too generally expressed and cannot be levyed equally by such a tax 5ly The Plea sets not forth that there was any notice given to Whitley of the tax made before the distresse taken as there ought to have been and for these reasons he concluded that the Plea was not good Bacon Iustice held first Waiver that the Party had waived his benefit of the Plea given him by the Statute by pleading specially and he ought to make good his plea as he hath pleaded it at his own perill He held likewise that there ought to be notice given of the tax and a demand of it before any distresse might be taken and that the Plea was defective in this 3ly Notice That he cannot sell a strangers goods for the tax as Whitley is for ought that appears in the Plea 4ly Demand By the Plea it appears that he hath distrayned one Acre of Land for all the tax which ought not to be and upon these exceptions the rule was for the Defendant to shew cause before the end of the Term why the Plaintiff should not have Iudgement Sr Maurice Abbot Pasc 23 Car. Banc. reg SIr Maurice Abbot had a Iudgement against one and dies Motion to Vacate a Iudgement and three years after Execution is taken out in his name upon the Iudgement the Court was moved to vacate this Iudgement but would not for they said that there was no help in this case but by bringing a writ of Error ☞ Error except there can be any fraud proved in the proceeddings and then the Court will take order to help the Party grieved Fraud And thereupon ruled to examine the Attorney and the Partyes whether there was due proceedings or no. Vill de Charleton in Kent Pasc 23 Car. Banc. reg A Man was killed at Charleton in Kent Motion to quash a presentment and take off Amercements upon which the Coroner takes an inquest and returns it into the Crown Office upon this a presentment was drawn up in the Crown Office against the Vill. of Charleton and found and thereupon issues went out against the Vill It was moved for the Vill to have them discharged by reason that the presentment was not good for it was grounded upon the Statute of 3 H. 7. chap. and sets forth that such a person was killed at Charleton and that the murderer fled away in the night by which it appears that the Vill. is not lyable to be amerced within the Statute for the murtherer ought to escape in the day by the Statute Amercements and not in the night and for this it was quashed and the Amercements discharged 23 Car. Banc. reg THe Court was moved to quash an order of sessions For quashing an order of the Sessions of Peace for keeping a Bastaâ—d made for the keeping of a Bastard Child and these exceptions were taken to the order First the order was that the Party should pay a weekly sum for the keeping of the Child whereas no such order could be made without the Parties consent for by the Statute he is only compellable to secure the Parish where the Child was born that it should not be any charge to the Parish Another exception was that it appears not that the Iustices had any power to make any order at all in the case for it appears not where the Child was born and so it may be it was born in an other County where these Iustices have no authority to Act any thing concerning it Vpon these exceptions it was quashed THe Court was moved for a certiorari to the Court of Sandwitch For a certicratio to remove Endictments out of one of the Ciâ—que-ports to remove four Endictments there for shooting in a Gun and pulling up of a post because the facts for which the Party was Endicted were not done within the Iurisdiction of the Court But because Sandwitch was one of the Cinque-ports and it had been a question heretofore whether this Court could send such a writ thither The rule was only for cause to be shewn why a certiorari should not be granted Tory. Pasc 23 Car. Banc. Reg. TOry brings an Action of Trespass and false imprisonment against I. S. simul cum aliis c. The Defendant pleads not guilty Arrest of Iudgement in an Action of Trespasse and a Verdict is given against him for the Plaintiff It was moved in Arrest of Iudgement that the declaration was not good because it declares against I. S. by name solely and it ought to have been joyntly against him with the others naming them also because the trespass was joynt and not against I. S. alone but the Court held that the declaration was good because it was with a simul cum although the Persons were not named Declaration and said that this was the constant course of the Common Pleas And that an ejectione firmae against one simul cum had been ruled to be good Ejectio ne â—â—mae and so used in the Common Pleas although heretofore it hath been adjudged to the contrary yet the Iudgement was stayed till the other should move Jones against Young Pasc 23 Car. Banc. Reg. Hill 22 Car. rot 1857. IOnes brings an Action of Assault and Battery against Young Young justifies as servant to I. S. because Error to reverse a Iudgment against the Plaintiff in Trespasse that Jones came to fish in the several Piscary of his Master Iudgement was given for the Defendant A writ of Error was brought and two exceptions taken 1. That whereas Young had in his Plâ—a of Iustification entitled his Master to the several Piscary by the Kings Letters Patents he had not shewn that the King was seised of this several Piscary jure Coronae and so it might be the King had no power to grant it 2ly He doth not shew his Letters Patents which he ought to do because he derives a title by them Title The rule was to shew cause Saturday next why the Iudgement should not be reversed The Earl of Lecester against Mrs. Samford Pasc 23. Banc. Reg. IN a Trover and Conversion brought by the Earl of Lecester against Mrs. Samford for certain Iewels the Trover being laid to be in Kent but the Offring the goods to sell being the Conversion of them being in London It was doubted where the tryal should be and the Court sayed that generally a transitory Action is to be laid where the fact was done Venire yet the Party is not tyed to lay it there but may lay it in another County and in this case it was held by the Court that the Plaintiff may bring his Action where the Iewels were sold and that was in London as well as in Kent where the Trover was laid Trover for part of the ground of the Action to wit the Conversion was in London though part of it namely the Trover was laid to be in Kent Basely and Baseley Pasc 23
and that cannot be known how much it may be and consequently there is no award but both parties are at liberty to go to law as they were before An incertain award not good and so no end is made between them by the award according to the intent thereof and these books were cited against the award 20 Ed. 4. fol. 1. et 4.9 H. 7 fol. 14.8 Ed. 4. fol. 20. It was ruled by the Court to shew cause why Iudgement should not be against the Plaintiff per nil capiat per billam The King and Place Trin 23 Car. Banc. Reg. THe Case between the King and Place adjourned Error to reverse a Judgment upon an Endictment upon the Statute Scandalum Magnatum Pasc 23 Car. was again moved which was this Place was indicted before Finch and Crawley Iustices of Oyer and Terminer for these words spoken against the Queen mother of France viz. the Queen mother is the Whore of Babylon and is a Whore and hath had a Bastard and all the Noblemen that will not ioyn with me against her are Rogues and Rascalls To this endictment the Defendant pleaded and was found guilty by the Iury and Iudgement given against him Whereupon he brings his Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. against the body of the Endictment it self and that he ought not to be Endicted for the words because they are neither spoken against the Common law nor against any Statute law 2. Against the proceedings upon the Endictment which were against law being too speedy for he was Endicted before Iustices of Oyer and Terminer and tryed in one day whereas there ought to have been 15. days betwixt the preferring of the Endictment and the tryal 3. The Venire is against law for the Court did chuse try and swore the Iury which ought not to be 4. Part of the Iudgement is that the Defendant shall be bound to his good behaviour which cannot be upon such an Endictment as was before them 5. The Endictment doth not say that the words were spoken contra pacem 6. Part of the Iudgement is that he shall be set upon the Pillory and lose his cares which no law warrants but only to be set there to the view of the people Imprisonment with a paper on his head 7. The Iudgement is that he shall be imprisoned for a year without bail which ought not to be To this last exception the Court answered the party might be so committed But they said that the Iustices of Oyer and Terminer cannot try an Endictment the same day nor Iustices of peace at the same Sessions in which it was preferred Tryall and they cited one Barnabyes Case 13 Car. and Pridians Case 6 Car. 22 E. 4. et Plow 44. But they said Iustices of Eyr may try an Endictment the same day Roll Iustice said the Kings Bench is a Court of Eyr in the County where it sits Eyr and therefore they may try an endictment removed here out of the same County the same day but not if it be removed hither out of another County for in that case it is only a Court of Oyer and Terminer But Bacon denied it and said so was my Lord Cooks opinion and it was also said that Iustices of Oyer and Terminer cannot proceed upon an Endictment which is not taken before themselves but Iustcices of Gaol delivery may and the Court also held that the juratores electi tryati et jurati by the Court as it must necessarily be here understood Iury. was illegal for the Iury ought to be electi by