his Plea and though the Defendant do imparle by reason of that amendment for all this makes it not a new Declaration 1650. B. S. A Venire out of an inferior Court ought to runne thus Ideo praeceptum est in eadem Curia or per candem Curiam Hill 1649. B. S. 30. Jan. But now those Latine words must be in English It is not necessary to insert the Names of the Jurors in the Venire facias although it was the antient course to do it Hill 1649. B. S. 4. Feb. So that antient forms may be altered upon good reason else not Where the Declaration is good but the Plea is uncertain and yet an Issue is joyned and tryed upon it this is a mis-tryall for there can be no judgment given upon it and therefore there must be a Repleader and a new Venire to summon another Jury to try the Cause again Hill 1649. B. S. 8. Feb. A Venire facias is oftentimes retorned before the Plea be entred and yet it is well enough Pasc 1650. B. S. 24. Maii. For the Plea is a Plea before it is entred so that there is an Issue to be tryed which is a sufficient warrant for awarding and retorning of the Venire A Venue is not to be changed in an Action of Debt brought for Rent or upon an Obligation or in an Action of Covenant or in an Action of Accompt Trin. 1650. B. S. 26. Junii Mich. 1650. B. S. 23. Nov. The Venire ought to be delivered to the Sheriff four dayes before the retorn of it if the Jury do dwell forty miles off and eight dayes if they dwell further off then forty miles from the place where the tryall is to be Pasc 1651. B. S. 13. Maii. If the Defendant do move to change the Venue upon Affidavit made that the cause of Action if any be did arise either in Kent or Surrey for example and not in London where the Action is laid the Plaintiff shall have his election to lay his Action either in Kent or in Surrey upon giving the Defendant notice in which of them he will lay it but shall not lay it in London 1651. B. S. The Attorneys are sworn not to lay personall Actions in forreign Counties but in the Counties where the causes of them did arise and the Statute doth also prohibit it for the laying them in forreign Counties doth put the people to charge for motions to alter the Venues into their proper Counties and therefore it is fit the Attorneys should observe it By Rolle 1650. B. S. But as yet the practice herein is unsetled and inconstant And it may be it is not setled because there might great inconveniences grow by setling of it and tying up the hands of the Court from doing that which the exigency of the case may require Verdict If there be severall ejectors of severall parcels of Land mentioned in a Lease of Ejectment the Jury ought to finde this matter especially Hill 21. Car. B. r. A Verdict which is found against a Record is a void Verdict Hill 21. Car. B. r. For a Record is of a higher nature and more credit is to be given unto it then unto a Verdict If a Verdict may be any wayes construed to make it good there ought not to be made a construction of it to destroy it and make it void Hill 21. Car. B. r. For the Law delights in the preservation of things and would not have things to be done in vain The Court will not take a Verdict by default except the Plaintiffs Councell do pray it Hill 21. Car. B. r. For the Plaintiff may choose whether he will take the Verdict or no and therefore the Court will not take it except he desire it If the Plaintiff doth fail in proving of his Issue the Verdict ought to be found for the Defendant except the Jury do know of their own knowledg that the Defendant is guilty Hill 21. Car. B. r. So that the Jury is not so tyed up by the evidence that they must alwayes give their Verdict according to it If one of a Jury that found a Verdict were outlawed at the time when the Verdict was found the Verdict is not good but may be reversed by error Hill 21. Car. B. r. For an out lawed person is out of the protection of the Law and is debarred from intermedling with any Civil affairs as a person excommunicated is from participating in Divine Ordinances If a Verdict be found for the Plaintiff and he will not enter it if the Defendant move the Court in it they will compell him to enter it and so it is where the Plaintiff doth refuse to enter a Verdict found for him upon the executing of a Writ of enquiry of Dammages Mich. 22. Car. B. r. For the Plaintiff ought to rest satisfied with what the Law gives him Or the Defendant may enter it himself if he will A Declaration that is not good is in many cases helped after a Verdict by the Statute of Jeofailes but where the Declaration doth not make it appear that the Plaintiff had some
Ports or to some other priviledged place to enjoyn them not to exceed their jurisdiction but this is not a remedial writ to the party that obtains it conducing any wayes to his obtaining of right in his cause depending there Trin. 22. Car. B. r. An Original Writ is not amendable if it be erronious in substance because he that takes it out may have a new original and so is not without remedy Hill 22. Car. B. r. Though the Writ be abated An original Writ which is defective in form onely is abateable if it be not amendable by the Statute as in some cases it is and in others not Hill 22. Car. B. r. If the Prerogative Court shall refuse to grant Administration according to the Testators will this Court may grant a Writ at the prayer of the party grieved to compell them to do it and the Countess of Bark-shires case 29. Jac. and the case of Saint Burien in Cornwell were cited to prove it Hill 22. Car. B. r. If one bring a Writ of Ejectment and pending the Sute he makes an entry into the Land for which the Action is brought the Defendant may plead this entry in abatement of his Writ Hill 22. Car. B. r. A Writ without a Teste is not good Hill 22. Car. B. r. For the time may be material when the Writ was taken out A Writ issuing out of any of the Courts at Westminster do not run that is are of no force within the County Palatine of Chester or other County Palatine Hill 22. Car. B. r. Because they have jura regalia within their jurisdictions and are not subject unto other jurisdictions The Sheriffs Bailiff cannot execute a Writ directed unto the Sheriff without the Sheriffs Warrant Pasc 23. Car. And if he do he is liable to an action Where the Sheriff is Judge of the Court a Writ which should otherwise have been directed unto him shall be directed to the Serjeants of the Mace Pasc 23. Car. B. r. That is in such places where there are such Serjeants After Judgement in a cause there can no Plea be pleaded in abatement of the Writ upon which the Action was commenced Pasc 24. Car. B. r. In a Writ of Dower the Tenant cannot plead bis petita in abatement of the Writ of Dower Pasc 24. Car. B. r. That is that the Defendant hath demaned her Dower by another former Writ depending for she can recover but once Q. In an Action of Debt it is a good plea in abatement of the Plaintiffs Writ to say that the Plaintiff hath received part of the Debt for which he Sues since his Action brought but it is no plea good in an Action upon the case Pasc 24. Car. B. r. Tria 24. Car. B. r. For in Debt the Plaintiff is to recover the whole Debt he declares for but in an Action upon the ease the Plaintiff is to recover no more then he can prove he is damnified by not paying of what he demands and the money received since the Action brought can but abate the dammages and doth not destroy his Writ for it was incertain at the bringing of Writ how much he was damnified The Writ directed to call one to the dignity of a Serjeant at the Law is a close Writ that is sealed up to signifie it is his duty to keep close his Clyents cause and not to reveal it but the Writ directed to one to call him to the place and dignity of Chief Justice or other Judge is an open Writ and not closed up to shew that his duty is to do open Justice unto all Mich. 24. Car. B. r. A Writ of Error brought by the Baile to reverse a Judgement given against the Principal onely is abateable and so is it by Rolle Chief Justice where the Judgement was given against the Principal and the Bail also Mich. 1649. Q. Tamen In the latter case If the party be sued to an Out-lawry upon an original Writ the Writ is determined by the Out lawry for it hath had its full effect which was to make the party to come in and appear and answer the Plaintiff or else to Out-law the Defendnat if he should not appear By Rolle Chief Justice Hill 1650. B. S. Where the Sheriffs Bond which he took for the Defendants appearance is put in Sute the Writ taken out to arrest the Defendant upon this Bond ought to be directed unto the Coroner because the Bond is to be sued in the name of the Sheriff Pasc 1650. B. S. 17. Ap. And so is accounted in Law to be a Party Writ of Enquiry of Dammages The Court will quash a Writ of Enquiry of Dammages and not suffer it to be filed if the Plaintiff do execute it without the giving of due notice of the execution thereof unto the Defendant and put him to take out a new Writ of Enquiry Hill 22. Car. B. r. If it do not appear to the Court by the Return or by some other way that a Writ of Enquiry hath been executed the Court will grant the Plaintiff a new Writ if he desire it if the former Writ do take no effect Mich. 22. Car. B. r. A Writ of Enquiry is to issue forth where a Judgement is had upon a nihil dicit or non sum informatus or upon a demurrer and not upon a Verdict and this Writ is to summon a Jury to try what Dammages the Plaintiff hath sustained by the Defendant in the cause because the dammages were not formerly assessed the matter not being tryed by a Jury Hill 22. Car. B. r. If there be error in a Writ of Enquiry of Dammages the Court upon the prayer of the party will grant him a new Writ but will not suffer the old Writ to be amended Pasc 23. Car. B. r. If a Writ of Error be brought in this Court to rereverse a Judgement given in another Court and the Judgement is affirmed in this Court this Court may grant a Writ of Enquiry of dammages if it was such a Judgement whereupon a Writ of Enquiry did lye Trin. 24. Car. B. r. If upon the executing a Writ of Enquiry of Dammages the Sheriff do refuse to swear and examine some of the Witnesses produced on either part and yet doth execute the Writ the Court will grant a new Writ to the party grieved for the old Writ was not well executed 1651. B. S. Way and High way There are three Wayes taken notice of to wit Alta Via Communis Via Via by prescription that is a High-way a Common Way and a Way by prescription Pasc 24. Car. B. r. If a High-way lye within a Parish the Parish is of common right bound to repair it except it appear that it be to be repaired by some other person either by reason of tenure or by prescription Mich. 1650. B. S. 24. Oct. If any person do enclose any part of a Way or waste adjoining to a High-way he thereby doth take upon him to keep the Way
it is a good Amercement but if it be grounded upon a Presentment which is absolutely void the Americement is also void Mich. 24. Car. B. r. Assignement The Assigning of the general Error upon a Writ of Error brought to reverse a judgement is to say that the Declaration is insufficient that judgement is given for the Plaintiff whereas it should have been given for the Defendant c. and it is not shewed for what reason it is so 21. Car. B. r. If one bring an Action of Debt upon an Obligation that was given for performance of Covenants upon supposition of breach of the Covenants he must Assign but one breach in that Action Trin. 22. Car. B. r. otherwise the Desendant cannot justifie or take Issue A Statute Merchant or Staple cannot be Assigned over to another Mich. 22. Car. B. r. If Lessee for yeers Assign all his Term to come in his Lease over unto another he cannot reserve a Rent for if he do such reservation is not good because the Lesse hath no interest in the thing by reason of which the Rent reserved should be paid Pasc 24. Car. B. r. 21. Ap. 1648. In the Case of one Leach and Davy Averment Where a Statute is recited there one may not Aver that there is no such Record for generally an Averment as this is doth not lie against a Record For a Record is a thing of a solemne and high nature but an Averment is but the Allegation of the party 21. Car. B. r. One may not Aver a thing contrary to the Condition of an Obligation no more then he may against a Record for the Condition is part of the Deed which shall be supposed to he made upon good deliberation and before Witnesses and not be contradicted by a bare Averment 7. No. 1650. B. S It was said by the Court that if one assume upon himself to do a future act and an Issue is joyned upon this promise whether he hath done this thing or no the party needeth not to Aver that he hath done it for the doing or not doing of it is Traversable and the Plaintiffe might have taken advantage upon the Defendants Plea if it was not true Avowry If one make an Avowry for two causes and can maintain his Avowry but for one of them yet it is a good Avowry 21. Car. B. r. One Avowry may be made upon two several titles of land though the Avowry is but for one Rent 6. Feb. 1650. Adjournment The Court is Adjourned by the Cryer of the Court after he hath made Oyes three times and the substance of the Adjournment is to give licence to all parties that have any thing to do in the Court to forbear their attendance and to take their ease till such a time precisely named and then to attend in Court again Every last day of the Term and every Eve of a day which is not dies iuridicus or a Law day wherof there is two such dayes in Mich. Term viz. all Saints and all Souls day and one a peece in Hillary Term Easter Term and Trinity Term viz. the day of the purification of our Lady in Hillary Term Ascension day in Easter Term and Saint John the Baptists day in Trinity Term the Court is Adjourmed and before the Statute for the proceedings of the Law in English it used to be done first in English and then in French two several times sitting the Court towards the latter end of the day a good space of time being between the first and second pronouncing of the Adjournment but since the Statute the Court is onely Adjourned in English A Jury which doth not appear full cannot be Adjourned for such a Jury is not accompted a Jury Hill 22. Car. B. r. The first Adjournment of the Court is about eleven of the clock and the last immediately before the rising of the Court. Administration The mother ought to have the Administration of the Goods and Chattels of her child before a son or a brother or a sister 22. Car. B. r. Trin. Where the payment of money would not be for the advantage of the Testator there the not paying of it cannot be pleaded to be to the retarding of the Administration of his Goods and Chattels Mich. 22. Car. B. r. All Actions which an Administrator can have is given unto him by several Statutes Mich. 22. Car. B. r. Where an Administration is granted by such a jurisdiction as the Law takes notice of it is not necessary to shew that the Letters of Administration were granted by the Ordinary of such a place but where the Law takes no notice of the jurisdiction of that Court where the Administration was granted the Letters of Administration must be so pleaded viz. per loci illius Ordinarium Mich 22. Car. B. r. Letters of Administration may be revoked by a Revocation without a seal Mich. 22. Car. B. r. The Ordinary ought not to repeal Letters of Administration which he hath duly granted but if they be unduly granted viz. to such a person who by Law ought not to have them he may revoke them Pasc 23. Car. B. r. One of the half blood is in as equal a degree of kindred to the Intestate to have Letters of Administration granted unto him as one of the whole blood is Mich. 23. Car. B. r. An Indebitatus Assumpsit doth not lye generally against an Administrator Hill 23. Car. B. r. Letters of Administration granted per Carolum Regem debito more adjudged to be well granted in that form Hill 24. Car. B. r. Where the parties that require Letters of Administration from the Ordinary are of equal degree of kindred to the Intestate there it is in the discretion of the Ordinary to grant them to which of them he pleaseth Pasc Mich. 24. Car. B. r. Where one bequeaths a Legacy to one of his kindred and the residue of his goods to another Administration ought to be granted to him to whom the residue of the goods are bequeathed Mich. 24. Car. B. r. Arrest If an Action of Debt be entered in any of the Counters in London a Serjant may Arrest the party without the Sheriffs Warrant Trin. 22. Car. B. r. A Clerk of the Court ought not to be Arrested for any thing which is not criminal because he is supposed to be alwayes present in Court and must answer the Plaintiff there and therefore he that doth Arrest him is punishable by the Court Trin. 23. Car. B r. One ought not to be Arrested upon every slight suspicion of Felony but there ought to be a good ground shewed for the suspition before he is to be Arrested for Fame Life and Libertie are precious things in the eye of the Law Mich. 1649. B. Sup. One that is not priviledged from Arrest by reason of his attendance upon his business in some Court of Justice or some other wayes priviledged by some special Rule or Order of Court may be Arrested in Westminster-Hall sitting the Courts
