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
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
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
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
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
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
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.
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.