the Sheriff out of the County and lastly the Court held that legally there ought to have been 15 dayes between the Endictment and the tryal and for these reasons ordered to give notice to the Kings Sollicitour or Serjeant to shew cause why the Iudgement should not be reversed Hill and Farmer Trin. 23 Car. Banc. Reg. Hill 17 Car. rot 674. AN Action of Debt was brought in the Common pleas upon an obligation Error in Debt upon an obligation and a Iudgement upon a demurrer was given for the Plaintiff the Plaintiff brings a Writ of error in this Court to reverse the Iudgement and Assignes for Error that the Obligation upon which the Action was brought and Iudgement was given is a void obligation by the Statute of quinto and sexto of Ed. 6. made against buying of Offices But Roll Iustice answered that the Iudgement in the Common pleas was given upon a mispleader there and therefore you should make that good first before you move new matter And there is another Error also in the pleading which was not touched upon in the Common pleas which is this first the plea is of the Office of the delivery within the Office of the Armory Declaration and after he referrs the plea to the Office of the Armory which is another Office and so she Declaration is double Another exception was that the word Armentarius was used for Armamentarius Monday following was given to shew cause why Iudgement should not be reversed The King and Marshall Trin. 23 Car. Banc. Reg. MArshall brings a Writ of Error to reverse a Iudgement given against him upon an Endictment of barratry Error upon an Endictment and takes these exceptions 1. That it doth not appear in the Endictment before what Commissioners the Endictment was taken upon which the Iudgement was given and so the Endictment is not good for the incertainty of it and consequently the Iudgement is erroneous that is given upon it for it ought to appear by the Endictment that it was taken before the Iustices of Assise or Iustices of Peace or of the Gaol-delivery 2. The Iudgement is quod solvat tantam denariorum summam and shall find sureties for the good behaviour and this is rather an award than a Iudgement To this exception Roll Iustice answered Iudgement if it be a good order it is a good Iudgement and the order is part of the Iudgement yet let the Kings Councell have notice and the Prosecutor shew cause why the Iudgement should not be reversed Trin. 23 Car. Banc. Reg. VPon a verdict given in an ejectione firmae it was moved in Arrest of Iudgement Arrest of Iudgement in an ejectione firmae and the exception was that the Plaintiff was ejected de uno Crofto which was said to be of an uncertain signification and because the Plaintiff conceived the Court doubted whether an ejectione firmae lay of a Croft he durst not defend it but moves for a special Iudgement for the rest of the land contained in the Declaration and prayed that he might release the damages as to the Croft Rolle Iustice doubted whether an ejectione firmae lyes de uno Crofto Ejectione firmae Formedon Assise and said that a Formedon lyes not of a Croft but that an Assise doth because it is put in view to the recognitors but a
Lincoln Admission Iurisdiction Prohibition Proceedings that the cause of Action if any were arose in the body of the County of Lincoln and not within the jurisdiction of the City of Lincoln Hales on the other side said they had admitted the jurisdiction of the Court in that they had not pleaded to it But Roll Iustice said inferiour Courts are limitted in their jurisdictions and ought to be kept in order by prohibitions if they exceed and if they proceed in matters not within their jurisdiction their proceedings are void Adjourned to the next Term. Trin. 23 Car. Banc. Reg. THe Court was moved for a Prohibition to an inferior Court For a prohibition to an inferior Court Admission but on the contrary part it was said that they moved too late for they had admitted the jurisdiction of the Court by pleading and cited 9 H. 7.12 and Fitz. jurisdict 19. Bacon Iustice said it is here in a Court of Common Law and not in the spiritual Court or Admiralty and therefore a Prohibition may be here granted notwithstanding the pleading there Prohibition but had it been the spiritual Court or the Admiralty it had been otherwise But Rolle Iustice said it was all one in the spiritual Court or Admiralty as it is in this case if they exceed their jurisdiction Iurisdiction Yet it is mischeivous to grant a prohibition in this case for thereby many Iudgements will be stopped Therefore the Court would advise to the next Term but stayed nothing Trin. 23 Car. Banc Reg. THe Court was moved that the undersheriff might return a Iury because the Sheriff For the undersheriff to return a Iury. Return Surm se Petigree Attorney and Coroner were of kinn to the Plaintiff the Court thereupon demanded whether they had brought in the surmise and proved the petigree to which they answered They had thereupon they were bid to name some Atturneys of the Country which was done and thereupon a rule made that they should return the Iury. Nota. Trin. 23. Car. Banc Reg. THe Court was moved for a rule to stay proceedings in the Court at Maidston in Kent To stay proceedings gâ—â—â— the Court at 〈…〉 because a supersedeas could not be granted for that nothing erroneous issued out of this Court But the Court answered that a supersedeas might well be granted and so said Hodsden the Secondary although nothing erroneous be issuing out of this Court and Bacon Iustice said that the Writs of the Court are as good and of as much force as the rules of Court Writs Rules and therefore we will make no rule to stay their proceedings but you shall have a supersedeas if you will Person and Dawson Mich. 23 Car. Banc. Reg. AN Action of the Case was brought by Person against Dawson for these words Arrest of Iudgment in an Act on for words your Son innuendo your Son William stole a horse and sold him for ten pounds The Plaintiff hath a Verdict the Defendant moved in Arrest of Iudgement that the words are not actionable because uncertain Case VVords and the innuendo cannot help them and the Iudgement was stayed till the other should move It was afterwrads moved again and the Iudgement stayed and this Term Iudgement given for the plaintiff Mich. 23. Car. Banc. Reg. THe Court was moved to quash an Endictment upon the Statute of usury To quash an Endictment upon the Statute of usury Pursuance The exception taken was that it is not said corrupte agreavit nec accepit and so the Statute is not pursued Roll Iustice said that it is the corrupt receiving and the corrupt contract upon which Endictments are framed upon the old Statute viz. 3. Jac. c. but if the Endictment be framed upon the Statute of 21 Jac. there it ought to be upon the corrupt contract and because this Endictment is framed upon the Statute of 21 Jac. and mentions not the corrupt contract it is not good and therefore let it be quashed Yates against Lyndon Mich. 23 Car. Banc. Reg. MAry Yates brought an Action upon the Case for speaking these words of her Mary Yates is a Sorcerer and a Witch and a white Witch Arrest of judgment in an Act on for words Case Statute Witchcraft she can witch and unwitch and hath a Verdict The Defendant moved in Arrest of Iudgement that the words are not actionable because the Plaintiff is not by the speaking of them brought within the Statute of 21. Jac. against Witch-craft But Roll Iustice doubted whether the word Sorcerer did not bring the Plaintiff within the Statute Yet Iudgement was stayed till the Plaintiff should move Hill the same year it was moved again and the Court adjudged Nil capiat per billam for they held the words not actionable Turner and his VVife Mich. 3 Car. Banc. Reg. TUrner and his Wife brought an Action upon the Case for these words Arrest of Iudgement in an Action for words spoken of the Wife she is a Witch and I will take my oath of it The Plaintiffs had a Verdict The Defendant moves in Arrest of Iudgement that the words were not actionable for to say one is a Witch and to say no more is not actionable and the last words I will take my oath of it do not enlarge the former words VVords The Court arrested Iudgement till the Plaintiff should move Paradine and Jane Mich. 23 Car. Banc. Reg. Hill 22 Car. rot 1178. PAradine brought an Action of Debt for rent due for lands Argument in debt for rent upon a lease for yeares let for years unto Iane the Defendant and declares particularly how much rent was due and for what time The Defendant pleads a special Plea to this effect as to part of the rent for which the Action is brought he confesseth the Action As to the rest he pleads that Prince Rupert an Alien and an Enemy of the King invaded the land with an Army and with divers armed men did enter upon him and did drive away his Cattell and expelled him from the lands let unto him by the Plaintiff and kept him out that he could not enjoy the lands for such a time and demands judgement if for the rent incurre during that time the Plaintiff ought to have his Action Demurrer To this Plea the Plaintiff demurrs and for cause saith that it is neither good in matter nor form The 1. question was whether a Lessee for years ousted by an Army or Aliens can plead it in Barr Plea Debt contract VVâ—st in an Action of Debt brought for rent due upon the Lease And to this it was said that this is an Action of Debt and lyes meerly upon the contract between the partyes and so this collaterall matter pleaded is nothing to the purpose but had it been an Action of wast if the wast had been done by Pr. Rupert and his Soldiers it may be it might have been pleaded to bar the Plaintiff 19.