this debt at a day to come the party to whom he made this promise cannot bring his Action for the Debt untill the day be passed upon which he promised to pay it By Rolle Chief Justice and by German Justice for he said that the promise is a suspention of the Debt pro tempore 29. Jan. 1650. B. S. If one promise unto a woman that in consideration that she will marry with him he will intermarry with her this is a mutual promise and an Action lies by either party against the other for breach of it 18. Ap. 1650. B. S. Appeal In a Writ of Appeal all the pleadings ought to be in French Mich. 22. Car. B. r. This is since altred by the late Statute that Enacts all proceedings in Law to be in English If in an Appeal the Defendant plead in abatement of the Writ and the Writ be adjudged good it is peremptory and he shall not be permitted to answer over but shall be condemned upon the Writ Mich. 22. Car. B. r. In an Appeal the Appellant ought to appear in Court in person yet upon a motion to the Court the Court may admit him to prosecute his Suite by his Atturney Mich. 22. Car. B. r. The defect in any Process in an Appeal doth discontinue all the Appeal and makes an end of the Action as well as a defect in the Original Writ Hill 22. Car. B. r. Age. If the question be whether the party be of full Age or within Age it shall be tryed by the Court by inspection of the party and not by a Jury Hill 22. Car. B. r. Advantage It is not good practice to take an advantage against the Defendant to obtain a tryal the sooner against him for it causeth clamor from the party and makes him oftentimes press the Court for a new tryal Hill 22. Car. B. r. He that will in pleading take advantage of a particular Statute must shew particularly that he is comprised within the Statute Pasc 23. Car. B. r. Assize An Assize is to be Arraigned in French and first the Defendants Councel doth pray the Court that the Tenant may be called which the Court grants and thereupon he is called by the Cryer of the Court and if upon his calling he do appear then the Tenants Councel do demand Oyer of the Writ of Assize and the Return of it which is granted and thereupon he prayes leave of the Court that he may Imparle which is granted to a short day after and the Jury is adjourned by the Court to appear at that day Hill 22. Car. B. r. Note that the Jurors that are to trye the Assize are called Recognitors of the Assize At the day granted to the Tenant to Imparle unto the Tenant is called and upon his appearance he pleads to the Assize in Latin and upon this an Issue is joyned between the parties and after the Jury or Recognitors of the Assize are examined upon oath upon a voire dire whether they had the view of the land in question and if they say they have had then are they sworn to try the Issue and the Councel do proceed to give them their evidence Pasc 23. Car. B. r. Arraignment If in an Appeal brought the Writ be abated the Defendant cannot be Arraigned upon the count which is grounded upon this Writ Pasc 23. Car. B. r. One Awbry that had been formerly Indicted for upon the Statute for having two Wives and was Out-lawed upon this Indictment was brought to the Bar and Arraigned to this effect First the secondary on the criminal side spake thus Awbry hold up thy hand which the prisoner did then he proceeded thus Awbry thou hast been heretofore Indicted of Felony and thereupon Out-lawed in due course of Law for having of two Wives and hast been Arraigned thereupon what canst thou say for thy self why thou shouldest not have sentence of death pronounced against thee Prisoner I take this exception to the Indictment that it is not said to be found per sacramentum duodecim proborum legalium hominum and I desire I may have Twisden and Hales assigned for my Councel Court You shall have them Thereupon the Councel prayed that the prisoner might bring a Writ of Error to Reverse the Out-lawry Court Let him have it Attaint An Attaint doth lie against a Jury that do give their Verdict contrary to the evidence that is given unto them Pasc 23. Car. B. r. Audita Querela Where the Bail is detained in prison in Execution after the judgement which was given against the Principal is Reversed by a Writ of Error there the Bail may bring an Audita Querela to be discharged Pasc 23. Car. B. r. If one be taken in Execution and is afterwards set at liberty and then is taken again and detained in prison upon the same Execution he may bring his Audita Querela to be enlarged Mich. 24. Car. B. r. If a judgement given in another Court be removed into the Upper Bench Court by a Writ of Error and the party who had the judgement notwithstanding the removal of it by the Writ of Error do bring an Action of debt upon this Judgement in the Court where he obtained the Judgement as he may do if afterwards pending this Action of Debt the Judgement be Reversed by the Writ of Error the Defendant against whom the Judgement was obtained may bring his Audita Querela to be relieved against the Action of Debt brought upon the Judgement 3. Feb. 1650. B. S. One Tritton that was in Execution brought his Audita Querela and prayed he might be Bailed and it was granted and he was bailed by four persons 7. Feb. 1650. B. S. Authority Doctor Cowels book called the Interpreter is not a book of Authority to be urged for Law for it was condemned to be erroneous and scandalous by Parliament and by the authority thereof was publikly burned as erroneous and scandalous A verbal authority given by divers Plaintiffs in an Action of Trespas and Ejectment to deliver a Lease of Ejectment upon the Land though the Lease be signed and sealed by them off of the Land Let in the Lease is a good authority to execute this Lease So held in a tryal at the Bar between Vanlore and Crook Mich. 1649. 7. No. B S. Apurtenant and Apendant Yards Orchards and Guardens are Appurtenances to a Messuage but Lands cannot be said to be Appurtenant to a Messuage though they be used with the Messuage for the Messuage is a Messuage though the Lands be taken away Hill 23. Car. B. r. One Messuage cannot be Appurtenant to another Messuage for they are both entire things of themselves Pasc 24. Car. B. r. Account An Action of Account or an Action of Debt lies at the election of the Plaintiff against one for receiving mony of a third person for the use of the Plaintiff although he had no authority given him to receive it Hill 23. Car. B. r. The Statute of limitations of Actions doth not
the Lady Anne Holborne a Juror was Challenged because he was retorned by the Name of Mathew whereas in truth his Name was Mark although he was also called Mathew as he affirmed being examined upon a voire dire to say what his Name was and upon this Challenge the Juror was drawn and the Jury could not be taken for want of him but a tales was granted It is neither a principall Challenge nor a Challenge for favour to say that the Juror challenged was a supernumerary Juror in a former Jury retorned for the same parties in a Cause betwixt them and did receive money for his charges of the party for whom the verdict passed By Glynn Chief Justice Certiorary It is not necessary to have a Judges hand to a Writ of Certiorari to certifie a Writ of Error 21. Car. B r. A Certiorari to remove an Endictment doth lye by the course of the Court without moving the Court to it Mich. 22 Car. B. r. After a Writ of Error is brought there must be a Writ of Certiorari directed to the Court where the judgment was given for the reversing whereof the Writ of Error is brought to certifie the record into this Court Mich. 22. Car. B. r. A Certiorari to remove an Endictment is good although it doe bear date before the taking of the Endictment which is to be removed by the Certiorari Mich. 22. Car. B. r. For the date is not materiall When a certificate of a Record is made out of an inferior Court they ought to make the Certifiâ—ate as they will stand to it at their perill and it cannot be afterwards amended Hill 22. Car. B. r. For a Writ of diminution is not grantable to an inferior Court Q. This Court will upon motion grant a Certiorari to remove a judgment given in an inferior Court to the intent that the Plaintiff may have a Scire facias against the Defendant to shew cause why he should not have execution upon his judgement Hill 22. Car. B. r. This was done in the Case of Rooke against Knight to remove a judgement given in Dymchurch a member of one of the Cinque Ports in Kent upon the motion of Lancelot Johnson of the Inner Temple The Justices of Assize may certifie to this Court if a Jury doe finde a verdict against the evidence given them Pasc 23. Car. B. r. That judgement may not be speedily entred upon such a verdict It was doubted whether a Certiorari do lye to the Cinque Ports Pasc 23. Car. B. r. Notwithstanding it was done in the Case of Rooke and Knight If one party pray a Certiorari and have it granted the other party cannot have another Certiorari Pasc 23. Car. B. r. viz. For the same thing If there be cause to certifie the Court touching a custome used in the City of London this Certificate is not to be made in wrâ—ting but the Recorder of London is to certifie the Custome to the Court ore tenus or by word of mouth Trin. 23. Car. B. r. But not if the Custome do concern the Lord Major particularly By Rolle Chief Justice When Justices have authority given them by a Statute within a Liberty a Certiorari lyes to them if the Liberty be not excepted Hill 23. Car. B. r. A Certiorari ought to be granted upon a matter in Law only and not upon a matter of fact Pasc 23. Car. B. r. Out of an inferiour Court the original Record ought to be certified into this Court upon a Certiorari directed to them upon a Writ of Error brought to reverse their judgement but the Common Pleas do only certifie a transcript of the Record before them Trin. 24. Car. B. r. The Pronotaries of the Common Pleas will not make a certificate of any matter before them unto this Court without a Rule of this Court to enjoyn them Trin. 24. Car. B. r. A Certiorari ought to be directed to the Custos brevium and to be retorned by him and is not to be directed to his deputy or retorned by him Mich. 24. Car. B. r. A Certiorari doth not lye to remove a Cause after a verdict is given in it Mich 24. Car. B. r. For then the Cause is determined If a Certiorari to certifie a Record be by some mishap so torn or defaced that the Record cannot be perfectly certified by it the party may have an alias Certiorari Mich. 24. Car. B. r. Vpon motion to the Court. A Certiorari may be granted to remove an Act of Common Councel of the City of London if the Act be made against the Law 6. Maii. 1650. B. S. The Court may grant a new Certiorari to remove a Record before them upon a Writ of Error brought after that in nullo est erratum is pleaded if it be ad informandum conscientiam in affirmance of the judgement but at the prayer of the party that brings the Writ of Error and after in nullo est erratum pleaded they will not do it Trin. 1651. B. r. For judgements are favoured in Law and are to be supported as much as justice will permit Rolle Chief Justice said That he did not use to grant a Certiorari to remove an Endictment but where the party that prayes it doth shew good cause why it should be granted viz. that there cannot be an indifferent tryal had in the County where the Endictment was found And where he doth grant it he orders that it shall be tryed the next Terme following B. r. 24. Car. A Certiorari ought not to be granted to remove an Endictment after the party endicted hath traversed and pleaded to the Endictment By Rolle Mich. 1654. B. r. A Certiorari to remove an Endictment ought not to be made by any of the Clerks in the Capital Office without moving the Judges in it and obtaining a Judges hand to it and a Warrant from the Master of the Capital Office Customes The Customes of London are confirmed by Magna Charta C. 9. Customes which are unreasonable are not good nor to be allowed Trin. 22. Car. B. r. Any Custome which may be intended to have had a lawfull beginning is a good custome 11. H. 7. 14. Mich. 24. Car. B. r. Any thing which may be good and lawfull to be done which had its original from the Consent and agreement made betwixt parties may be good and warranntable to be done by vertue of a Custome Mich. 23. Car. B. r. By the Custome of London an Action upon the Case doth lye against one for calling a woman Whore Hill 22. Car. B. r. But she must be an Inhabitant of London But Q whether it lye or not for by the Common Law it lyes not and Bacon Justice thought the Custome not good And quere it lye for a lodger The Customes of the Universities are confirmed by Act of Parliament Pasc 23. Car. B. r. The Customes of London if there be a question in this Court whether there be such Customes or not are to be