of Infamy and disgrace and not of dammage to the Plaintiff But it was said that it had been adjudged that an Action did lye for saying one had been endicted of Barratry where the party that was endicted was acquitted and for saying one was a Banckrupt Rogue But because Panel of Councel with the Defendant said Presidents he could shew Presidents that the words are not actionable the Court forbore to give Iudgement but desired to see them and gave him time to bring them in another day Panel cited two Presidents but no Iudgement in either Whereupon Iudgement was given for the Plaintiff Blackwell and Ashton Trin. 23 Car. Banc. Reg. FOwer several persons were bound conjuctim and divisim in an Obligation to Blackwell Demurrer to a Scire facias upon a Judgement Demurrer Abatement Blackwell hath a Iudgment against them one of the Defendants dies Blackwell sues out a Scire facias against the 4. and it was demurred to the Scire facias because one of the Defendants against whom the Iudgement upon which the Scire facias was granted was dead when the Scire facias issued forth In this case it was said if two be bound joyntly in an Obligation and an Action be brought against one of them only upon this Obligation the Defendant cannot demur but may plead in Abatement of the Writ And if two be bound joyntly in an Obligation and one of them dye and the Obligee brings an Action of Debt against the other that survives he must in his Declaration set forth that the other is dead The Plaintiff in the case at the Bar perceiving the inclination of the Court to be that the Scire facias was not good Scire facias moved for his own expedition to have it quashed which was granted Lodg and Weeden Mich. 23 Car. Banc. Reg. THe Plaintiff brings his Action upon the Case against the Defendant Arest of Judgment in an action upon the Case and declares that the Defendant had killed divers infected Cattel and had thrown out the inwards or offall of those Cattel upon the Close of the Plaintiff whereby divers of the Plaintiffs Cattel were infected with the murrain and did dye thereof and shews how many and declares to his dammage so much and hath a verdict against the Defendant The Defendant moved in arrest of Iudgement and offers these exceptions 1. The Declaration is that the Plaintiffs Cattel were infected morbo mortali Anglice with the murrain whereas there is a proper Latin word to express the Murrain VVords namely Lues which ought to have been used and not to be expressed by such uncertain words as morbus mortalis is which signifies only a mortal disease and so might be any other Disease as well as that 2ly The Declaration says that the Defendant did cast interioria Anglice the inwards or off all of the Cattel whereas that is not the proper Latin word for them but Intestinâ— 3ly The Declaration doth not set forth what Cattel they were nor how many they were that the Defendant had killed and thrown their inwards or offall on the Plaintiffs Close But the Court over-ruled all the exceptions and ordered the Defendant to shew better cause why the Plaintiff should not have judgement Rawson and Bargue Trin. 23 Car. Banc. Reg. Vid. antea THe case between Rawson and Bargue upon the special Verdict found in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes Arguments whether a Free Chapel or not within the Statute of 2 Ed. 6. Statute Free Chapel wherein the Question was whether the Chapel was a free Chapel and given by the Statute of â— Ed. 6. to the King or no was moved again and argued by Maynard that it was a free Chapel given to Edward the 6th by the Statute and said the first reason was taken from the words of the Statute A second reason from the preamble of the Statute A third from the reason of the Statute And a fourth from the meaning of the Statute First the intent of the Statute was to change Chapels of superstition to pious uses and doth intend reformation and not to take away the Chapels themselves and for this cause it being for so great a good the Statute shall be generally interpreted 11 Rep. f. 17. and the words All mannour in the Statute c. do more oppose a distinction than the word all can do for they are more emphatically used 2ly Though it be parochial and with cure of Souls yet it is not exempted out of the Statute and this Statute differs from the Statute of 37 H. 8. And in case of free Chapels all are vested in the King be they superstitious or not by the Statute 3ly Vesting It is not within the exceptions in the Statute and therefore is within the Statute and he took this difference Difference that Donors of Churches are where Churches are donative and Patrons of Churches are where they are presentative 2ly The proof of the contemporary exposition of the Statute is here to be considered 6 H. 7.14 Frée Chapels are of two forts 7 Ed. 3.18.17 Ed. 3.12 Cooks Lit. 44. Division Donative A Frée Chapel may be presentative and a Parish-Chucrh donative and they are so according to the foundation of them at the first A Parish-Church cannot be a Frée-Chapel Parish-Church but a Free-Chapel may be a Parish-Church 47 E. 3.5.9 E. 3. f. 10. â—0 Ed. 3. and a Church is not a Church if it have not Baptism and Burial belonging unto it Derivation Bract. lib. â— C. â— 17 E. 3.5 E. 3. A Chapel may be within a Church and a Church within a Chapel and Capella is derived by Rhenanus the Civilian from a Cap or Covering and so is to be accompted more superstitious than Churches are because their very name shews their derivation to be superstitious Twisden argued on the contrary that it was not within the Statute of â— Ed. 6. nor given thereby to the King and that it is not a Free-Chapel neither by the words nor within the intent of the Statute 2ly If it be a Frée-Chapel yet it is presentative and within the jurisdiction of the Ordinary and so not a Free-Chapel for it hath no immunity either in regard of Iurisdiction or otherwise and cited Cooks Littleton f. 94. The Chapels of the King are all Free-Chapels because they they are exempt from all Iurisdiction of the Ordinary Register 40 41. Thre are two sorts of Chapels to wit Frée-donatives 6 H. 7. f. 1â— 2ly Presentatives Nat. Br. 35. A Chapel may be presentative by the foundation of it or by matter ex post facto 22 H. 6. f. 26. Matter ex post facto Presentation A second reason to prove it to be presentative may be from the finding of the Iury who have found it so and the calling of it otherwayes is to no purpose to alter it Institution Cure of souls Dyer 81 Next
if it be a free Chapel it is presentative 11. rep 150. Cowel Tit. free Chapel Lynwood 149 150. Grendous Case 4. rep Institution gives cure of soules 13 E. 4. f. â— There may be a benefice with cure not presentative VVords and if it be with cure then it was not for a superstitious use and cannot then be within the intent of the Statute 1. rep 23. And for the word all it is not alwayes taken generally but restrictively 2 H. 6. To the objection made to the Verdict that it is not found by whom it is presentative I answer Special verdict This is a special verdict and it is the expression of the lay gens and shall be interpreted according to common acceptation The rule of Court was to argue it again the Next Term because it is a cause of great consequence Mich. 23 Car. Banc. Reg. BAron and Feme bring an Action of Trespass of Assault and Battery Arrest of Iudgement in assault and battery Ioyning in an Action and declare of an assaulting and beating of the Feme and have a verdict the Defendant moves in arrest of Iudgement and for cause shews that the Baron and Feme ought not to joyn in this Action though the Assault and Battery was done to the Feme particularly but that the Baron ought to have brought the Action alone because what ever damages should be recovered would go to the Baron only and cited 9 E. 4. fol. 51. The Iudgement was arrested till the Plaintiff should move Vandicoote Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of Debt against Vandicoote Arrest of Iudgement in Debt for rent against an Executor Debt in the detinet and debet the Executor of I. D. for rent due unto him by the Testator in his life time and hath a verdict The Defendant moves in arrest of Iudgement and for cause shews that the Plaintiff had declared that the Defendant detinet et debet which ought not to be but in the detinet only the Action being brought against him as an Executor for rent due in the Testators life and cited Smith and Nichols case 7 Car. But Wild of Councell with the Plaintiff said it was good enough in the detinet and debet though it might have been in the Detinet only Hales on the contrary part said it was not good for it could not be the Debt of the Executor though he be to be charged and so he cannot be said debere but it is the proper debt of the Testator and the Executor may be said detinere because he ought to pay it Executors VVaiver and doth not Roll Justice said that it had been adjudged good both wayes and said that Executors cannot waive a Term come to them and yet they cannot be charged in the debet and detinet And prima facie in the case at the bar the Action may be brought in the debet and detinet Yet put the cause in the paper and argue it again Tanner and Laurence Mich. 23 Car. Banc. Reg. TAnner brings an Action upon the Case against Lawrence Arrest of Iudgement in an indebitatus assumpfit upon an indebitatus Assumpsit to pay unto him two shillings a piece for every cloath he should buy for the Defendant and declares for so much money due unto him and hath a verdict the Defendant moves in arrest of Iudgement and shews for cause 1. That it is not averred by the Plaintiff Averment Notice that he gave any notice to the Defendant how many cloaths he had bought for him and so it is not certain what is due to him To this it was answered that the cloaths were bought for the Defendant himself and he may very well take notice of the number of them without any notice given him A second answer was that here is a request set forth for the payment of the mony and this implyes a notice But Roll Iustice to this answer replyed Implication that the request doth nor imply a notice and so is I wists Case and besides the notice ought not to be by implication but must be averred certainly Yet let it be moved again Mich. 23 Car. Banc. Reg. THe Plaintiff in an Action upon the Case upon an indebitatus declares that the Defendant in consideration of a certain sum of mony Arrest of Iudgement in an indebitatus assumpsit due to the Plaintiff by the Defendant for rent behind upon a lease for years did assume and promise to pay the same unto him at a certain day and had not done it and for this he brings his Action and hath a verdict the Defendant moved in arrest of Iudgement and for cause shews that there is no consideration declared to ground an Action of the Case upon for rent is a reall thing and an Action of Debt ought to have been brought for it Consideration and not this Action Roll Iustice said that here is only a consideration in law set forth which is not good to warrant this Action Debt But it may be there was some new consideration that sprung from the being of the rent behind that did ground this Action but no such thing doth appear in the Declaration Therefore the Plaintiff nil capiat per billam if cause be not shewn within 14 dayes why he should have his Iudgement Wood and Salter Mich. 23 Car. Banc. Reg. IN an arrest of Iudgement in an Action of Trespasse for carrying away 24 load of tymber Arrest of Iudgement in Trespasse The exception was that the Tymber is not said to be the Tymber ipsius querentis and so no cause of Action Vpon this Iudgement was arrested Burnet and Bird. Mich. 23 Car. Banc. Reg. BUrnet the Administrator of I. S. brings an Action upon the Case against Bird Arrest of Iudgement in an Action upon the Case upon a promise and declares against him upon an Assumpsit made by the Defendant to the intestate for the payment of a certain sum of mony for a mariage portion at 2 severall dayes of payment equally and that for not performing the same in the life time of the intestate he brings this Action The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement and shews for cause that the Plaintiff doth not well set forth the granting of the letters of Administration to him for he sayes they were granted unto him by the Arch-deacon of such a place and doth not say loci illius ordinarium nor cui administratio-pertinuit 2ly It is said that the mony was to be paid at 2 severall payments which amounts to two several promises viz. a promise to pay the first ten pound on such a day and a promise to pay the other sum at another day to come and doth not allege any particular request made by the intestate for the first ten pound But Bacon Iustice over-ruled both the exceptions and said to the first Notice Ordinary Letters of ad ministration-Peculiar
assignment is of the debt of this man due to the Bankrupt be it more or be it lesse and hath no reference to the accompt and reckoning between them so the Assignment is good though it agree not in the sum with what is justly due and the issue is upon the Assumpsit Issue Admittance and not upon the Assignment for the Assignment is admitted by the Defendant and so not material whether it be an Assignment of the true sum or not Iudgement was given for the Plaintiff Bruer and Sowthwell Mich. 23 Car. Banc. Reg. THe Plaintiff in this Case moved again for judgement Arrest of Iudgement in an Action upon the case upon an Assumpsit notwithstanding what had been formerly spoken to arrest it for though the word discomputando in the Declaration be insensible yet there is enough in the declaration to ground the Action and that is the breach of the Assumpsit assigned to deliver the Currants bought of the Defendant and the word discounting shall not hurt it Bacon Iustice was of the same opinion But Roll Iustice said Assumpsit Contract all the bargain is here set forth upon which the Assumpsit was made and if the bargain be ill the Assumpsit is not good Hales of Councell with the Plaintiff said if part of the bargain be insensible and part not yet a good Assumpsit may be grounded upon that part which is good But Roll said the bargain here is intire and if part of it be not good it is all naught yet he said if part of a bargain be good and part void yet an Action may be brought upon it The rule was That it should be argued again on both parts Seaman against Edwards Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 920. SEaman brings an Action against Edwards Demurrer to a plea pleaded by an Executor Plea Executor and declares against him as Executor of I. S. whereas the truth was that I. S. made 3 others Executors and not the Defendant The Defendant pleads that he is not the same person named in the Will To this plea the Plaintiff demurs and for cause shews that he may be an Executor de son tort demesne though he be not named in the Will and so may be chargeable and therefore he ought to have pleaded ne unques Administred come Executor and of this opinion was the Court and ordered the Defendant to shew cause why Iudgement should not be given against him Iudgement was given for the Plaintiff Dod against Eaton Mich. 23 Car. Banc. Reg. DOd brings an Action upon the Case against Eaton for speaking these words of him thou hast the French Pox Exception to a special verdict the Defendant pleads not guilty the Iury upon this Issue find a special verdict viz. That the Defendant had said thou hast had the French Pox whereupon the Defendants Councell said that the Verdict doth not maintain the words laid in the Declaration and that the words that are found in the verdict are not actionable and so the Plaintiff can have no Iudgement and cited 15 Jac. Nutcombes Case Verdict and the words found are not issuable and so the verdict is imperfect 40 Ass 41. Kelway 6. 18 Ed. 3. fol. 19. Pasc 33 Eliz Banc. Reg. Dame Ratcliffs Case Dyer Sr Iohn Burges Case prove that the verdict is too short Roll Iustice said if the verdict be imperfect there may be a new venire facias Venire de novo and so it is against the Plaintiff for he cannot have Iudgement Panell of Councell with the Plaintiff cited Osborn and Brooks Case that the verdict was for the Plaintiff But Roll Iustice said that the Iury cannot find a thing that is not within the Declaration to maintain the Declaration for they ought to hold themselves to the issue and that they have not here done and therefore the verdict is imperfect and there must be a new venire facias to try the issue again for Iudgement cannot be given upon this verdict for they do not find that he spake not the words in the Declaration which are the most material so that the matter is not found fully enough for us to proceed to Iudgement one way or other Adjourned Poole against Coply Mich. 23. Ca. Banc. Reg. POole brings an Action of Trespasse against Coply Arrest of Iudgement in Trespasse and hath a verdict against the Defendant It was moved in arrest of Iudgement that the Declaration is incertain for the Plaintiff declares that the Defendant cepit et asportavit decem coria anglice hides and the word Coria is uncertain for it may be coria equorum or coria ovium or of any other Cattel To this Roll Iustice said Anglice that it is well enough for the Anglice had made the woord certain and it is the usual maner to plead it thus The Court ordered the Plaintiff should have his Iudgement if better matter were not shewn to the contrary Hull against Gurnet Mich. 23 Car. Banc. Reg. HUll brings an Action of false imprisonment against Gurnet Demurrer upon a special plea in false imprisonment the Defendant pleads a speciall justification that he took and imprisoned the Plaintiff by virtue of a Commission granted out of the Court of the Admiralty to examine the taking away of certain goods which were wracked by the Sea Custom To this plea the Plaintiff demurred and shewed for cause That the Defendant hath not set forth the Custom of the Admirall Court that the first processe thereof is a Capias and so it appears not whether he have proceeded right or no. Admiralty 2ly It doth not appear that the matter for which the Commission was granted is Maritime and other matter they ought not to medle withall The Rule of Court was to shew cause why Iudgement should not be given against the Defendant upon this plea. Smith against Stone Mich. 23 Car. Banc. Reg. SMith brought an Action of Trespasse against Stone pedibus ambulando Special justification in trespasse pedibus ambulando Trespass the Defendant pleads this speciall plea in justification viz. That he was carryed upon the land of the Plaintiff by force and violence of others and was not there voluntarily which is the same trepasse for which the Plaintif brings his Action The Plaintiff demurs to this plea In this case Roll Iustice said that it is the Trespasse of the party that carryed the Defendant upon the land and not the Trespasse of the Defendant as he that drives my Cattel into another mans land is the Trespassor against him and not I who am owner of the Cattell Mathew against Herle Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1554. MAthew brought an Action of trespasse against Herle for breaking his Fence and entring into his Close c. Demurrer to a plea in trespass quare clausum fregit The Defendant pleads that I. S. was seised of this land wherein the Trespasse is
Iustice You might have demurred for this doubleness for one cannot assign an error in fact and another error in Law in a Writ of Error for this is double Hales It is true but we have lost that advantage Adjourned to be argued again the next Term. Robinson against Mich. 23 Car. Banc. Reg. RObinson brought an Action of Trover and Conversion against T. B. Arrest of Judgement in Trespass and hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good for the Plaintiff amongst other things declares that the Plaintiff had found and converted to his own use unum vestigium Anglice a Footstool whereas it signifies a Footstep or a print of the foot and not a Footstool 2ly The Plaintiff declares pro decem ponderibus Aeris meaning ten pound of Brass whereas it should be aeris with a Dipthong for Aeris is of Ayr and not Brass But this exception was over-ruled by the Court because in the writing of Court-hand in which hand Declarations are written No Dipthongs in Court-hand there are no Dipthongs used and so the word Aeris might as well signifie Brass as Ayre But for the other exception judgement was stayed till the Plaintiff should move Izack against Green Mich. 23 Car. Banc. Reg. Izack brings an Action upon the Case in London against Green For a Procedendo to try an action in London for calling her Whore Green removes the cause by a Habeas corpus into this Court and hath a Supersedeas to stay the Plaintiffs procéedings in London The Plaintiffs Councel moved for a Procedendo that he might procéed in London because that in London by a special Custom there an Action doth lye for calling a woman Whore though out of London it lyes not and cited Pascal and Barbars Case 21 Iac. to prove it Bacon Iustice The custom of London is to be certifyed that we may Iudge of the reasonablenesse of it and we are not to take notice of it upon a surmise and it seems that a procedendo should not here be granted Procedendo Notice because the matter with which she is charged by the words belong to the Conisance of the Civill law to try it and not to our Law as it is 2 H. 4. Roll Iustice