certified by the mouth of the Recorder Pasc 24. Car. B. r. By a Custome which they have in the Town of South-hampton if a bastard child be found within the Town and the father of it cannot be discovered he that comes next into the Town after the Childe was found must keep the Child Mich. 24. Car. B. r. It may be they of the Town did time out of minde agree amongst themselves that it should be so By a Custome of the City of Bristol an Action brought against one upon a bare promise of the party that he would pay the money or upon a concessit selvere is maintainable there and so it is by the Custome of London 31. Jan. 1649. B. S. If two persons be found in arrear upon an Accompt grounded upon the Custome of Merchants any one of them may be charged to pay the whole summe that both of them were found to be arrear upon the accompt and this is by the Custome of Merchants 26 Jan. 1650. B. S. If there be a tryal to be had Whether there be such a Custome as is pretended with in the City of London or not this issue cannot be tryed in the Upper Bench but it must be tryed in London in the Hustings 27. Jan. 1650. B. S. By a Custome used at sea the goods in a ship which is taken as prize ought not to be taken out of the ship before the ship so taken be condemned for prize in the Court of the Admiralty By Rolle Chief Justice in the Case betwixt Lever and Smith Mich. 1654. B. S. Compulsion None shall be Compelled by Law to shew or declare any thing of which by common intendment he cannot have knowledge 38. H. 6. f. 3. Mich. 22. Gar. B. r. Counsell and Counsellor A Counsellor ought not to set his hand to a frivolus Plea or Demurrer to delay a tryal Mich. 22. Car. B. r. For it is not fair practise After the Court hath delivered their opinions of the matter in Law depending before them the Counsell at the barr ought not to urge any thing more for the Clyent in that Cause Mich. 22. Car. B. r. For it is uncivil not to acquiesce in the judgement of the Court but to seem unsatisfied therewith One that is endicted for felony may have Counfell assigned him to speak to matters in Law which may arise upon the Endictment Pasc 23. Car. B. r. One cannot have Counsell assigned by the Court upon an Endictment in forma pauperis Pasc 23. Car. Mich. 1649 B. r. But Counsell must be assigned to him by warrant under the hand and seal of the Lord Chief Justice that the Counsell may have it in his hand to shew to the Court if they require Where Councel is Assigned to one that is Indicted for Felony the Councel Assigned ought to be entred upon Record Pasc 24. Car. B. r. County Some part of the County of Chester is not within the County Palatine of Chester Mich. 22. Car. B. r. Where a River doth run betwixt two several Counties there one half of the River belongs to one County and the other half of it belongs the other County Pasc 23. Car. B. r. viz. From the shoar to the middest of the River as far as the River extends in length upon the County Constable If one that is elected to the Office of a Constable do refuse to take his Oath to serve in that Office this Court may send forth a Writ unto him to compell him to do it Mich. 22. Car. B. r. If a Court-Leet do not elect a Constable where they ought to elect one or do not give him his Oath to execute his Office as they ought to do the Quarter Sessions in the County where the Leet lies may do it Mich. 22. Car. B. r. A Constable that is a Constable in one Town cannot execute the Office of a Constable in another Town Pasc 24. Car. B. r. Commission and Commissioners The Commissioners of the Statute of Bankrupt have not authority by the Statute of 1. Jac. to transfer any other Action to any person in order to the recovery of any of the goods of the Bankrupt but onely such Actions as the Bankrupt himself might have had to recover them if he had not been found a Bankrupt Mich. 22. Car. B. r. The King may by his Commission make one or more Deputy Escheators to find an Office after the death of a noble man or for some other special cause Pass 24. Car. B. r. A Justice of Assize may have a special Commission to ride the Circuit alone but if his Commission be generall and according to the Statute he is to have an Associat joyned with him in the Commission Trin. 24. Car. B. r. Sessions If a Court-Leet do not choose a Constable or do not give him his Oath to execute his office the quarter Sessions of the County where the Leet is may do it Mhich 22. Car. B. r. If one speak of a thing to be done at the General Sessions of the Peace it shall be intended to be meant that it was done at the Quarter Sessions Trin. 24. Car. B. r. For that is the most General Sessions being held for the whole body of the County Commitment None shall be committed for a contempt done to the Court if the contempt do not clearly appear to the Court Mich. 22. Car. B. r. Every Commitment to the Goal ought to be made by Warrant under the hand and seal of him that commits the party and the cause why the party is committed ought to be expressed in the Warrant Pasc 23. Car. B. r. This is true of Commitments made by Justices of the Peace in the Country but this Court may commit by Parol Contempt One may be committed for a Contempt done to the Court but the matter of the Contempt must be certain and not doubtfull Mich. 22. Car. B. r. An Attachment lies against one for a Contempt done to the Court Hill 22. Car. B. r. If the Court make a Rule in an Action of Trespas and Ejectment that the Defendant in the Action shall confess the Lease Entry and Ouster and yet at the Tryal the Defendant will not do it the Plaintiff must proceed notwithstanding in his Tryal but he may also proceed in this Court against the Defendant upon his Contempt in not obeying the Rule of the Court Pasc 24. Car. B. r. If one take out Execution upon a Judgement after that a Write of Error is brought in this Court to Reverse the Judgement and after the Writ of Error is allowed in the Court where the Judgement was given this is a Contempt to this Court Trin. 24. Car. B. r. But it is no contempt if the Roll be not marked or notice given to the party of the Writ of Error brought Mich 1649. B. r. The Plaintiffs Atturney is not bound to search the Record whether a Writ of Error be brought or not but may take out Execution upon the Judgement given for his Clyent if
alleged a place from whence the venue should come and it is not alleged but omitted and yet an issue is joyned between the parties and the veniâ—e is from the body of the County the Defendant may Demur upon the venire facias if he will but if he do not Demur but suffer the tryal to pass this is a good tryal Mich. 22. Car. B. r. For he hath slipped his advantage of Demurrer Where a Statute gives leave to plead generally and the party waives this leave and pleads specially the other party may Demur upon his special Plea if he see cause Pasc 23. Car. B. r. For though he needed not to have Pleaded specially yet having done it the Plea must be good at his own peril A generall Demurrer doth not lye to a Scire facias Pasc 23. Car. B. r. For it is in the nature of a judicial Writ Upon a Demurrer to an evidence given to a Jury at a tryal the Jury are to be discharged and not to pass upon the tryal But the matter in Law in question upon the Demurrer is referred to the Judges to determin Pasc 23. Car. B. r. A Demurrer to an evidence is when the party that doth demurre upon it doth demand the judgment of the Court whether the matter given in evidence be sufficient admitting it to be all true to finde a verdict for the Plaintiff upon the issue that is joyned betwixt him and the Defendant Pasc 23. Car. B. r. And when such a Demurrer is taken the Plaintiff and the Defendant must agree the matter of fact in dispute betwixt them otherwise the Court cannot proceed to determine the matter in Law but there must be a Venire de novo to try it Trin. 23. Car. B. r. The party that is delayed in his proceedings by reason of a Demurrer may move the Court to appoint a short day after to hear Counsel speak to the Demurrer and the Court will grant it Trin. 23. Car. B. r. In a Demurrer upon an evidence the party demurred unto may demand judgment of the Court whether he ought to joyn in the Demurrer or not Trin. 23. Car. B. r. For if there be not a colourable matter for to ground the Demurrer upon the Court will not force the party to joyn in it but will overrule it One cannot demurre upon a thing upon which an issue cannot be taken by reason of the doubleness and by consequence doubtfullness of the matter Trin. 23. Car. B. r. After the Plaintiff and Defendant have joyned in the issue which is to be tried betwixt them neither of them can Demurre without the consent of the other Trin. 23. Car. B. r. For by their joyning in the issue both parties have admitted the whole pleading to be good as to try the issue There must be a speciall Demurrer to a negative preignance that is a negative Plea which doth also contain in it an affirmative and to an argumentative Plea that is a Plea which concludes nothing directly but only by way of argument or reasoning and to a double Plea for a generall Demurrer doth admit them to be good Mich. 23. Car. B. r. For is doth not shew any fault in them as a speciall Demurrer doth One may demurre to a Demurrer for the doubleness of it but if he that might demurre doth not demurre to it but joynes in the Demurrer he cannot demurre afterwards for he hath slipped his advantage Mich. 23. Car. B. r. A Demurrer is double when that he that doth demurre doth assign in his Demurrer for cause of it one error in fact and another error in Law to be in the Plea upon which he demurres which he ought not to do in one Demurrer Mich. 23. Car. B. r. One may demurre to one part of a Declaration and yet plead to the other part of it with a Quo ad c. Mich. 23. Car. B. r. Discharge If an Attachment be granted by the Court against one and he is thereupon apprehended he shall not be discharged upon an affidavit made on his behalf but he that is attached must appear in person in Court and be there Discharged Mich 22. Car. B. r. For it is a personal offence for which he is attached and he shall not therefore be discharged except he yeeld obedience in person A paroll agreement before it is broken may be discharged by paroll or word but after it is broken it cannot be discharged without satisfaction made for the breach of it Hill 22. Car. B. r. For by the breach of it an injury is done to the party which requires satisfaction Hill 20. Car. B. r. If one be arrested by a Latitat out of this Court and the Plaintiff do not declare against him in two Terms after if the Defendant move the Court that he may be discharged because the Plaintiff doth not prosecute his suit against him the Court will Discharg him Pasc 23 Car. B. r. For liberty is precious and much favoured in Law If the Plaintiff at whose suit the Defendant is in execution do give the Defendant leave to go at large that is out of prison the execution is thereby discharged and if the Plaintiff do take the Defendant again upon the same execution and commit him to prison the Defendant may bring an Audita quercla against the Plaintiff for his illegall imprisoning of him Mich. 23. Car. B. r. For it shall be intended that the Plaintiff had satisfaction upon the execution or else he would not have given the Defendant leave to go at large A Prisoner that is committed for Felony and brought to this Barr by a Habeas Corpus cannot be discharged although the retorn upon the Habeas Corpus be not sufficient to give the Court satisfaction that he was justly committed Pasc 24. Car. B. r. A Prisoner that is brought to the Barr to be bailed by a Writ of Habeas Corpus if he were committed for matter on the Crown side he must be brought into Court on the Crown side that is on that side of the Court where the Master of the Crown-Office sits but if he stands committed for a matter determinable on the Pleas side he must be brought into Court to be bailed on that side of the Court where the Master of the Kings-Bench Office sits viz. on the left hand of the Lord Chief Justice Pasc 24. Car. B. r. Of later time it hath been permitted by the Court to Discharge the bail if he bring in the principall before the retorne of the second Scire facias issued out against the bail but antiently it was not so Mich. 24. Car. B. r. A Judgment cannot be Discharged by pleading a Paroll agreement between the parties to discharge it 27. Jan. 1650 B. S. For matters of record are not to be wiped off with words Disseisor If one enter wrongfully into my Lands and after his entry I accept rent of him for the Land I cannot afterwards take him for a Disseisor Trin 24. Car. B. r. For
may either have an Alias Capias against the party that Escaped to take him again in Execution or an Action upon the Case against the Sheriff that suffered him to Escape Mich. 23. Car. B. r. An Escape in one place is not an Escape all England over 6. Nov. 1650. B. S. Extent Lands in the hands of a Trustee may be extended for a Debt due to the King Hill 23. Car. B. r. Q Whether they are extendable for any other Debt Escheator The King may by his special Commission make one or more Deputies Escheators to find an Office and this is used to be done after the death of a Noble man or other person of great quality Pasc 24. Car. B. r. Fine A Fine for a licence of Alienation to alien Lands held in Capite is to be paid in Chancery for there is the pardon for Alienation of such Lands without licence to be sued forth 21. Car. B. r. If an Officer of this Court do not give his due attendance upon the Court as his place requires the Court may set a Fine upon him for his neglect Trin. 22. Car. B. r. This Court may set a Fine upon the Clerk of the peace who returns an Endictment into this Court upon a Certiorari directed to remove the Endictment into this Court if the Endictment be not good in matter of form Trin. 22. Car. B. r. For it shall be intended that it was his negligence that the Endictment was not well drawn for it shall not be presumed that he can be ignorant in the form of drawing Endictments The Court cannot set a Fine upon a Sheriff that is out of his Office Mich. 22. Car. B. r. For then he ceases to be an Officer of the Court. If the Conusee of a Fine levyed of Lands do pay mony unto the Conusor of the Fine at the time of the Fine levyed and there is no use declared to lead the use of the Fine levied of these lands the Law will construe the Fine to be levyed of these Lands to the use of the Conusee to whom the Fine is levyed but if there be no money paid by the Conusee nor any use declared the Fine shall enure to use of the Conusor that levyed the Fine Pasc 23. Car. B. r. For nothing appears whereby it can be supposed that the parties had any intention the estate in the Lands should be altred by the Fine but that the Fine was levyed in Corroboration onely of the title of the Connsor If Justices of peace do proceed upon an Indictment after a Certiorari out of this Court is deliveed unto them to remove the Endictment into this Court This Court may set a Fine upon them for their contempt to this Court Hill 23. Car. B. r. This was done heretofore in the Case of Sir John Sedly and Sir Thomas Stile two Justices of the peace of the County of Kent If a Habeas Corpus do issue out of this Court and the party to whom it is directed do make an insufficient return of it this Court may set a Fine upon the party for making this insufficient return Pasc 24. Car. B. r. A Fine and recovery cannot destroy an estate executory which depends upon contingencies but it will destroy a Remainder Q. Pasc 24. Car. B. r. If part of a Fine that is set upon one that is convicted upon an Endictment or information for an offence done by him contrary to a Statute do belong to a subject as it may if the Statute do so direct all the fine set upon the party ought not to be estreated into the Exchequer Pasc 24. Car. B. r. But the Kings part onely ought to be estreated A fine sun Cognisance de droyt come ceo que il ad de lour done c. levyed of Land doth admit the possession of the Lands of which the Fine is levyed to pass by the Fine but a Fine come droyt levyed of Lands doth only pass the right of the Conusor in the Lands of which the Fine is levyed Mich. 1649. B. S. A Fine sur Cognisance de droyt come ceo c. is a Fessment upon Record of the Lands comprised in the Fine and doth imply a Livery and Seisin to be made of those Lands Hill 1649. 