One may in some Cases have an Action at the Common law where he may have remedy also in the Ecclesiasticall Court for the Common law is to be preferred and by a special custom as the Case here is an Action may be maintained where it lyes not at the Common law and so was it held 8 Car. and 13 Car. And if there should not be a procedendo granted in this Case the Plaintiff would be tyed up by the habeas corpus but if it be granted the matter may be tryed and upon that if the Iudgement be erroneous a writ of Error may be brought in the Hustings in London and so all the matter may come in question to be argued Action and he said that a Charter cannot give an Action which the Common law allows not But let the matter rest as it is till we can agree Mich. 23 Car. Banc. Reg. THe Plaintiff brought his Action upon the Case Arrest of Iudgement in an action upon the case for these words thou muttron-monger theef bring home my stolen hay The Defendant makes a special justification that the Plaintiff had stollen a sheep and upon this was an issue joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement that the Declaration was not good for it only chargeth the Defendant with speaking of the words and doth not say dixit de querente and though those words be in the replication yet that makes not the Declaration good Roll Iustice The Declaration is not good for the words may be spoken of any other body as well as of the Plaintiff Bacon Iustice agrees with Roll and said that the word dixit was not in the Declaration and so it appears not whether the Defendant spoke or writ or thought the words and which is more it is not said that the words were spoken in the presence of any body and then they cannot be scandalous Roll Iustice said one cannot rejoyn upon words which are not in the Declaration nor in the plea for if the Declaration and the plea be naught Replication the replication cannot make them good The rule of Court was nil capiat per billam except cause shewn Saturday following Kinpe against Iohnson Mich 23 Car. Banc. Reg. Pasc 23 Car. rot 154. A Writ of Error was brought to reverse a Iudgement given in Hull Error upon a Judgement in Hall Continuance for these Errors assigned 1. That one of the continuances was to a certain day of the mouth where it ought to be ad proximam curiam 2. The Declaration was pro se decem bestiis Anglice Cows or Whyes which is too general for the word bestia may signifie any beast whatsoever as well as a Cow The Iudgement was reversed except cause shewn to the contrary More against Clipsam Mich. 23 Car. Banc. Reg. MOre brings a Replevin against Clipsam Argument upon a Replevin and declares of a hundred oves Matrices et vervices distrained by Clipsam Clipsam demurs to the Replevin for the incertainty of it for it appears not how many of the hundred sheep distrayned and replevied were Matrices or ewes and how many were vervices or weathers Maynard moves for Iudgement in the Replevin for the Plaintiff and held that centum oves alone was good and certain and the addition Matrices and vervices shall not make an incertainty Incertainty and the writ of Replevin doth not shew the cattell distrained particularly but the help of the party and the view of the Sheriff must concurr to shew what Cattel are to be delivered by the writ 2ly Here is a good issue argumentative although it be not so formal 3ly Issue There is no more in the issue at the Bar than in the avowry for all the Term is but one day ther is no division of time in it it is dangerous to make fractions Term. a Statute acknowledged in the Term relates to the first day of the Term. Statute Relation Hales on the other side agreed that centum oves without saying any more had been certain enough but as they are here distinguished into Matrices vervices there is no certainty at all for the Cattel in kind are demanded and ought to be delivered as they are demanded so that if the demand be incertain there can be no certain delivery 2ly The issue is ill and is not helped by the verdict for 1. the title made is not answered 2. Traverse The traverse is only to the conclusion and so is but by way of inference and is not helped after a verdict for the plea is not answered Advantage for the words
Iudgement of Law it is presumed that the Covenant shall not be broken and that it shall not be respected in regard of the incertainty whether it shall be broken or no but the Law takes notice of the Will and it is of temporal conusans 2 Rich. 3. 11 H. 7. f. 12. and it takes notice of a legacie to try the right of it and to discharge it and the Executor here is compellable to pay the legacies and cannot refuse it neither by the Common law nor by the Spiritual law Covenant but it is objected that it is inconvenient that one shall avoid his own Covenant by his own devise To this I answer he might have done it in his life by giving away all his goods and 2ly There shall not be intended to be fraud in the Will and there are more inconveniences of our part in not paying the Legacies than on their part by paying them for by this means men shall have no power to dispose of their own Goods by Will by reason of Covenants in Leases and Déeds made by them and the Spiritual Court cannot compell a Legatée to put in security for his Legacy Security as is surmised Adjourned to the next Term to give Iudgement Mich. 23 Car. Banc. Reg. THe Court was moved to deliver their opinion in a Case formerly moved VVhether an Attornment good or not wherein the Question was whether an Attornment made by a Lessée for years the same day that the rent was due to be paid upon his Lease to him that had purchased the reversion of the Land let unto him and for which the Purchaser had brought his Action Attornment be a good Attornment Roll Iustice said that it is a good Attornment by the averment made and by the finding of the Iury and that Iudgement ought to be for the Plaintiff Bacon Iustice agrees and said the Attornment shall be intended to be before Sun set and not afterwards Therefore let the Plaintiff take his Iudgement Parmiter against Cressey Mich. 23 Car. Banc Reg. THe Defendants Councel upon a former rule of Court to shew cause Cause why Iudgement should not be given in an Action upon an Assumpsit Averment Notice Request offered for cause why the Plaintiff should not have Iudgement 1. Because the Plaintiff had not averred that he did make any election of the Wines that the Defendant was to deliver unto him 2ly He doth not aver that he gave the Defendant any notice of his election and there being a Condition precedent to be performed on the Plaintiffs part implyed the Defendant cannot perform the Bargain without notice of that performance 2ly Here is no good request expressed either in substance or circumstance for for the circumstance there is but two daies to do it in which it cannot be well intended it could be done 2ly It is said he did not deliver vinum praedictum which is an incertain implication of a Request for the word deliberare is not a proper term to express the Request and the verdict doth not help it Bacon Iustice There ought to be an election by the Plaintiff but the Defedant ought first to shew the Wines and it was of his part to have appointed the time when he would shew them Roll Iustice The Promise and Request was at Norwitch and it was sufficient for the Plaintiff to make the Request there but the Defendant ought to shew the Plaintiff the Wines Election without which the Plaintiff can make no election and the substance of the Declaration is to this intent Iudgement was given for the Plaintiff Mich. 23 Car. Banc. Reg. BY the rule of the Court VVâ—â— a Prohibition should not be granted this day cause was offered to be shewn why a Prohibition should not be granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half-blood when there was a Brother of the whole-blood who sued for them and was denyed The cause shewed was that it is in the power of the Ordinary to grant Administration either to the Brother of the whole-blood or to the Sister of the half-blood at his election because they are in equal degrée of kin to the Intestate And to this the Court agreed But Bacon Justice said that in the Case at the Bur Letters of Administration are granted to the Husband and his Wife and so to one viz. the Husband who is no kin at all to the Intestate but a Stranger and if he survive his Wife he shall have all the Goods and all the kindred will be defrauded which is not reasonable and therefore the Administration is not good And for this reason a Prohibition was granted Mich. 23 Car. Banc. Reg. IT was moved in arrest of Iudgement Arrest of Iudgement in Trover and Conversion that the Plaintiff had declared of the Trover Conversson of a cetrain number expressed in the Declaration of pieces panni lanii Anglice of red yellow and black Coath which is incertain and cannot be used as it is here to expresse Cloaths of divers colours for panni lanii signifies only wollen Cloaths But Bacon Iustice said all is but wollen Cloath though they be of divers colours and therefore it is good enough Hodsden the Secondary said sometimes the colours are used to be expressed and sometimes not Bacon It is better to express the Colours than not yet it is good enough without the expressing of them Therefore let the Plaintiff take his Iudgement Willison and Crow Mich. 23 Car. Banc. Reg. VVillison brought an Action upon the Case against Crow Arrest of Iudgment in an action for words for speaking these words of him You are a bankrupt Skrub and hath a verdict it was moved in arrest of Iudgement that the words are not actionable because they are Adjective words and so are not positive enough to ground an Action But the Court held they were actionable for the word Banckrupt in it self was not an Adjective and the joyning of it with Skrub made it not so but it should be understood as much as to say You are a Skrub and also a Banckrupt And judgement was given accordingly The King against Holland Hill 23 Car. Banc. Reg. THe Court delivered their opinions in the Case betwéen the King and Holland formerly argued And first Bacon Iustice said Iudgement given in the Case between the King and Holland that there can be no Iudgement for there is a mis-tryal in it for first there is no Venire facias and secondly there is a discontinuance because the Venire should be to retorn duodecem probos legales homines quorum quilibet habet 40 s. lands by the year at the least it is every of whom having 4 l. lands by the year which is contrary to the direction of the Statute To this Roll answered that he held the Venire to be good and so the tryal good for if the Iury hath every of them 4 l. a year in