29. Jan. B. S. A Fine of twenty nobles was set upon one for bringing an Attaint against a Jury after the Jury had been formerly acquitted Hill 1649 4. Feb. B. S. A Fine set upon one which is voideable that is may be avoided is not void absolutely but continues to be a good Fine untill it be avoided by the Plea of the party that is Fined Pasc 1650 4. Feb. B. S. One may declare the use of a Fine by Paroll and if there be such a Declaration by Paroll made to lead the use of a Fine and it be defective to declare the intent of the parties it may be afterwards supplyed and made good by subsequent Parolls 8. Nov. 1650. B. S. Filing of Process or other thing A Capias that is duly sued forth may be filed afterwards and it is not necessary to File it at the time when it is taken forth 21. Car. B. r. For the Fileing of it doth contribute nothing to the essence of the Writ A Declaration may be Filed in the Office after a Writ of Error is brought to reverse the Judgement given in the cause wherein that Decleration was given and so is it of a Warrant of Atturney Pasc 24. Car. B. r. For the Defendant is at no prejudice by the filing of them and he did take notice of them as appears by his pleading and going to issue with the Plaintiff Affidavits which are not read in Court may not be filed there untill the secondary hath made his report in the cause touching which such Affidavits were made but if they be read in Court they may be presently filed Trin. 24. Car. B. r. For the Court takes no notice of them untill they be read in Court An original Writ may be Filed after Judgement given in the cause for which it was sued forth if it were sued forth before the Judgement given Trin. 1650. 26. Junii B S. The Court will not compell the Plaintiff to sile a venire facias after a Verdict if the venire will make an Error for if there be no venire that defect is helped by the Statute of Jeofailes but if there be a venire and that venire is erroneous this is not helped by the Statute Trin. 1651. B. S. False Latine and Form The Court doth use to amend False Latin and Form in Bills presented unto them by the grand Enquests every Term by their licence and consent but the Court cannot amend matter of substance in them Mich. 22. Car. B. r. For that were to make new Bills Forma Pauperis If one that is admitted to sue in Forma panperis will not proceed according to the Rules of the Court but useth delayes to vex his adversary the Court will Dispauper him
Car. B. r. A Tenant that is within the distress of a Lord of a Mannor or Leete ought not to serve upon a Jury in a Cause that concerns the Lord Mich. 23. Car. B. r. For it shall be presumed he may not be indifferent in regard of fearing to displease his Lord. After a Juror is sworne he may not go from the Barr untill the evidence be given and the directions of the Court for any cause whatsoever without leave of the Court and although he have leave he must have a keeper with him Pasc 24. Car. B. r. If a Juror be challenged and the Challenge entred by the Secondary that Juror cannot be after that sworne as a Jury man to try that Cause wherein he was challenged viz. at that tryall 24. Car. Pasc B. r. Q. Whether before the Challenge entred he may be sworn Where a tryall is to be for a thing that concerns the Under-Sheriff there the High-Sheriff shall retorne the Jury Trin. 24. Car. B. r. For here shall be no favour supposed but if the tryall concerne the High-Sheriff the Vnder-Sheriâ—… shall not retorne the Jury for there may be presumed to be favour for the servant depends upon the master and not the master upon the servant The Jury ought not to have any writting with them when they go from the Barr which hath not been proved although such a writting hath been given in evidence unto them Mich. 24 Car. B. r. The Jury may finde matter of Record if they do know it of their own knowledge Pasc 1650. B. S. 10. Maii. For a mans own knowledge is more certain than any evidence can be given There are three grand-Juries retorned every Term to serve in this Court every Jury consisting of 16 17 18 19 or 20 Jurors or more Though a man be very aged yet if he be of an able body and not infirm he is not to be excused from serving upon the grand Jury One _____ Butler a man of 72. years of age was denied by Rolle Chief Justice to be excused to serve because he was of an able body Hill 1651. B. S. One that hath no Freehold in the County or is a Constable or a Surveyor of the high-way or is a sequestred person are not thereby to be excused from serving upon the grand Jury Pasc 1651. B. S. By Rolle Chief Justice But Q. of a sequestred person The Jurors that appear at a tryall shall not have their charges allowed them if the Cause be not tryed for want of Jurors Pasc 1652. B. S. For their apparance is to no benefit of any body When a Juror is withdrawn he is strook out of the panell by the Secondary Upon a generall issue the Jury may finde a Record but not upon a nul tyell Record Pleaded 1651. If but eleven of the Jury be sworne if the twelfth man do stand by and hear all the evidence that was given to his fellowes he may be sworne afterwards and pass upon the tryall By Rolle Chief Justice 1654. Pasc B. S. For the Jurors are sworne to try the issue upon the evidence they shall hear so that it seems the time of being sworne is not materiall whether before or after the evidence Q. The Jury may take Depositions taken in Chancery and exemplified there given in evidence to them from the Barr with them but if they be not exemplified they may only look upon them in Court but not take them with them out of the Court 1654. B. S. For to see them is no more then to hear them read Issue Every Issue is to be joyned in such a Court that hath power to try it otherwise the Issue is not well joyned 21. Car. B. r. For if the Cause cannot be tryed the issue is fruitless If an Action of Trespass be brought against two for entring into the Plaintiffs Land and one of them pleads that the Land is his freehold and the other that he entred into the Land by the commandment of him that pleads it is his freehold here is to be but one Issue joyned 21. Car. B. r. For but one of the Defendants claimes an interest in the Land and the other justifies but as a servant unto him and if the tryal pass for him that claimes the interest there is no colour of Action to be maintained against the other If there be a Demurrer to an evidence and the party whose evidence is demurred unto do plead to the demurrer and joyn Issue with the Defendant upon it this Issue must not be joyned upon a matter in fact in the evidence but that must be agreed or else the Issue is not well joyned for the Court are not to try matter of fact for that would be for them to give a verdict Mich 22. Car. B. r. Whereas the Court are only to declare the Law whether admitting that all the matter given in evidence by the Plaintiff be true it doth prove the Issue in question or not By the Rules of the Court if the Plaintiff will not try his Issue after it is joyned in such time as he ought by the course of the Court to do the Defendant may try it by Proviso if he will Hill 22. Car. B. r. That he may free himself if he can of the danger and trouble he may be subject to by the depending of the Action brought against him and to recover his dammages for his unjust vexation A judgment may be entred as to one part of an Issue and a nolle prosequi to another part of the same Issue Pasc 23. Car. B. r. This is only where the Issue may be divided Where there is a demurrer to part of an Issue and the other part of it remains to be tryed by a Jury the Tryal of it may be either before or after the arguing of the Demurrer at the Election of the Plaintiff Pasc 23. Car. B. r. For the Demurrer and the Issue have no depondancy one upon the other Every issue ought to be joyned upon the most material thing in the Cause depending that all the matter in question between the parties may be tried Hill 23. Car. B. r. For else the triall will prove to little purpose If an Issue be once joyned between the parties this Issue cannot afterwards be waved except both parties do consent unto it although the Issue be but in paper and not engrossed in parchment Trin. 24. Car. B. r. Therefore it is good to be well advised before the Issue be joyned The place ought not to be made part of the Issue in a transitory action Trin. 24. Car. B. r. For the place is not material as it is in a real and mixt action An immaterial Issue joyned which will not bring the matter in question to be tried is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader 26. Jan. Hill 1649. Pasc 1650. 4. Maij. B. S. For this is matter of substance For if there was no Issue there could be no Verdict
a Messuage is an entire thing of it self and cannot be apurtenant to another thing Non-sute UPon a Trial when the Jury comes in to deliver in their Verdict and the Plaintiff is called to hear the Verdict If he do not appear after he is thrice called by the Crier of the Court he is to be Non-sute and the Non-sute is to be recorded by the Secondary by the direction of the Court at the prayer of the Defendants Councell Hill 21. Car. B. r. When a Plaintiff is Non-sute if he will again proceed in the same Cause he must put in a new Declaration and cannot proceed upon that Declaration whereupon he did proceed in the Cause wherein he became Non-suite 22. Car. B. r. 16. Ap. 1650. B. S. For by his being Non-suit it shall be intended that he had no such cause of Suite as he deelared in and so that declaration is void The King of Spain hath been Non-suit in England Mich. 22. Car. B. r. And this stands with reason for if a foraign Prince will take the benefit of the nationall Laws here he must proceed and stand to the Rules and orders of the Court wherein he prefers his Action If the Plaintiff will not proceed upon his Declaration as he ought to do by the Rules of the Court the Defendant may Non-suit him Mich. 1649. B. S. Although upon a tryal the Plaintiff be called to hear the Verdict and do not appear to hear the Verdict when he is called and thereupon the Court direct the Secondary to record the Non-suite yet if afterwards the Plaintiff do appear before the Non-suite be actually recorded the Court may proceed to take the Verdict Trin. 1651. B. S. For it is not a Non-suit untill it be recorded by the Secondary and then it is made part of the record and is in the nature of a Judgement against the Plaintiff If the Plaintiff be not ready at the tryal with his Record when the Jury is called the Court will call him Non-suit By Rolle Chief Justice 1651. B. S. For it shall be intended he will not proceed in his cause any further Nolle Prosequi A Nolle Prosequi is where there are divers Issues joyned between the Plaintiff and the Defendant and the Plaintiff enters upon the Roll a Nolle Prosequi That is to say that he will not proceed upon one or more of the Issues joyned and yet he may proceed to tryall upon the rest of the Issues Hill 23. Car. B. r. Nusance A Nusance made in a Port or Haven by the sinking of a Ship there ought to be removed by the owner of the Ship and if he do it not he may be endicted for it as for making a Common Nusance 21. Car. B. r. For it is prejudicial to the Commonwealth in hindering of Trade An Action upon the Case ought to be brought against one that makes a private Nusance and he ought not to be endicted for it Pasc 23. Car. B. r. For Endictments ought to be in the Kings name and do presume to be preferred for offences done against the publike A common Nusance may be abated or removed by those persons who are prejudiced by it Pasc 23. Car. B. r. Nomine Poenae A Nomine Poenae for the non-payment of a Rent ought to be legally demanded if the Rent be behind as well as the Rent is to be demanded before the grantee of the Rent can distrain for it 21. Car. B. r. For the Nomine Poenae is of the same nature as the Rent is and is issuing out of the Land out of which the Rent doth issue Notice The Plaintiff and Defendant are both bound at their perill to take notice of the general Rules of practice of this Court but if there be a special particular Rule of Court made for the Plaintiff or for the Defendant he for whom the Rule is made ought to give Notice of this Rule unto the other or else he is not bound generally to take notice of it nor shall be in contempt of the Court although he do not obey it Pasc 24. Car. B. r. Mich. 1649. B. S. For general rules are the general practice of the Court whereof every one must take Notice of that hath to do there but particular rules are made upon particular and extraordinary matters happening in the proceedings upon the motion of one of the parties made to the Court of which the other may be ignorant The Court is bound Ex Osicio to take Notice of all matters which do appear upon the Record depending before them but of matters Dehors viz. to search the Almanack for dayes and to compute times mentioned in the Record they are not bound Ex Oficio to do it 21. Car. B. r. 24. Car. B. r. Q. The Court is not bound to take Notice of the new stile but of the old English stile 21. Car. B. r. For the old is that whereby all accounts in the Common Law are guided and not by the new which is foreign and goes ten dayes before the English stile or account The Plaintiff ought to give the Defendant eight dayes Notice exclusive before he executes his Writ of Enquiry of Dammages or else the Court will quash it although he have executed it and put him to a new Writ of Enquiry upon the motion of the Defendant made to the Court of his want of such Notice and proof thereof by Affidavit Trin. 22 Car. B. R. and Pasc 1652. B. r. Exclusive is meant that the day upon which the Notice is given is not to be one of the eight dayes but the Writ is to be executed upon the ninth day and so long Notice is to be given that the Defendant may have time sufficient to defend himself by his Councel and Witnesses upon the evidence given against him before the Sheriff and the Jury by the Plaintiff The Common Law doth not take Notice of the intentions of the party to do any unlawful Act except it be in case of high treason Trin. 22. Car. B. r. For mans Law is to regulate the words and Actions of men and not the thoughts of which it cannot have conusanse But Gods Law extends to the thoughts This Court is to take Notice of a general Ordinance of Parliament viz. such a one as concerns the Publique but not of a Parliament Ordinance which concerns some particular persons Mich. 24. Car. B. r. Except such particular Ordinance do appear before them by pleading or otherwise If a Declaration be put into the Office although it be not filed yet is the Defendants Atturney bound to take notice of it Mich. 22. Car. B. r. For it is the Duty of the Plaintiffs Atturney onely to put the Declaration into the Officer and the Officer in the Office is to file it and though it be not filed yet may the Defendants Atturney take a Copy of it None is bound by the Law to give Notice to another of that which that other person may otherwise inform himself
satisfaction the Law will not intend that he is damnified and so he hath no Cause of Action When the Court doth order one to plead presently it is to be understood that he shall plead in such convenient time after as the Court shall judge reasonable Mich. 22. Car. B. r. The Defendant may amend his Plea although it be three Terms after it was pleaded if he will pay Costs Mich. 22. Car. B. r. But it must be by leave of the Court because it is against the common Rules of practice Although a Plea do contain divers matters in it upon which an Issue may be taken yet this Plea is not double if the Plea could not have been good without alleadging all those matters in it Mich. 22. Car. B. r. For though the Law doth not allow captious Pleas yet it doth not deny the Defendant to plead all such matters that his Case affords for his just Defence If the Defendant Plead an insufficient Plea and there is a good Issue joyned upon that Plea and a Verdict given upon that Islue for the Defendant the Plaintiff shall not afterwards take advantage of the insufficiency of the Plea Mich. 22. Car. B. r. For it was his own sault to joyn Issue upon it when he might have demurred upon it Where one Pleads Letters of Administration which are granted by such an ordinary whereof the Law doth take notice he may Plead that they were granted unto him debito more but if they be granted by an inferior ordinary of whom the Law doth not take notice of he must Plead that they were granted unto him per ordinarum illius loci Mich. 22. Car. B. r. That the Court may the better Judge whether they be well granted in regard of the power of the ordinary that granted them or not If the Plaintiff do alter his Declaration after the Defendant hath Pleaded to it the Defendant may alter his Plea Mich. 22. Car. B. r. For by the amendment of it it may be so altered in matter that it mâ—y require a different answer from what was formerly Pleaded and in that case if he should not amend his Plea he might be triced for want of a good Plea In an Appeal brought all the Pleadings ought to be in French Mich. 22. Car. B. r. Because the Statute which enacted that all Pleadings should be in Latin extends not to this Action and so the Pleadings therein are to be in French as all Pleadings were before that Statute But now by the late Act they are to be in English Q. Tamen Whether that Act do extend to this Action or onely to such Pleas as were formerly in Latin When the Court doth order that the Defendant shall Plead it is intended that he must Plead an Issuable Plea Mich. 22. Car. B. r. For the rule is made to quicken the Defendant that the Plaintiff be not delayed by his Dilatoriness and if he might Plead a Dilatory Plea and not issueable the rule would be to no purpose The Court will not upon a motion rule the Defendant to Plead peremptorily by a day before the common rules of the Court for Pleading be out but then they will Mich. 22. Car. B. r. For till then it cannot be said that the Defendant hath delayed the Plaintiff If a Scire facias upon a Recognizance be brought against an Infant he cannot Plead Infancy or nonage to it but he must bring his audita querela and set forth his case therein and thereby his age shall be tryed by the Courts inspecting of him and not by a Jury Hill 22. Car. B. r. If the Plaintiff do release his cause of Action to the Defendant yet the Court will not upon a motion stop the Plaintiffs proceedings in the Action but the Defendant must Plead this release Hill 22. Car. B. r. In bar of the Action for the Court cannot take notice of the release upon a motion It is not a good Plea to Plead a Paroll agreement in bar of an agreement made by indenture between the parties Hill 22. Car. B. r. For an agreement by Indenture is a more solemn agreement and of a higher nature then a Paroll agreement and must be discharged by some act of as high a nature as it is A double Plea is such a Plea that one Issue cannot determine all the matter issuable that is contained in it and also where the Defendant is put to a double answer Hill 22. Car. B. r. And such a Plea is not a good Plea If the Defendant do Plead a frivolous Plea to the intent to delay the Plaintiff and to hinder him from going to a tryal the Court will upon the Plaintiffs motion order the Defendant to plead such a Plea as he will stand to or else to accept of a Demurrer from the Plaintiff unto his frivolous Plea Hill 22. Car. B. r. For it is the Justice of the Court to speed the proceedings in Law and to bring suits to determination as soon as with conveniency and Justice to all parties it may be done By the course of practice in the Court of Common Pleas the principle in a Bond may Plead for his Suerty without his leave or knowledge and acknowledge a Judgement upon the Bond but this Court doth judge it hard practice and will not allow it to be don here Pasc 23. Car. B. r. Now it is said they do not allow it there The practice seemed hard in this respect that the Suerty who intended onely to be bound that the principal should pay the Debt should by the falsity of the principal be presently liable to an Execution for the Debt and be enforced to pay it Where the Defendant may plead the general Issue he ought so to Plead that the whole matter in question may come to be tryed Pasc 23. Car. B. r. For else the Plea is not good because it tenders not such an Issue whereupon the cause depending may be determined which every Plea ought to do for to Plead otherwayes is to no purpose If one bring an Action upon a contract it is a good Plea in bar for the Defendant to Plead quod exoneravit se de Contractu Pasc 23. Car. B. r. For it sounds all one as if he had Pleaded that he hath performed the agreement A Concord by Paroll is no good Plea in bar to an Action brought upon a single Bill which is not penall Pasc 23. Car. B. r. For bare words are not of so great force as agreements put in writting Every Plea must be Pleaded either in bar to the Action brought or in abatement of the Writ upon which the Action is framed otherwise it is but a discourse and not a Plea because the Plaintiff cannot take an Issue upon it and therefore if the Plaintiff do demur upon it and his demurrer be adjudged good he shall have Judgement against the Defendant Pasc 23. Car. B. r. Anciently all Pleadings were in French then by the Statute it was Enacted they should be in
cause proceeded in be entred Mich. 1649. B. r. For not till then the Record is made perfect An appearance will help a miscontinuance of Process 9. Nov. 1650. B. S. The bringing of a Writ of Error is a continuance of the Action 10 Feb. 1650. B. S. Hill For the Action is not determined by the Judgement if a Writ of Error be brought but is still depending for the Judgment it may be may be reversed If a cause to be spoken to in Court be entred into the paper of causes for the day in the Office although it be not put into the paper of the causes of the day delivered to the Judges yet the Court will proceed in them if they be enformed of it Trin. 1651. B. S. For it was but a mistake of the Clerk and it may be Councel on both sides are entertained for that day to speak in it Upon a Verdict or a Demurrer sometimes the continuances in the cause are not entred until after a Writ of Error be brought Pasc 1652. B. S. Miscontinuance of Process is where one Process is used for another Process viz. a wrong Process in stead of a right Trin. 1652. B. S. Provisoe A Provisoe in a Deed which sounds in Covenant is Collateral 21. Car. B. r. That is a Provisoe which is so penned that it implies a Covenant in it for there is difference betwixt a Provisoe and a Covenant of a Deed for a Provisoe doth often go by way of destruction of the whole Deed or some part of it or of the estate created by it but a Covenant alwayes stands with the Deed and onely an Action lyes upon the breach of it A tryal by Provisoe was ordained by the Statute to the end that the Defendant might free himself of suits brought against him by trying the issue depending betwixt him and the Plaintiff in case the Plaintiff doth not try it as he ought which he may do the next Term after the Plaintiff should have tryed it or at any time after that when he pleaseth Hill 22. Car. B. r. If a Provisoe in a Deed be insisted upon at a tryal to destroy the Deed in which it is there must be punctuall proof that the thing provided to be done or not done was done or was not done according as the Provisoe directeth Mich. 1650. B. S. For the Law doth not favour the destruction of Deeds or estates but doth favour the supporting and maintenance thereof as much as may stand with the rules of Justice Pledge The Plaintiffs Pledges that he shall prosecute 〈◊〉 suite may be entred at any time pending the suit Trin. 22. Car. B. r. For the putting in of Pledges is now but a meer formal thing but what was the ancient use of putting them in Q. Pardon A general Pardon doth discharge not onely the punishment which was to have been inflicted upon the person of him that did commit the offence Pardoned but also the guilt of the offence it self Mich. 22. Car. B. r. A Pardon may dispence with the burning in the hand of a person that is convicted for Felony but without a Pardon it may not b◠dispensed withall Pasc 23. Car. B. r. The words Pardonavit remisit relaxavit in a Charter of Pardon granted to one for Felony do not restore unto him the goods which he forfeited to the King by his Felony but the word restituit in the Pardon doth restore him to his goods Trin. 23 Car. B. r. For the former words go but only to the Pardoning of the offence but the latter to restoring to the estate forfeited by the Felony A Pardon for treason cannot be pleaded untill the prisoner be charged with the Endictment for the offence committed Pasc 24. Car. B. r. For before he is charged by the Endictment it doth not appear to the Court that he is the person that is pardoned by the Pardon If one have a Charter of Pardon for Felony committed by him the Court ought to allow it upon the prayer of the party that hath it but he must produce it at the Bar and pray upon his knees that it may be allowed 13. Nov. 1650. B. S. And so it was then done in one Goffs case A general Pardon doth Pardon publicke offences done to the Commonwealth but it doth not Pardon private injuries done to particular persons Pasc 1652. B. S. Postea The Postea is the issue or record engrossed in parchment upon which a tryal is had and which is afterwards to be entred in the roll of the Court where the Action tryed was brought when the party enters his Judgement upon the Verdict had at the tryall Mich. 22. Car. B. r. It is called the Postea from the word Postea which begins that which is entred by a Clerk of Assize upon the record that was tryed after the tryal setting forth that Postea that is afterwards after the issue joyned at such a day and place and before such a Judge the Plaintiff and Defendant came c. to hear Judgment that is to try the cause and hear the Verdict and so sets forth the tryal particularly and the Verdict The Court may stay the Postea not suffering the party to enter Judgement upon his Verdict if they find cause to do it Mich. 22. Car. B. r. viz. For undue proceedings in the tryal The Defendant hath four dayes by the rules of the Court to speak in arrest of Judgement after the Postea is brought into the Court and if the party for whom the Verdict passed will not bring it in upon notice given to him by the other party that he intends to move in arrest of Judgement the Court upon a motion setting forth this matter will order Judgement to be stayed untill four dayes after it shall be brought in There is no general rule of Court for the Clerk of the Assize to bring in the Posteas into this Court by a percise time but if he be negligent and return the◠not in convenient time the parties grieved may more the Court and thereupon the Court will make a rule that he bring them in speedily Mich. 22. Car. B. r. If the Clerk of the Assize have mistaken himself in drawing up of the Postea he may amend it by his notes which he took and drew it up by although it be returned Trin. 24. Car. B. r. But it must be before it be filed for then it is a record of this Court After the Postea is entred upon record and the record hath been read in Court in order to the speaking to some matter in Law in it the Atturney in the cause ought not to have the Postea any longer in his custody but it ought to remain in Court Trin. 24. Car. B. r. The Defendant may give rules in the Office for the Plaintiff to bring in the Postea and if he will not do it he shall be non-suite 18. Nov. 1650. B. S. For though he have a Verdict yet he hath no Judgement and so his
suit is not determined and the Court will intend that he will proceed no further and the Defendant is not to be tyed to attend upon his proceedings upon incertain tyes Although the Verdict given be prejudicial to the Plaintiff as he conceives yet he ought to bring in the Postea Pasc 1651. B. S. 13. Maii. For he must abide by the tryal though it may prove prejudicial unto him A Postea is a record of this Court trusted with the Atturney in the cause by the Clerk of the Assize and the Atturney is bound if he be so trusted to deliver it into the Office that the Judgement may be entred by it by the Officer of the Court Trin. 1651. B. S. It is not necessary to annex the Distringas unto the Postea although it is usual so to do Trin. 1651. B. S. Presumption Where the Plaintiff doth declare in an action of Debt for Rent behind due upon an Indenture of Demise for years it shall not be Presumed that there is any other Rent due or Lease made then that upon and for which the Plaintiff doth declare Mich. 22. Car. B. r. For this would be a foreign construction and for which there is no inducement Where divers houses are let to one by one Lease the Court will Presume that the Lessee is in possession of them all if the contrary doth not appear Pasc 24. Car. B. r. For although the Lessee may possibly have passed away his interest in some of them to other persons yet this not appearing to the Court they will not presume it to be so One Court of Justice will not Presume that another Court of Justice will do unjustice except it do plainly appear unto them that it is so Pasc 24. Car. B. r. For each Court ought to have an honourable opinion of the proceedings of another Court Portes The Cinque Ports are not absolutely exclusive of the Common Law so that it may not intermedle in some Cases with the proceedings in their Courts Mich. 22. Car. B. r. For the Common Law is the universal and supreme Judge of the Nation and no place ought to be so priviledged either by custome or charter as totally to be exempted from its jurisdiction for this might cause a failer of Justice in some cases if it should be so A Writ of Error to reverse a Judgement given in the Cinque Ports is to be brought before the Warden and Constable of Dover Mich. 22. Car. B. r. Whether a Certiorari lies to any of the Cinque Ports hath been a question Pasc 23. Car. B. r. Yet a Certiorari was granted out of this Court to remove a Judgement given at Dymchurch in Kent being a limb of one of the Cinque Poots in Rook and Knights case Mich. 22. Car. B. r. Rot. 381. moved by Launcelot Johnson of the Inner Temple Property He that hath the Land that lies on both sides of a High way hath the Property of the soile of the High-way in him although the King hath the priviledge for his people to pass through it at their pleasures for the Law presumes that the way was at the first taken out of the Lands of the party that owes the Lands that lye upon both sides of the way Mich. 22. Car. B. r. By Rolle So that it seems it is called the Kings High-way because of the priviledge that the King hath in it for his people to pass and repass through it and not in respect of any Property he hath in the soile it self He that hath the goods of another person delivered unto him to keep hath a special Property in them by reason of the delivery of them and may maintain an Action against a stranger that shall take them out of his possession although they be not his own