Parish shall not be intended larger than a Vill if the contrary do not appear but here the contrary doth appear by the words of the Demand which are de rectoria de Imber Tymesbury infra parochia de Imber 3 4 Phillip Mary Dyer 142. and the different penning and expression of the Demand is to be observed Grant Abatement Variance for by that it appears there is a difference betwéen Imber and the Parish of Imber Grants Fitzh 87. by granting a Mannour with the appurtenances an Advowson will pass 19 E. 2. Tit. brief the Writ abated for variance betwéen the Writ and the Count. A 4th Error is to avoid the execution because of the Error in fait for the Hundred of Warmister doth extend to Sutton parva which is not named in the Writ and so the dammages are given for more than is demanded Dammages Intendment and it shall not be interpreted by Intendment and the Hundred is not demanded for the Vill relates to the Land and not to the Hundred 6 E. 3. 12. 8 Rep. 119. Bonhams Case and prays Iudgement for the Plaintiff in the Writ of Error Maynard of Councel with the Defendant desired time to argue and it was granted Postea Chambers against VVollaston Hill 23 Car. Banc. Reg. Mich. 22 Car. rot 21. CHambers brought an Action of Assault and Battery Demurrer upon the Custom of London pleaded and false imprisonment against Wollaston Wollaston pleads a special Plea of Iustification by vertue of a Custom in the City of London whereby he had authority to take and imprison him for disturbing an Election of Wardens of a Company and untill he would promise not to disturb such Elections afterwards To this Plea the Plaintiff demurs and takes these Exceptions 1. Custome The Custom pleaded is against Law for it appears not that there was any sute depending either by Bill or Endictment or otherwise and so the Custome is against Law Stat. 25 E. 3. C. 4. 25 E. 3. C. 3. and so was the Petition of Right 3 Car. And though the Customs of the City of London are confirmed by Statute-law yet illegal Customs are not confirmed 2ly Iudgement The Iudgement is against Law for by the Iudgement no remedy is given for the offence committed to the party against whom it is commited but only that the offendor shall be imprisoned untill he promise not to disturb Elections again 3ly The party committed is not within the Custom by the Defendants own shewing 4ly The Custome set forth is not prosecuted for the commitment is not for the Disturbance but because the party will not promise not to disturb again 5ly The detension of the party in prison is against Law Hales of Councel with the Defendant desired time to argue and the Court desired to have Books Holdigh against Chace Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 326. HOldigh brought an Action of Debt against Chace A special Verdict upon Non est sactum pleaded to a boad as an Executor upon an Obligation made to the Testator The Defendant pleaded non est factum and upon this Plea an Issue was joyned and a special Verdict found upon which Verdict the Case appeared to be this The Defendant Chace was bound in an obligation for the payment of a certain sum of mony unto A. B. and to I. S. joyntly I. S. dyes A. B. survives and makes Holdigh his Executor and dyes Holdigh brings an Action of Debt in his own name against Chace the Defendant and declares upon this obligation made to the Testator and to I. S. and doth not aver that the Testator did survive I. S. The Defendant pleads non est factum and the question was whether this be a good plea or no and to prove that it is no good plea Plea but that it was the deed of the Defendant the Councel for the Plaintiff cited these books 3. H. 6. 4. 35 H. 6. fol. 39. 46 E. 3. 7. 14 E. 4. fol. 4. 18 E. 2. 2. and put this case Two enfants joyntenants alien and one dies The surviver brings a dum fuit infra aetatem and counts of the Feofment of one of them and there the right was adjudged not to be severed by the Feoffement and so the writ good and in our case the matter of variance alleged goes to the writ and not the Action and it is now too late for the Defendant to take advantage of it and prayes Iudgement for the Plaintiff Roll Iustice said the issue is whether it be the Defendants deed or not and without doubt it is his deed and therefore let him shew cause why the Plaintiff should not have Iudgement Boone against Sheers Hill 23. Ba. Reg. Trin. 23 Car. rot 288. BOone brought an Action of Debt upon an obligation of 400 l. Demurrer to a Plea against Sheers and declares that the condition of the obligation was that the Defendant should make such a voyage with a Ship and pay certain monyes at his return and other conditions mentioned and for not performing the conditions he brings his Action The Defendant pleads in bar that the Ship was taken in the voyage per homines bellicosos Plea and demands Iudgement of the Action To this plea the Plaintiff demurred and shewed for cause that the Plea did not give answer to all the Declaration Demurrer Yard of Councell with the Defendant said the plea was good for the plea answers the whole condition of the Bond which was first to make the voyage with the Ship and then at his retorn to perform the other conditions and being hindred in the one he was not bound to perform the other Bacon Iustice Let us see a book to consider of Royston against Mees Hill 23 Car. Banc. Reg. ROyston makes a lease for years of certain lands to I. S. rendring rent Arrest of Iudgement in Debt the lessee makes his will and makes Mees the Defendant his Executor and dyes the Executor possesseth himself of the remainder of the term of the lands let and after the rent is behind Royston brings an Action of Debt against the Defendant and declares against him for the rent so behind in the debet and detinet and upon this an issue is joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement Declaration and shews for cause that the Declaration is not good because the Action being an Action of Debt brought against the Defendant as an Executor it ought to have been in the detinet and not in the debet and detinet But Wild of Councell with the Plaintif argued that the Declaration was good and the Action well brought in the debet and detinet and cited Brook title extinguishment 34. and the comment 526. and said it is an Action founded upon a lease by deed which was made by the Testator and cited 20 H. 6.10 H. 7. fol. 50. And that it is the constant form of charging
Executors in such cases 14 H. 4. fol. 29. Fitzh Tit. responder 7 E. 6. Dyer 81.10 rep 128. And said the verdict hath found it in the debet and detinet which shall be intended to be true 9 Ed. 4.41.17 Jac. Paul and Mordyes Case in the Common pleas and 7 Iac. Smith and Nicholas Case and prayes Iudgement for the Plaintiff Hales for the Defendant argued that the Declaration is not good 1. He said the Action is good in the detinet because the profits of the land let which are over and above the rent to be paid for it reserved upon the lease shall be only assets in the Executors hands Difference Contract 2. It cannot be good both wayes and the Term is in him as Executor not the rent and there is a difference between contracts Executory and contracts Executed but it may he said the rent to be paid may be more than the profits of the land is worth â— answer this shall not be presumed in law if it be not so shewed 43 Ass pl. 23.16 H 7. fol. â— The Action is brought for all the rent incurred therefore it shall not be presumed that the land is not worth the rent that is paid for it Verdict and as for the verdict it shall help nothing for a verdict shall not supply a necessary part of a Declaration omitted and if he owes then he detains and I conceive Hargraves Case to be good Law though denyed by the Councell on the other side and here the privity of the contract is not determined and so prayes Iudgement for the Defendant Roll Iustice It is for the advantage of the Executor to bring the Action in the detinet for then he sh ll be charged only for the goods of the Testator and not for his proper goods and it may be the land is lesse worth than the rent and that the partyes have consented the Action should be brought in this maner Bacon Iustice cited Pawls Case Mich. 17 Iac. But entred Pasc rot 346. That the Action may be brought in the debet and detinet and if the Plaintiff will bring his Action here in the detinet it is not for your disadvantage and he may at his election bring it either way Roll Iustice Here the verdict answers the point of the issue and therefore is good The Court ruled the Plaintif to take his Iudgement except better cause shewn to the contrary William against Tyrer Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 224. VVIlliam brought an Action of Trover and Conversion against Tyrer for certain goods of the Plaintiff the Plaintiff hath a verdict Arrest of Iudgement in Covenant The Defendant moved in arrest of Iudgement and took these exceptions to the Declaration 1. The Plaintiff declares pro tribus duodenis fili Anglice dosens of thread Declaration which is incertain for it may be three dosen pound of thread or skenes of thread or ounces of thread To this it was answered that it cannot be otherwise expressed and the words dosens of thread is used amongst Merchants and well known unto them what is meant by them 2ly He declares for so many pounds Muscat in stead of Nucum Muscat ram Anglice Nutmegs But this exception was mistaken for the record was otherwise and besides it was with an Anglice which makes it certain The Court ruled Iudgement to be entred except cause shewed for the Plaintif Rawson against Bargue Hill 23 Car. Banc. Reg. THe Case between Rawson and Bargue being an Action of Debt upon the Statute of 2 E. 6. for not setting forth of Tithes â— Arguments whether a free Chapel or no and the Iudges opinions wherein upon a speciall verdict the question was whether the Church were a free Chapel given to the King within the Statute of 1 Ed. 6. was again argued by Latch for the Plaintiff and by Brown for the Defendant Latches argument was to this effect 1. He said that the Law sayes it is presentative although it be not and 2ly It is sufficiently found to be a parochial Church yet it is not material whether it be found so or no. Next the words of the Statute do not extend to give donatives to the King 3ly It is not given to the Crown and although the Declatation and verdict be that it is a free Chapell yet it is not comprehended as a Chapel presentative Lit. 94. The word free makes a distinction of things and the party ought not to confound things Free Chapel and a free Chapel is alwayes interpreted for a Church donative and not presentative The right investiture of Churches was challenged from the foundation of them untill within this 400 years it was altered