proper goods Hill 22. Car. B. S. Because an Action doth lye against him to whom they were first delivered by him that did deliver them if he shall not redeliver them when he is demanded to do it A Legatee of goods hath no Property in the goods bequeathed unto him before they be delivered unto him by the Executor or Administrator Mich. 23. Car. B. r. For the property of them is not altered by the Will The Rector of a Parish Church shall be intended to be the proprietor or owner of the tithes of the Parish if the contrary be not shewed Trin. 24. Car. B. r. Because generally tithes do belong to the Rector although in many places they do not If the Sea or a River shall by violent incursion and breaking forth carry away the soil of one in so great a quantity that he that had the Property in the soile can know where his Land is he shall have it but if his soil or land be insensibly or by little and little wasted by the Sea or the River he must lose his Land Pasc 1650. B. S. 11. Maii. If one to support the credite of a Bankrupt will suffer the Bankrupt to have his goods in his custody and to dispose of the Property of them the Property of the goods shall be accounted to be in the Bankrupt and the other upon a tryal for the Property of them shall be judged to have lost his Property in them Pasc 1651. B. S. 18. Ap. Because by so doing he was a cause in part that others were deceived by the Bankrupt whose credit he supported and therefore he is justly punished Partition A Partition of Lands ought to be made according to the quality and the true value of the Lands and not according to the quantity or equal number of Acres Hill 22. Car. B. r. For the Partition ought to be equal which is so in the latter but may not be so in the division by equality of Acres Payment Payment of money before the day of Payment appointed is in Law a Payment at the day Mich. 22. Car. B. r. For it cannot be in Presumption of Law any prejudice to him to whom the Payment is made to have his money paid before the time In an Action of Debt brought for Rent due upon an Indenture of Demise of Lands the Defendant may plead payment without a Deed and it is a good Plea in Bar of the Action Trin. 24. Car. B. r. Because the Lessee cannot compell the Lessor to make him any discharge by Deed or Writting upon Payment of the Rent If one buy any thing of another he that buyes it must pay the money contracted for to be paid for it before the seller is bound to deliver him the thing sold Pasc 24. Car. For the contract doth imply such a condition in it A Payment of money shall be interpreted to be made according to his intention that payes it and not according to his intention that receives it Mich. 1650. B. S. 22. Nov. For every one ought to interpret the intention of his own act and not another Procedendo If this Court do proceed to try a Custome of London there the Party may move for
a Procedendo that the cause may be removed into London that the Custome may be tryed there for it cannot be tryed here and so if a Procedendo should not be granted the cause would remain untryed and the party that brought the Action would be without remedy Hill 22. Car. B. r. After the Defendant hath filed Baile in this Court a Procedendo ought not to be granted much less after issue is joyned in the cause Pasc 23. Car. B. r. For by admitting of the Bail the Plaintiff hath admitted the jurisdiction of the Court and it is then too late to move for a Procedendo It is not necessary that a Procedendo do agree in form with the Habeas Corpus by which the cause was removed into this Court but it is sufficient if it do agree in the matter with it Trin. 24. Car. B. r. If the Defendant hath put in Bail in this Court upon the removal of the cause hither by Certiorari or Habeas Corpus cum causa if afterwards the Bail be disalowed by the Court if the Defendant shall refuse to put in better Bail such as the Court shall approve of a Procedendo may be granted to the Plaintiff to remove the cause back again to try it where the Action was first said Mich. 24. Car. B. r. For disalowing of the Bail makes the Defendant to be in the same condition as if he had put in no Bail If a Certiorari to remove a cause be returned before a Judge and not in Court and their follows no proceedings in the cause after the Certiorari returned if the party who is concerned will move for a Procedendo he must move for it before the Judge before whom the Certiorari was returned and not in the Court whether the cause is removed Mich. 1649 B. S. Because the Judge hath been formerly acquainted with the return of the Certiorari and may have better knowledge why it was granted and therefore the Court will not intermedle to undo what the Judge hath done Practice If the Atturney for the Plaintiff do tell the Defendants Atturney that he is content to stay for a Plea till such a time and yet doth in the mean time enter Judgment for want of a Plea this is not fair practice but if this be made to appear to the Court the Court will vacate the Judgement and force him to accept of a Plea Hill 22. Car. B. r. For the Law will not countenance fraud and falshood in the proceedings thereof but loves plain and fair practice It is not fair practice for the Defendants Atturney to Demur to the Plaintiffs Declaration without probable cause but onely to gaine time to plead Trin. 23. Car. B. r. For this is apparent cause of delay Peace and Justice of Peace A Justice of Peace in one part of York-shire is not a Justice of Peace throughout the whole County but onely in that division of York-shire where he is authorised by his Commission to be a Justice Hill 22. Car. B. r. This is in regard of the large extent of that County for in other Counties a Justice of Peace in every County is a Justice of Peace throughout the whole County The Peace was granted against one upon an Article sworn in Court amongst others that he did threaten to burn down the Plaintiffs house Hill 22 Car. B. r. For such menaceing words are accounted to be a breach of the Peace and such persons are dangerous persons in the Commonwealth and to be restrained from doing mischief A Justice of Peace ought not to binde a man to his good behaviour upon a general Information and if the party shall refuse to put in sureties for his good behaviour upon such an information yet the Justice ought not to send him to the Gaol for his refusal Pasc 23. Car. B. r. But the information must be particular and shew wherein the misbehaviour consists for accusatio generalis non est applicabilis personae particulari It is the duty of Justices of Peace to attend duly at the quarter Sessions and at the Assizes held for the County where they are Justices Pasc 23. Car. B. r. For there are the most important businesses which concern the Peace and Government of the County managed The Commission of Oyer and Terminer doth extend to Justices of the Peace Pasc 23. Car. B. r. A Justice of Peace may himself actually arrest and commit a Felon for a Felony done in his own view without any Warrant made to another to do it but he may not command one to be apprehended for Felony upon a bare information made against the party but by a warrant under his hand and Seal and not by Paroll Pasc 23. Car. B. r. It is the course used in the Capital Office to continue one that is there bound to the Peace to be so bound during his life but by Rolle Chief Justice this is not reasonable Pasc 1651. B. S. 13. Maii. If the person that is to be bound unto the Peace be a dangerous person and the cause for which he is to be bound do require great security a Justice of Peace may require him to find extraordinary sureties to be bound with him and in what sum he shall judge the cause doth require Pasc 1652. B. S. If this Court do see cause to bind one to the Peace they may do it although no person doth make Oath that he goes in fear of his Life of the party Pasc 1652. B. S. For such Oath is but evidence against the purty that there is cause to bind him to the peace and if the Court be satisfied that there is cause to do it without such evidence the not having of such an Oath is no hindrance unto them to do it If one do swear the Peace in Court against another that is doth make Oath that he goes in fear of his life or corporal hurt of him the party against whom this Oath is made ought to be committed if he do not find sureties for the Peace although there be no Articles exhibited and sworn against him Mich. 1652. B. S. Priviledge A Committee man of Parliament that is not a Member of the Parliament is not Priviledged from serving upon the grand enquest Hill 21. Car. B. r. A Clerk of this Court is not to be compelled to lay his Action out of that County where this Court doth sit Mich. 22. Car. B. r. By reason of the constant attendance he is bound unto in this Court No Priviledge is to be allowed to one that hath an Indictment preferred against him although he be a Peer of the Realm Mich. 22. Car. B. r. For an Endictment is at the sute of the King and against him no Priviledge is to be allowed One that was coming unto this Court to attend upon his cause was arrested as he was coming and was forced to put in Bail but upon a motion and making it so to appear unto the Court he and his Bail were both discharged Mich. 22.
amend it if it cannot be done without defacing and much altering of the Record Mich. 22. Car. B. r. The Court will not make application of a Record produced to the matter for which it was produced for the benefit of the party that doth produce it but the party and his Councel must do it Pasc 23. Car. B. r. For if the Court should do it it would be for them to act the part of Counsellors and not of Judges which they ought not to do A transcript of a Record which Record was amended in the Common Pleas may by leave of the Court be amended in this Court by a Clerk of this Court but without leave of the Court nor out of the Court it may not be done Pasc 23. Car. B. r. For a Record cannot be amended without a rule of the Court for that is called the leave of the Court for the Court speaks by their rules The Judges cannot judge of a Record given in evidence if the Record be not sub pede sigilli that is exemplified under seal but a Jury may find a Record although it be not so if they have other matter given them in evidence sufficient to induce them to believe that there was such a Record Pasc 23. Car. B. r. For the Judges are to judge onely de existentibus apparentibus but the Jury are induced by things which are but probable for the most part and accordingly they give their Verdict If a Record be removed into this Court by a Writ of Error and the Defendants Councel in the Writ of Error do not open the Record right as it is unto the Court this false opening of it shall not be prejudicial to the Plaintiff in the Writ of Error but he may examine the Record afterwards and rectifie the mis-recitals Trin. 23. Car. B. r. A Record may be contradictory in appearance and yet may in some case be nevertheless a good Record Trin. 23. Car. B. r. A Record that that is razed remains a good Record notwithstanding the rasure in it yet he that razed it is not to go unpunished for his offence Mich. 1649. Apparent faults of the Clerk onely in Records removed out of inferior Courts into this Court are amendable here by the Statute of 8. H. 6. Trin. 23. Car. B. r. But not other faults or errors in them Neither a Deed enrolled or a Decree in Chancery enrolled are Records but it is a Deed and a Decree Recorded Mich. 23. Car. B. r. For a Record of a Court is made up of the proceedinge in some cause in that Court When a Record is to be spoken unto in Court the Councel at the Bar ought to open the Record before it is to be read by the Clerk in Court by the custome of practice yet the Court may suffer it to be first read if they please Hill 23. Car. B. r. There was a rule of Court made that every Atturney of the Court shall enter the whole Record upon the roll after a Tryal had in the cause before the next Term after the tryal so had upon the pain of twenty shillings to be paid by every such Atturney that shall not do it towards the relief of the poor Hill 1649 B. S. That the Record may be spoken to the next Term after the tryal if there be cause which cannot be done untill the Record be perfected and so by this the not perfecting it the Clyent is delayed A Record cannot be removed by a Writ of Error untill the Judgement in that Record be entred Pasc 1650. B. S. 12. Maii. By Rolle Chief Justice it was the ancient custome to enter the Record of the Cause before the cause was carryed down to the Assizes to be tryed but this course was found to be inconvenient because it could not be amended after the entry of it and therefore now they use not to enter the cause before the tryal be past and therefore he ordered a rule to be set up in the Office that if the tryal do not proceed at the Assizes at which the Record was carryed down to be tryed and the Plaintiff will carry it down again that he give the Defendant new notice of the tryal and so likewise is the Defendant to do where he intends to try the cause by provisoe that the adverse party may not attend with his Councel and Witnesses to no purpose Trin. 1651. B. S. Relief A Relief is the fruit of a Rent-service Hill 21. Car. B. r. And it is twofold that is to say 1. A Relief at the Common Law And 2. a Relief grounded upon a custome Rescous An Endictment for a Rescous returned against one into this Court ought not be quashed although it be erroneous except the party that is endicted for it do appear personally in Court 21. Car. B. r. For he cannot in such a case appear by Atturney because the offence was criminal and personal An Endictment of Rescous ought to express the place where and the time when the Rescous was made or else it is not good for the incertainty of it Trin. 23. Car. B. r. So that the Defendant cannot tell what answer to make for himself An Endictment of one that was Endicted for a Rescous supposed to be made in the fifteenth year of King Charles was quashed for its insufficiency and yet the Rescouser did not appear personally in Court contrary to the common rule observed in such cases the cause thereof seems to be because it was an old Endictment and no proceedings had been made upon it against the party Pasc 24. Car. B. Request Where one is to do a Collateral thing he ought to be requested to do it but where the thing to be done is a part of the contract there needs no Request to be made to the party to do it 21. Car. B. r. For by the contract he hath taken notice at his peril to do it Where one brings an Action of Covenant for not paying of moneys according to the Covenant he needs not alleadge that he Requested the Defendant to pay them but where he brings an Action of Debt for money due by Covenant he ought to alleadge a Request Trin. 23. Car. B. r. Q. Where one is bound to make a special Request for the doing of a thing a general licet saepius requisitus in the Declaration is not sufficient Trin. 24. Car. B. r. For those words are too general and meer matter of form and a special Request ought to set forth the time and place and manner of the Request made In an Action of Debt brought for moneys due upon an Obligation it is not necessary to alleadge a Request Trin. 24. Car. B. r. For the very bringing of the Action is a demand of the money in judgement of the Law and the party was bound by his own Deed to pay the money at his peril One may make a Request by Atturney for the payment of moneys due upon an Obligation Mich. 24. Car. B. r.