by the Common law Seldens History of Tithes fol. 392. and upon that alteration the name of a free Chapel came Reg. 41. It is said to be free from ecclesiasticall jurisdiction Fitz. tit Brief 6.0.3 Ed. 3. Fitz. Tit. Ayde du roy 33.14 H. 4.11.22 H. 6.25.22 H. 6.27 by Danbye 26 H. 6. Fitz. grants 12. Nat. brev 33 E. 34. f. 27 E. 3.84 Cowels interpretor Tit. free Chapel And in all Statutes the word free Chapel is meant of donatives Stat. 26 H. 8. cap. 3. Stat. 37 H. 8. cap. 4. Stat. 1 Ed. 6. cap. 14. Regist 307. But it is objected that free Chapels extend to presentatives Presentation Donative because they are with cure Lit. Com. 344. a donative may be parochial 7 E. 3. f. 4. To this I answer Churches had cure of souls when they were donatives To the 2d point by the meaning of the Statute it appears Tenure Frank-almoigne that only donatives were intended as the preamble of it doth declare And all Chapels are held in Frank almoigne as well as donatives and so all may be given to the King by the same reason Another objection is that the word Capella is superstitious and therefore being of a superstitious foundation it is given to the King and Cowels Interpretor is urged to prove the word to be so derived To this I answer that Sir Henry Spelman as learned an Author as Cowell in his glossary rejects Cowells derivation of the word Capella and saith that Capella is used promiscuously for any upper covering And though the name were superstitious yet that makes not the Chapel to be so for so the Church of St. Andrew or St. Dunstan should be superstitious and given to the King by the Statute There is a double preamble of the Statute 1. A recitall of another Statute Preamble and the taking away of other superstitious uses Preamble of the Statute 37 H. 8.22 Ed 4. cap. 7.8 rep 137. beasts of the Forest are not Cattel 3. rep The marques of Winchesters Case Com. 204. That some generals may be taken in a restrained sence 9 H. 6.36 Interpretation Words of a Statute ought not to be interpreted to destroy naturall Iustice The stile also of the Act doth not shew that donatives are only intended
This Statute of 1 Ed. 6. was made to supply something omitted in the Statute of 37 H. 8. and it is plain that it is within the words and we have no warrant to interpret it otherwise since it doth not appear that it is excepted also it is not found to be a Parish Church but that they claim it to be so and if it were it would not help 2ly It may be presentative and yet a free Chapel according to the foundation and endowment of it and a free Chapel may become a Church by presentation of the Patron but it appears not to be so to us The proviso of the Statute shews that it was not the intent of the Statute to exempt all free Chapels but those only which are named and no more And the intent of the Statute was that the King shall have it as a lay thing and he was not compelled to present and here the Patron hath taken the profits and there are no inhabitants within the Parish for the seignory compriseth all the parish and if the King presents by lapse where he ought to do it pleno jure the presentation is not good For these reasons The Iudgement was given for the Defendant if better matter be not shewn before the end of the Term. Fulham Hill 23 Car. Banc. Reg. FUlham had a Iudgement in this Court against 3 Defendants For Execiuion notwithstanding a writ of Error brought in parliament two of the Defendants bring a writ of Error in Parliament Fulham that had the judgment moves the Court he may have Execution upon his judgment notwithstanding the Writ of Error brought in Parliament because the Record is not well removed for the Writ of Error is not good for the Iudgement is against thrée and the Writ of Error mentions but two of them Roll Iustice I doubt you cannot have execution but the Writ of Error must be abated in Parliament Abatement Execution and then you may come here and move for execution for now it is not safe to grant it Move it in Parliament to have it abated or move here again at your own adventure The King and Holland Hill 23 Car. Banc. Reg. IN this Case between the King and Holland For an Amoveas manum to the Chancery Amoveas manum after divers arguments at the Bar and the opinion of the Court delivered The Court was moved for an Amoveas manum to the Chancery that the party may have his Land out of the Kings hand The Court answered The Iudgement is to be given here if there be cause for the King if not against him and you ought not to go to the Chancery And all that we can say is that the King shall not have Iudgement Iudgement Hill 23 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible Entry upon these Exceptions For quashing an Endictment 1. That it did not say that the forcible Entry was contra Coronam dignitatem but this the Court over-ruled A second exception was That it doth not shew that the party was felted at the time untill the Defendant entred by force upon him 3ly The Endictment concludes contra formam Statuti and it ought to be statutorum for the Statute of 8 H. 6. upon which this Endictment is framed relates to other Statutes To this the Court said if the Endictment be so it is ill 4ly The Endictment saith Endictment he entred peaceably and detained with force and such an Endictment hath relation to two Statutes To this it was answered that the Statute of 8 H. 6. is sufficient to found the Endictment without relation to other Statutes for this clause upon which this Endictment is framed is a new Law and hath no relation to precedent Statutes for it is here only for a forcible deteyner Roll Justice doubted of this for it is said that the Statute of 8 H. 6. shall be added to the new Statute Bacon Iustice differed in opinion and said the Statute of 8 H. 6. was not made to piece up the other Statute but is a new Law as to this clause The Court will advise further Chambers against VVollaston Hill 23 Car. Banc. Reg. THis Case was again moved and argued by Ward of Councel with the Plaintiff Argument upon a special Plea The Action was an Action of Assault and Battery and false imprisonment The Defendant pleased a special Iustification by vertue of the Custom of the City To which Plea the Plaintiff demurred six points were spoken to by the Plaintiffs Councel in his Argument 1. Custome He said the procéedings against Chambers were neither agreeable to the Common law nor to Magna Charta and therefore illegal and not warrantable notwithstanding the Custome pleaded to back them 2ly The Custome it self is not well pursued Bracton 55.5 Rep. 64. The King cannot grant power to a Court to commit against the Common-law or Statute-law Magna Charta 54.42 Ass Pl. 5. and though one submit himself to be committed Submission for a thing for which he is not committable by Law this submission is void 3ly The Custom pleaded is against Magna Charra and divers other Statutes Stat. 9 H. 6. cap. 5. 8 E. 3. Cooks Magn. Chart. f. 16. Bracton 334 335.43 E. 3. f. 32. Pleadings and it appears not the pleadings were in Latin as they ought to be 36 E. 3. neither was the Confession legal nor entred upon Record 3ly Iudgement The Iudgement varies from all other Iudgements in Law for the Commitment was that he should stand committed untill he would promise that he will disturb no more And â—ly untill the Court should take further order and this is against Law 8 Rep. f. 59.2 Instit 52. 5ly The Statute of Rich. 3d. confirms not the Custom for if it was before Magna Charta it is taken away by that Statute for it is not excepted in it Magna Charta cap. 19. 29. Miror of Iustice cap. 5. Long Quint. 40 41. 6ly The Custom is not well pursued in the Return for the Oath extends to be obedient to the Bayliff Retorn c. for the time being but the Return is not so but it said that he be obedient to good Laws and this is not in the Oath And the Retorn is against their Custom and Iudgement for the Commitment and so he praid Iudgement for the Plaintiff Roll Iustice said That the Iudgement and the Retorn are contrary tor the Iudgement was that he shall be committed because he would not promise not to disturb and the Retorn is that he promise that he will not disturb Cause was to be shewn why the Plaintiff should not have Iudgement The King and Apsley Hill 23 Car. Banc. Rep. APsley removed certain orders made against him by the Commissioners of Sewers for Westminster by a Certiorari into this Court. To quash orders of Commissioners of Sewers And upon the Retorn these exceptions were taken 1. That it doth
might have pleaded this in the Admiral Court Hill of Councel for the Prohibition said it is not material what the parties have done in the Common-pleas for this Court is not bound by it Roll Iustice If the matter of your surmise here be tryed already in the Common-pleas why should you move here upon the same surmise Surmise Arbitrary Conclusion But it is not arbitrary to grant a Prohibition or not to grant it if there be cause to grant it and the Tryal in the Common-pleas is no conclusion to us and if it be mischievous as is objected Prohibition to grant a Prohibition after a Consultation granted the Parliament may make a Law to prevent that mischief for as the Law now is it may be done Yet we will advise Gaudy aginst Ingham Hill 23 Car. Banc. Reg. IVdgement was given against an Administrator in an Action of Debt brought against him Error upon a Iudgement against an administrator Iudgement in the Common pleas upon fully administred pleaded and a writ of Error was here brought to reverse the Iudgement The Error assigned was that Iudgement was given for the whole Debt whereas the verdict found that the Defendant had assets only to discharge a part of it To this the Court said if it be found he have any assets Iudgement must be given against him for the whole debt upon his false plea but if he have no assets it is otherwise Allen against Reeve Hill 23 Car. Banc. Reg. Mich. 23 Car. rot 88. ALlen brings an Action of Covenant against Reeve Arrest of Iudgement in an Action of Covenant and his wife upon a lease expired made of certain houses by deed unto the wife dum sola suit wherein was a Covenant to keep the houses in repair during the term for breach of this Covenant is the Action brought and declares as to one of the houses that it was burnt by negligence The Defendants plead a special plea to this effect That the house which was burnt was not burnt by negligence In arrest of Iudgement nor with Common fire as the Plaintiff hath declared and as to the rest they plead the general issue that they were in good repair at the expiration of the term the Plaintiff hath a verdict Nicholes of Councel with the Plaintiff said it conteins a negative preignans for there are two matters offred in issue one