Upon a contract in the nature of a Debt Request or no Request is not material but it is otherwise if the contract be a special contract for a Collaterall thing Mich. 1650. B. S. Repeal The Defendant cannot Repeal his Warrant of Atturney given to an Atturney to appear for him but he is compellable to appear by his Atturney according to his Warrant by the rules of the Court that he may not delay his appearance by that means to the prejudice of the Plaintiff Trin. 22. Car. B. r. Reversal The chief Justice or the ancientest Judge in the Court in his absence doth alwayes pronounce the reversal of an erroneous judgement to be Reversed by a Writ of Error openly in Court upon the prayer of the party and he pronounceth it in French to this effect Pur les errors avandit et auters errors manifest in les record soyt les judgement reverse le Defendant restore a tout ceo que il ad per ceo perd In English thus For the aforesaid errors and other manifest errors in the Record let the Judgement be Reversed and the Defendant restored to all that which he hath lost by it Trin. 22. Car. B. r. But now the Seignior Judge pronounceth it and doth it in English The Reversal of a Judgement may be pronounced conditionally that is that the Judgement is Reversed if the Defendant in the Writ of Error do not shew cause to the contrary at an appointed time Trin. 22. Car. B. r. Where divers persons stand Out-lawed for a forcible entry if the Out-lawry be erroneous it may be Reversed as to one of the persons Out lawed and stand good as to the others but the possession of the Land cannot be restored untill the Out-lawry be Reversed in the whole Hill 22. Car. B. r. The Judge will not pronounce the Reversal of an erroneous Judgement though it be adjudged to be erroneous except the Councel for the Plaintiff in the Writ of Error do pray it may be pronounced Hill 1649. B. S. 30 Jan. For the Judges are only to do justice to those that desire it Restitution and Rerestitution No Restitution is to be granted by the Court upon the suggestion of the insufficiency of an endictment of forcible entry or other matter untill the Certiorari granted to remove the endictment into this Court be returned Mich. 22. Car. B. r. For before the retâ—rn the Court hath nothing before them upon record to judg upon Where an endictment of forcible entry is quashed the Court upon motion doth usually grant the party endicted a Writ of Rerestitution to restore him to the possession of the Land yet the Court may if they please settle the possession of the Land in question according to their own discretions viz. where they shall conceive the most right to be for the possession Mich. 22. Car. B. r. There ought to be no Restitution or Rerestitution granted of the possession of Lands where it cannot be grounded upon some matter of record Hill 22. Car. B. r. A Writ of Restitution lies to restore one to the place of one of the Common Councell of London or to the place of a Constable if he be illegally put out of such a place Trin. 22. Car. B. r. Or to a Church-wardens place or to a Recorders or Town-Clarks place and generally to any publike Office or place of profit or trust but not to a private Office or place The words remisit relaxavit expressed in a Charter of pardon granted by the King unto one for a felony committed by him do not restore him unto his goods which he forfeited unto the King by being convict of the felony but there ought to be the word restituit which doth properly and in its genuine signification import a Restitution to a thing which he hath not whereas the words remisit relaxavit may signifie the remitting or releasing of the claim which one hath to a thing which is in his possession to whom the release is made Trin. 23. Car. B. r. The proper nature of a Writ of Restitution is to restore the party that hath it unto the possession of a free-hold or other matter of profit Trin. 23. Car. B. r. Yet this doth not generally hold for one may have a Writ of Restitution in some Cases to be restored to a place of no profit as is before expressed The Law doth oftentimes restore the possession to one without a Writ of Restitution to wit by a Writ of Haberefacias possessionem and otherwayes in common course and proceedings of justice Trin. 23. Car. B. r. A Writ of Restitution is not properly to be granted but in such Cases where the party cannot be restored by an ordinary way of justice or course of Law and many times such cases do happen Trin. 23. Car. B. r. If one be endicted for a forcible entry and the party endicted do traverse the endictment he cannot have restitution granted unto him before a tryall and a verdict and judgment also given for him although the endictment be erroneous Mich. 23. Car. B. r. Mich. 24. Car. B. r. For it is too late to move to quash the endictment after he hath taken his traverse and so the endictment must stand good against him till the tryall The Justices of Peace only before whom an endictment of forcible entry is found must give the party Restitution who was put out of possession by force and not other Justices of Peace of the County but the Judges of this Court may grant a Writ of Restitution though the endictment was not found before them Hill 23. Car. B. r. For they have a superintendent power over all England Where a Judgment for Land is reversed in this Court by a Writ of Error the Court may grant a Writ of Restitution to the Sheriff to put the party in possession of the Land recovered from him by the erroneous judgment Pasc 24. Car. B. r. There may a Writ of Restitution be granted to one that stands endicted for a forcible entry after he hath traversed the endictment and before the tryall if there do appear to be apparent delay in the proceeding of the Defendant upon the traverse else not as is aforesaid Trin. 24. Car B. r. There cannot be a Writ of Rerestitution granted where there doth not appear to have been a Writ of Restitution formerly granted in the Case Mich. 1650. B. S. For the very word Rerestitution doth imply that there was a Writ of Restitution formerly granted A Writ of Rererestitution may be granted upon a motion for it if the Court see cause to grant it By Ask Justice Pasc 1650 B S. 2. Maii. Upon an endictment of forcible entry found against the party if he do neither traverse nor plead to the endictment the party put out of possession may be restored to his possession without moving the Court. Pasc 1650. B. S. 22. Maii. Rule The Court will not make a Rule for a thing which may be done by the
is no place alleadged but an issue is joyned and the venire is de corpore comitasus and a Tryal is thereupon had this is good Tryal and there ought not to be a repleader Mich. 22. Car. B. r. For here is a good pleading and a good issue joyned and well Tryed and a repleader is to be onely where the Pleading is vicious and hath not brought the issue in question which was to have been Tryed If the Court do know that the Jury have given their Verdict against the evidence given unto them they may order a new Tryal to be in the case Mich. 22. Car. B. r. Q. Tamen For the Jury are upon their Oaths and it may be they know something of their own knowledge more then the evidence which moved them to give their Verdict so and the party against whom the Verdict is given is not without remedy for he may bring his Attaint against the Jury yet new Tryals have sometimes de facto been awardes in such oases There may be a good Tryal in a cause although the Defendants plea be ill Hill 22. Car. B. r. For the Tryal depends not upon the plea but upon the issue joyned and if there be a good issue joyned the Tryal is good what ever the plea be Where the Plaintiff will not try his cause after issue is joyned the Defendant may try it afterwards when he pleaseth Hill 22. Car. B. r. That he may free himself from the sute When the Defendants Atturney hath told the Plaintiffs Atturney what plea he will plead the Plaintiffs Atturney may give him warning for a Tryal although the issue be not made up in the cause Hill 22. Car. B. r. For after plea pleaded it is in the Plaintiffs choice whether he will reply or no for he may make up the issue when he pleaseth If a cause to be tryed be not entred into the Judges Book before whom it is to be tryed four dayes before the cause is to be tryed the Plaintiff may enter a ne receipiatur in the Judges book that it may not be entred after that to be tryed at that time if the Defendant please Hill 22. Car. B. r. If upon a Tryal to be had at the Bar the Jury be not ready at the day to try the cause the cause cannot be tryed at the Bar any other day of that Term without the consent of both parties Pasc 23. Car. B. r. For it would be too long to keep the Witnesses in Town to another day and if they should go out of Town it might be too short a time and too much trouble to bring them up again the same Term. The agitation of a cause in one Court is no cause to put off the Tryal of the same cause depending in another Court. Pasc 23. Car. B. r. For the proceedings of one Court of Law ought not to clash with the proceedings of another Court but it is not so betwixt the Courts of Law and the Chancery as it is a Court of equity The King may try his own cause in what Court he pleaseth Pasc 23. Car. B. r. By his prerogatine for they are all his Courts and it is not reasonable he should be streightned in his choice where he will proceed A local matter generally is not to be tryed in a foreign County but in the County where the cause of Action ariseth Pasc 23. Car. B. r. For there may the best knowledge of the matter be had and it is also for the greater ease of the people and less charge If one be committed to the Gaol for one Felony yet the Justices may try him for another Felony for which he was not committed Trin. 23. Car. B. r. By Bacon Justice A Decree in Chancery shall be tryed by a Jury and not by it self for it is not a Record but it is a Decree recorded Mich. 23. Car. B. r. And there is difference betwixt a Record and a thing recorded for a Record is a Judgement or other act recorded done in a Court of Record but the Chancery as it is a Court of equity is not a Court of Record but an arbitrary Court although it be a Court of Record as touching things agitated in the pettibag Office Although the Plaintiff after issue joyned and at the Assizes where he was to try his cause do enter a retraxit yet he may try the cause at the next Assizes after if he please for the retraxit doth onely import that he intends to forbear to try his cause hac vice onely and if he do not try it at the next Assizes after then the Defendant may if he will try it by provisoe and if the Defendant do not then try it by provisoe the Plaintiff may give new notice of a Tryal to the Defendant and try it at the next Assizes following Mich. 23. Car. B. r. One that is not served with process to give his testimony at a Tryal may not be examined upon a veire dire concerning any matter which concerns the Tryal Mich. 23. Car. B. r. A Tryal at the Bar ought not to be had for houses lying within the City of London Mich. 23. Car. B. r. If the Plaintiff give notice to the Defendant that he will try his cause that Term although it be not tryed at the day appointed yet he is not bound to give new notice of a Tryal if he try it any time within that Term for one notice is sufficient for the whole Term. Hill 23. Car. B. r. According to the old use of practice in this Court there ought to be but ten Tryals at the Bar in Easter Term. Pasc 24. Car. B. r. Because Tryals at the Bar are a great hindrance to other businesses which are more proper for the Court yet now they are encreased many times to donble the number If there be warning given for a Tryal and no Jury appear at the day there ought to be a new notice given if the party will try his cause at another day Pasc 24. Car. B. r. The consent of the owner of the Land to make one Ejector to try the title of the Land is good if it be not a plot betwixt him and the Ejector to oust the Lessee of the Land of his possession Mich. 24. Car. B. r. A Tryal at the Bar may not be had by the consent of the parties without leave of the Court Mich. 24. Car. B. r. For the Court is not bound Ex Officio to grant a Tryal at the Bar but it is in their discretion to grant it or not to grant it In a Tryal for substracting of tithes in an Action grounded upon the Statute of 2. Ed. 6. the Plaintiff ought first to begin with the proof of the value of the Tithes before he proceeds to shew his title to them Mich. 24. Car. B. r. It is a mis-tryal for a thing to be tryed before a Judge who hath interest in the thing in question and the request or consent of the
parties concerned in the Tryal will not help it Mich. 24. Car. B. r. For such a Tryal cannot be supposed to be indifferent for none ought to be Judge in his own cause A mis tryall is helped by the Statute of Jeofailes but not a voide Tryal to wit where there is no issue joyned to be tryed but in such cases there must be a repleader that the matter in question may be put in issue to be tryed Mich. 24 Car. B. r. The day for a Tryal ought to be entred into the Clerks book in the Office viz. the Clerk of the Papers Mich. 1649. B. S. And before it be so entred there ought not to be notice given at the Tryal Q. Tamen One that is a priviledged person in this Court ought not by reason of his priviledge onely to have a Tryal at the Bar granted unto him but there must be difficulty in the matter to be tryed or else it must be of great value Hill 1649. B. S. 4. Feb. A Tryal at the Bar ought not to be granted before the Defendant hath pleaded and issue be joyned Hill 1649. B. S. 11. Feb. 12. Feb. 1656. For before that the cause is not ready for a Tryal nor doth it appear that the parties intend to proceed to it Tryall Of latter times there hath been twenty Tryals granted to be at the Bar in Easter Term but not above Pasc 1650. B. S. 1. Maii. But anciently not above half the number Although the Defendant do go to a Tryal without sufficient notice given unto him of the Tryal and there be a Tryal accordingly this Tryal is not binding unto the Defendant but he may if he please have a new Tryal granted for want of due notice Pasc 1650. B. S. 19. Ap. For the Rules of the Court are not to be broken by the consent of the parties By the ancient practice of the Court all the Tryals at the Bar which are had in Easter Term ought to be tryed a fortnight before the end of the Term. Pasc 1650. B. S. 1. Maii. And the remainder of the Term was to be spent in other businesses more proper for the Court. In ancient times there were wont to be Tryals in Parliament by Juries but of latter times no such Tryals have been Pasc 1650 B. S. 24. Maii. The prosecutor in an information brought in this Court ought to bring the cause to a Tryal at his own costs but in an Endictment which is folely at the sute of the King he that is Endicted must bring the cause to a Tryal at his own charges Pasc 1650. B. S. 24. Maii. An information is preferred as well for the benefit of the informer as the King and therefore it is reason he should bring it to Tryal at his own charges If at a Tryal the Court do see that one of the parties is surprised but not by any fault or laches of his own but by some other casualty they may in their discretion put off the Tryal to another time untill the party surprised may be better provided for his Tryal Trin. 1650. 3. July B. S. For this is not to delay justice but to give time that clearer justice may be done In criminal causes Tryals may be at the Bar in Hillary Term and in Easter Term but not in other causes Mich. 1650. B. S. But onely in Michalemas and Easter Term. This was the old course but of late in some special cases Tryals have been granted to be at the Bar in Hillary Term and Trinity Term. The Court of Chancery will not stay a Tryal at Law by an injunction when the parties are ready for the Tryal and have expended their costs for the Tryal but after the Tryal they will grant an injunction to stay Judgement Pase 1652. B. S. If the Plaintiff in an Action of Trespass and Ejectment do bring his cause to be tryed at the Bar he cannot compell the Defendant to confess the Lease Entry and Ouster for the Tryal at the Bar was not granted in favor of the Defendant but of the Plaintiff but if the Defendant bring the cause to be tryed at the Bar there he must confess the Lease Entry and Ouster because the Tryal was granted to be at the Bar in his favor Pasc 1652. B. S. If a cause be appointed to be tryed in one Term and the Plaintiff doth not then proceed in his Tryal but rests for a year or more after if he will after so long time try the cause he must give the Defendant a whole Terms notice before his Tryal Pasc 1652. B. S. If a Tryal be had the last day of a Term Judgement cannot be entred upon that Verdict untill the next Term after By Rolle Chief Justice 1652. B. S. Nor till the four first dayes within the Term be passed for so long time hath the Defendant by the Rules of the Court to speak in arrest of Judgement It was said by Rolle Chief Justice that the City of Bristol will not bring a matter to be tryed here at the Bar no more then the City of London will 1654. B. S. If at a Tryal at the Bar in a Trespass and Ejectment the Plaintiff and the Defendant do consent that the Jury shall have a view of the Lands in question there can no Tryal proceed in the cause that Term. By Rolle Chief Justice 1654. B. S. It is not usual to grant a Tryal at the Bar the same Term it is moved for but the next Term after 1654. B. S. Yet sometimes upon special reasons it is done A voluntary Affidavit made before a Master of the Chancery is not to be given in evidence at a Tryal at the Bar. Pasc 1655. For a Master of the Chancery hath not authority to administer such an Oath and therefore if the party did swear falsly it is not perjury nor can he be endicted for it because it is Coram non judice and therefore such oaths are of little credit to be given in evidence If a Tryal be had and a Verdict thereupon given the same issue may not be tryed again by the Jury that tryed it before 1655 B. S. For it is more then probable they will give the same Verdict Traverse A Traverse ought to have an inducement to make it relate to the foregoing matter or else it is not good and formal Mich. 22. Car. B. r. If the Court shall change the venue and lay it in a County where the cause of Action did not arise the party may Traverse the County if he please and so draw the venue into the right County where the cause of Action did arise Trin. 23. Car. B. r. If one will take a Traverse to a Declaration he ought to Traverse that part of it that the doing thereof will make an end of the matter for which the Plaintiff declares and then is the Traverse good Pasc 24. Car. B. r. Where the Defendant hath given a particular answer in his Plea to all the material matters
contained in the Declaration there he needs not to take a Traverse Pasc 24. Car. B. r. Pasc 1648. B. S. For a Traverse is a denyal of a thing and when a thing is answered what need is there of a denyal of it Where there is a Disseisin and a descent alleadged in a Declaration if the Traversing of the Disseisin will make an end of all the matter there the Disseisin is to be Traversed and not the descent that is in such cases where by supposition the party may come to the estate by Disseisin Pase 24. Car. B. r. Where the Defendant hath confessed and avoided all the matter that is contained in the Declaration there he needs not to take a Traverse Pasc 24. Car. B. r. For a confessing and avoiding is a full answer of the matter alleadged and so there needs no Traverse of it Title If there be an Inquisition found by which the King is Intitled unto Lands and the Inquisition is not answered nor Traversed the Lands found in the Inquisition shall be suppossed to be in the hands of the Kings 21. Car. B. r. Because there appears nothing to the contrary to question the Kings Title If one be admitted to traverse an Office this admission of the party to the traverse doth suppose the Title to be in him 21. Car. B. r. If in an Action of Trespass and Ejectment neither the Plaintiff nor the Defendant can make out a good title then the party that hath had the most ancient possession of the Lands in question shall be judged to have the best Title Pasc 23. Car. B. r. Mich. 1649. B. S. For an ancient possession of Lands is a badge of a Title to them In Action of Trespass brought for taking away of goods the Plaintiff needs not set forth his Title to the goods Pasc 23. Car. B. r. For by the bringing of the Action and by the Declaration it is supposed that they were in his possession before the Defendant took them away from him and that possession is Title enough to maintain the Action He that is made Ejector to try the Title of Land is not bound to defend the Title of the Land if he whose Title is truely concerned will not save him harmeless if the tryal shall pass against him but he may confess a Judgement and save himself of the trouble which otherwise may befall him by being made Ejector Mich. 1650. B. S. The Officer of this Court whose title was to be called the Clerk of the Crown is now called and Intitled Coroner and Atturney for the Keepers of the Liberty of England by Authority of Parliament Mich. 1650. 24. Oct. B. S. But now that Title is also altred and he is called Coroner and Atturney for the Lord Protector Tenement A Tenement may be said to be any House Land or other such like thing which is any way held or possessed and it is a word of a very large and ambiguous meaning and therefore not fit to be used to denominate or express any thing which requires a particular description 21. Car. B. r. Tipstaff The Court will not grant an Attatchment against an Officer of the Court for a misdemeanor committed by him as an Officer of the Court but one of the Tipstaffs which are Officers of this Court called by that name by reason of a staff which they carry tipped with silver is to bring him into the Court. 21. Car. B. r. And they are in the nature of Messengers or Pursuivants c. If a Sheriff do commit a misdemeanor in relation to the Court during his Office and afterwards a new Sheriff is elected whereby the old Sheriff is out of his Office the Court may grant a Tipstaff to bring him in to answer the misdemeanor for being out of his Office the Court cannot fine him for his misdemeanor Pasc 24. Car. B. r. A Tipstaff is to be granted for one that is in London or Westminister but if he be in the Country an Attatchment is to be granted and not a Tipstaff Hill 22. Car. B. r. 23. Car. Pasc 1650. For the Tipstaffs are Officers to attend the Court and are not therefore to be sent out of Town Treason An intention of Treason if it can be proved by circumstances is Treason in the eye of the Law Trin. 22. Car. B. r. To shew the odiousness and greatness of the offence of Treason by punishing the very intentions of it which are not punishable in other offences criminal Time Where the Law doth not imply a certain Time for the doing of a thing nor is there any certain time agreed upon between the parties for the doing it there the Law doth allow the party a convenient Time for the doing of it Mich. 22. Car. B. r. To wit such as shall be adjudged reasonable In some cases one hath time during his life for the doing of a thing if he be not hastened to do it by request of the party for whom it is to be done but if he be hastened by request then he is bound to do it in convenient Time after such request made Hill 22. Car. B. r. Trespass An Action of Trespass doth lye for him that hath the possession of goods or of a house or Lands if he be disturbed in his possession Mich. 22. Car. B. r. If goods be taken by the Sheriff in Execution and the goods be rescoued out of his hands an Action of Trespass lies against him that did rescue the goods Hill 22. Car. B. r. viz. By the Sheriff or by the party at whose sute they were taken and the party may be endicted for a rescous also at the sute of King for disturbing the peace and hindring the Execution of the Law One Action of Trespass may be brought for a Trespass committed in Lands which lye in several Towns or Vills Pasc 23. Car. B. r. So that those Vills do lye in one and the same County An Action of Trespass doth lye for a Parson against him that doth take away his Tithes after they are set forth Pasc 23. Car B. r. For after they are set forth the person hath a property in Law in them although the Parson never had an actual possession of them If divers Actions of Trespass be brought for one and the same cause with an intent onely to vex the Defendant if the Court be moved in it and proof thereof made by Affidavit the Court will order the Plaintiff to joyn all his Actions into one Pasc 23. Car. B. r. For the Judges of the Law do not favor unjust vexations of the people If one do carry another with force into the house of a third person he who carries the other by force into the house is the Trespassor unto the third person and not he who is carryed thither by force and so if one do drive my cattel into the ground of a third person he that drives my cattel into the ground is the Trespassor and not I who am owner of
be warning given to the Defendant of the tryal 1655. B. S. Executor If one be indebted to I. S. in a certain summe of mony and I. S. makes his Will and deviseth this debt due unto him unto A. B. and makes I. L. his Executor and dyes this debt devised unto A. B. must be paid unto I. L. the Executor and not to A. B. the devisee Mich. 22. Car. B. R. For the Executor and not the Devisee can give a sufficient discharge for this debt If a Scire facias be brought against an Executor to shew cause why he should not pay a Debt unto the Plaintiff recovered against the Testator the Executor cannot plead fully Administred but he must plead that no goods of the Testators are come to his hands whereby he might discharge the Debt Mich. 22. Car. B. r. For he may have fully Administred and yet be liable in Law to pay the debt demanded upon the Scire Facias An Executor which hath Administred goods of the Testator as Executor or that is Executor of his own wrong by disposing of the goods of the party deceased without authority given unto him cannot waive a term of years for Land c. of which the deceased dyed possessed of Mich. 23. Car. B. R. For he hâ—th charged himself to be answerable to all persons concerned as far as the deceased parties personal estate will amount unto But if he have not Assets he may waive the Term. Trin. 24. Car. B. r. An Executor of his own wrong is not by Law chargeable for more then the value of the goods of the deceased doth amount unto and which did come unto his hands and with which he hath intermedled Mich. 23. Car. B. r. The word Executor is a word collective and doth comprehend in it the Executor of an Executor Hill 23. Car. B. r. For he is accountable for the first Testators goods An Executor may recover a duty which was due to the Testator although the Executor was not named in the creation of that duty Trin. 24. Car. B. r. For he represents the very person of the Testator An Execut or may be charged upon a Collateral promise made unto the party by the Testator if the promise was broken in the life time of the Testator else not Mich. 149. B. S. And 16. April 1650. B. S. Escape An Administrator may bring an Action of Escape for an Escape suffered of a Prisoner of the Intestate in his life time Trin. 23 Car. B. r. An Escape in one place is an Escape in all places so that for an Escape the party whose prisoner is escaped may bring an Action for this Escape in what County he pleaseth for the Action is not Local or fixt to any certain place Trin. 24. Car. B. r. But transitory Endictment An Endictment that is framed upon a Statute ought to pursue the words of the Statute Trin. 23. Car. B. r. The Justices of Assize will stay the proceedings against a person for a thing done by him during the time of war and in relation to the war Trin. 23. Car. B. r. For Indictments are to be preferred against persons that act any thing in the disturbance of a peaceable and setled Government If any one be perjured in an Affidavit made in any Court of Record touching any Cause depending in that Court an Indictment may be preferred against him for this perjury upon the Statute Trin. 23. Car. B. r. An Indictment of forcible Entry doth not lye upon the Statute of 8. H. 6. against one for entring forcibly into a Copy-hold but an Endictment doth lye in such a Case by the Statute of 21. Jacob. Hill 23. Car. B. r. Although exceptions be taken against an Endictment to the intent the Court should quash it yet the Court will grant time to maintain the Endictment unto the Kings Councel if they desire it Hill 23. Car. B. r. The Court doth not usually quash Endictments for perjury although the Endictments be faulty but will put the party to plead to the Endictment Hill 23. Car. B. r. For perjury is counted a great offence and therefore the Court doth not favour such offenders An Endictment ought to be more certain then common pleadings in Law need to be Hill 23. Car. B. r. An Endictment ought to express the year of our Lord in which it was taken Hill 1649. 30. Jan. B. r. If an Endictment be drawn so generall and so uncertain that the party Endicted cannot tell how to make a certain answer unto it such an Endictment is not good but may be quashed Pasc 24. Car. B. r. If a word be left out in an Endictment which is but onely in matter of form yet the Endictment is good but if be in matter of substance it is not good Trin. 24. Car. B. r. If one be Endicted for doing of any thing for which he is not by the Law to be Endicted for as for the enclosing of a Common or some other Trespas for which an Action at the Common Law is to be brought such an Endictment is not good but may be quashed Pasc 24. Car. B. r. If one do interrupt a long continued possession of Lands by an unlawful means and the person that is so interrupted of his possession do regaine his possession by unlawful means also yet an Endictment of forcible entry doth not lye against him for doing thereof Mich. 24. Car B. r. For the Law favours long possessions and doth not countenance the disturbers of them In most Cases the Endictment for a Fact done ought to be laid in that County where the Fact was done But this holds not in all Cases Mich. 24. Car. B. r. And Mich. 25. Oct. 1650. B. r. If one be Endicted at a Sessions in London or in any other County and the party Endicted do remove the Endictment by a Certiorari into this Court and do not thereupon quash the Endictment the party that did remove it ought by the Rules of the Court to try the Endictment at his own costs the next Term after that the Indictment is removed 13. Nov. 1650. B. S. Exposition The best Exposition of the Starute Law is to be had by the consulting with the makers of them and how they did in their times interpret them Hill 23. Car. B. r. For they knew best for what end they made the Statutes Contemporarea expositio legis est optima The word videlicet in a Deed is put to expound or make plain the premises of the Deed in which it is put and therefore that which it brings in ought not to be contrary to it for if it be the videlicet is void Pasc 23. Car. B r. If all the words of a Deed can stand together without any absurdity the Law will make such an exposition of them that the whole Deed may be good in Law Pasc 24. Car. B. r. Election An Action of Trespas upon the Case or an Action of Trespas vi armis may be brought against one
entred upon the Judgement and so the Judgment in the Trespass and the Act of Oblivion are both satisfied 1651. B. S. One may speak in Arrest of a Judgement given upon a nihil dicit after the Writ of Enquiry of dammages is executed upon that Judgement Mich. 23. Car. B. r. Infant An Infant ought not to appear to an Action brought against him by his Atturney but he must appear by his Guardian Pasc 24. Car. B. r. For he cannot make an Atturney and the Guardian is Assigned but with the consent of the Infant by the Court Trin. 24. Car. An Action of Debt doth lye against an Infant upon his promise to pay for necessaries as meat and drink lodging and apparel but if the Infant and the party from whom he had these necessaries do come to an account and reduce that which the Infant is endebted for them to a certain sum of money and upon this account the party brings an Action against the Infant for the money stated to be due by the account this Action will not lye against the Infant Trin. 24. Car. B. r. For the account upon which the Action is grounded is void for an Infant can agree to no such account Justification Where the Action concerns a transitory thing if the Defendant do justifie the taking or doing in one place this is a Justification in all places but if the Action concern a local thing a Justification in one place is not a Justification in another place Pasc 24. Car. B r. For in the former Case the place is not material but the meer doing or taking of the thing but in the latter the place is material for the Defendant it may be may be able to Justifie in one place and yet may be guilty in another place Jurisdictions The essentiall difference betwixt Free Chappels and other Churches and Chappels is that all free Chappels are free from the Jurisdiction of the ordinary Hill 23. Car. B. r. So that the ordinary is not to intermeddle with them in any thing that doth concern them or to visit them whereas all other Churches and Chappels are within the Jurisdiction of some ordinary and may be visited The Jurisdidiction of a Court where a cause is depending cannot be extended further in relation to that cause by the Consent of the Plaintiff and Defendant then of right it ought to extend Pasc 24. Car. B. r. For this would be for the parties to erect as it were a Court which was not before for the tryal of their cause and by this means the Jurisdictions of every Court would grow to be unlimited This Court hath no conusance of the proceedings in Parliament Pasc 24. Car. B. r. So held in John Lilburns Case because the Parliament is the supreme Court and subject to no other Court. This Court hath a general Jurisdiction to reform the abuses of all persons in their behavior throughout all England and the abuses and miscarriages of all Courts of Justice throughout all England 9. Feb. Hill 1649 B. S. 3. Julii 1650. B. S. If the Court of Chancery do grant a Habeas Corpus to a prisoner that is in the custody of the Marshall of this Court this Court hath not power to restrain the prisoner so long as the Habeas Corpus is in force 3. July 1650. Trin. B. S. In the Case of Sir Arthur Smithes and Workman This Court hath Jurisdiction over all the Courts of England in all Mandatory Writs 10. Feb. 1650. B. S. Injunction An Injunction out of the Court of Chancery doth not lye to stay execution after a Judgement given at the Common Law although the Bill upon which such Injunction is granted were put in before the Judgement given at Law for although the Chancery make a difference between exhibiting the Bill before the Judgement given and the exhibiting a Bill after the Judgement given yet this is no good difference for it is a like in both Cases Trin. 23. Car. B. r. But the Chancery may if there be cause stay proceedings at Law before Judgement given Information If by a penal Statute he that prefers an Information against another for an offence done against this Statute is to have half of the penalty which shall be recovered upon this Information there if an Informer do prefer an Information upon the Statute before any Information is preferred by the King the King cannot hinder the Informer from having his proportion of the penalty given him by the Statute but if the King do first prefer the Information he may Inform for the whole penalty Pasc 23. Car. B. r. For the King is not bound to stay till an Informer prefer the Suit but may sue at any time and if no body Inform none hath right to the penalty but the King and he may pardon it If the Marshall of the Kings Bench do misdemean himself in his office to the prejudice of any person he who is prejudiced by his misdemeanor may prefer an Information against him in this Court Hill 23. Car. B. r. And if he be found guilty upon a tryal thereupon had he may be fined by this Court or put put out of his Office if the Court shall see cause to do it The Clerk of the Crown ought not to set his hand to an Information without examining the cause for which it is preferred Pasc 24. Car. B. r. For if there be not at least in probabilities good matter in Law to ground an Information upon the party that doth prefer it is not to be assisted and encouraged in it for the Law doth abhor vexations and causeless suites An Information may be preferred in this Court against the Inhabitants of any Town or Village in England for the not repairing the High-wayes which by Law they are bound to repaire Mich. 1649. B. S. For this Court may punish offences done against the Weal Publick all England over If an Information be preferred at the Suite of the party there the Endictment ought to be brought to a tryal at the charges of the party that prosecutes the Endictment but if an Endictment be preferred at the Suite of the King there the Endictment shall be brought to tryal at the costs of the party against whom the Information is brought Pasc 1650. 24. Maii. B. S. Although an Information be faulty in the body of it yet upon a motion the Court will not quash it but the Defendant must demur to it for its insufficiency Pasc 1650. B. S 24. Maii. Justice of Peace A man may be a Justice of Peace in one part of Yorkeshire and yet not be a Justice of Peace in every part of the County Hill 22. Car. B. r. For Yorkshire is divided into divers parts called Ridings viz. into the East Riding West Riding and North Riding and he may be a Justice of Peace in one of those Ridings and yet not a Justice of Peace in another of those Ridings but generally a Justice of Peace of a County is a Justice of