that the house was not burned by common fire Negative preignans Demurrer 2ly That it was not burned by the negligence of the party Roll Iustice If it be a negative preignans as you say it is you ought to have demurred unto it as to a double plea. But let us see the book and stay in the mean time Hobson against Heywood Hill 23 Car. Banc. Reg. Trin. rot 791. HObson brings a writ of Error in this Court to reverse a Iuhgement given against him at Bristow in an Action of Debt for rent Error to reverse a Judgement in Bristow in an action of Debt Error and assigns for errors that the sum demanded to be due for rent was in figures and not in words as it ought to be 2ly It is said that the Iury Assideint damna for Assident damna The Court held they were both material exceptions and reversed the Iudgement except cause should be shewn to the contrary Saturday following Chambers against Floyd Hill 23 Car. Banc. Reg. VPon a rule on the Crown side to shew cause why an Attatchment should not issue out against two Iustices of peace for not allowing a certiorari directed to them out of this Court to remove an endictment of forceible entry taken at a private Sessions before them Cause against issuing of an attatchment The Councel for the Iustices urged that they had not contemned the Processe of this Court as is surmised for the certiorari ought to have been delivered in open Sessions of the peace and there allowed Allowance but this was delivered at a privat Sessions and so they were not to allow it 2ly The party who procures the certiorari ought according to the Statute to put in security Certiorari at the delivery thereof to prosecute or else it is not to be allowed but that was not done here and therefore they were not bound to allow it And the certiorari is to remove an Endictment of forcible entry but the retorn is that it was a peaceable entry and a forcible deteyner Retorn so that there being no such Endictment before them as the certiorari mentions they could not make a retorn according to the writ and therefore it is no contempt in the Iustices not to make a return The Court answered Contempt that it is the usual course of the Court to make certioraries in this form and therefore this is no excuse The Councel against the Iustices urged that this case is within the Statute though it were at a privat Sessions of the peace and therefore the Iustices are in contempt Roll Iustice said I conceive that this is casus omissus not provided for by the Statute and if so then are they not in contempt Casus omissus and if some Iustices take an Endictment of forcible entry other Iustices cannot give restitution upon this Endictment Bacon Iustice Restitution The Statute is a remedial Law and made for the ease of the subject and ought not to be construed strictly And said Construction that a privat Sessions is a Sessions but security ought to be put in at the quarter Sessions for it shall be intended that all the Iustices of the County are there Roll Iustice said Security that a privat Sessions ought to take security and the Endictment ought to be retorned there but the certiorari is not good for it mentions not the title of the Act yet the generall practice of the Court seems to warrant it as it is The Court ordered the party to have restitution and the contempt to be spared by consent of partyes if cause not shewn to the contrary before the end of the Term. Hill 23 Car. Banc. Reg. THe Court was moved upon an Assidavit for a prohibition to the Court at Doncaster For a prohibition to the court at Doncaster Prohibition Attatchment and for an attatchment against the Maior for refusing to allow of a forein plea tendred by the Defendant in an Action of Debt brought against him for rent for lands that lye out of the jurisdiction of the Court and for proceeding against him notwithstanding the tender of the plea. The prohibition and attatchment were granted if cause not shewn to the contrary before the end of the Term. David against Lyster Hill 23 Car. Banc. Reg. THe Court was moved by the Plaintiff that the Defendant might be ordered to plead an issuable plea For the Defendant to plead an issuable plea. which he had not done for the Action is an Action of ejectione firmae in which the Plaintiff hath
abated To the 3d. exception That the Demand is more large than the Writ because a Parish may be larger than a vill and the Demand is the Parish of Imber I answer That the Vill and Parish shall be intended to be of the same extent if the contrary do not appear Cooks lit f. 125. 2ly Although the Parish may be larger than the Vill yet it may lye in the Vill and the contrary doth not here appear and the Case is so that it is impossible that the Parish should extend into another Vill 1. The office of the Writ is to restrain the Demand and the Writ ascertains the Demand 19 E. 3. Fitz. Dower 95. 9 E. 4. f. 16. by Chock 2ly There is a restriction within the body of the Demand for the Demand refers to the Writ and is bounded by it 42 Eliz. Wook and Godins Case a small implication will make a Vill and Parish to be all one Implication and so it is here 42 43 Eliz. Com. Banc. Hob. 12. Case Brook and Spencer Trin. 16 Iac. in this Court rot 504. Marks and Marks And as to the Exception taken to the execution Execution that dammages are given for more than is demanded 1. Here is no confession as it is supposed on the other side that the Hundred in demand doth lye in another Vill. 2ly It is impossible for dammages to be given for more of the Hundred than lyes within the Vills mentioned in the Writ and so are there no dammages given for that part of the Hundred which lyes in Sutton parva as is objected on the other side for no more shall be recovered than is contained in the Writ 9 E. 4. ◠16 17. The Question there was whether it were a Plea to the Writ 17 E. 3. f. 44. The Court desired to hear another Argument Castle against Dinely Pasc 24 Car. Banc. Reg. Trin. 23 Car. rot 1078. CAstle brings a Writ of Error to reverse a Iudgement given against him in the Court at Owse-bridge in York Error to reverse a Iudgment in an action upon the Case in an Action upon the Case upon an Assumpsit The Error assigned was that the day of the Month in which the promise was made is in Figures To this the Councel on the other side said that heretofore it had béen held to be Error Error but now since the Statute of Ieofailes after a verdict is no Error But I. Turner of Councel with the Plaintiff in the Writ of Error said That it is a material exception now for the Assumpsit is the ground of the Action and therefore the day must néeds be material Another exception was that the Venire was Venire facias duodecem c. de Riliva tua and the Venu was in the City of York But to this exception it was answered that the Record is de Civitate Eborum in Baliva tua and so it is well enough and of this opinion was the Court. But the Court held the first Exception to be good Whereupon the Councel for the Defendant in the Writ of Error prayed the Iudgement might be reversed for his Clyents dispatch and so it was The King against Andrews Pasc 24 Car. Banc. Reg. ANdrews was endicted for Murther and out-lawed upon the Endictment Arraignment upon an Outlawry for Murder and taken upon the Out lawry and brought to the Bar and demanded what he could say why Iudgement should not be given against him The Prisoner said he had brought his Writ of Error to reverse the Outlawry and prayed it might be allowed which was granted and the Writ read by Broughton the Secondary on the Crown-side The Prisoner desired he might have Walker Hales and Pepes assigned him for his Councel which the Court granted The Councel prayed they might have a Copy of the Record Roll Iustice said that the Prisoner himself ought to shew matter in Law for Error which the Councel doubted Error But the Court over-ruled it yet agreed that the Record should be read unto them which was done Vpon the reading Walker took these exceptions 1. The Process is not well awarded for the Capias is not praedict Andrews and so it appears not who was out-lawed whether the Prisoner or another of the same name 2ly It is not said that the Process is awarded by the Court nor at what Sessions it was awarded Roll Iustice It is necessary for it is recorded there 3ly It appears not what party is dead whether he that was struck or another 4ly It doth not appear in what part of the body the Wound was given nor with what weapon The Court said that they will hear the Kings Councel before they would conclude any thing The Councel moved that the Prisoner might be bayled because it was fourteen years ago since he was endicted The Court answered till you are assigned of Councel upon Record we cannot bayl him at your prayer Bayl. Then the Councel desired a Copy of the Record ad quod non suit responsum but the Court said to the Councel take more time to consider of other Exceptions for if these shall be over-ruled your Clyent is gone viz. must be hanged At another day he was bayled by four persons and bound to prosecute his Writ of Error with effect Pasc 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation for 3000 l. Arrest of Iudgement in Debt upon an obligation the Defendant pleads that he had paid the mony on such a day whereas the truth of the Case was that there was two daies of payment limited in the Obligation and the Defendant had paid part of the monies upon one of the daies of payment and the rest upon the other day and not all at one day The Plaintiff replies that the Defendant did not pay the mony upon the day alleged by the Defendant in his Plea and upon this an Issue is joyned and a verdict found for the Plaintiff Verdict the Defendant moves in arrest of Iudgement and shews for cause That the Verdict is imperfect because it doth not find that the Defendant had two daies of payment but concludes that he did not pay the mony upon one of the daies Roll Iustice If you have two daies of payment to plead and you rely upon one day in your pleading Champerty and issue is joyned upon that and it be found against you you must be barred by it Hales urged That here was a champertous agreement for there was no consideration for the assignment of this Obligation and Indenture to the Plaintiff upon which the Action is brought by him The Iudgement was stayed till the other part should move More against Stone Pasc 24 Car. Banc. Reg. AN Action of Trespass of Assault and Battery was brought by the Plaintiff for assaulting and beating and taking his Servant for two Months Arrest of Iudgement in Trespass by Assault and Battery and taking away his Servant Retainer per quod
servitium amisit The Defendant pleads not guilty and thereupon is an Issue joyned and a verdict for the Plaintiff The Defendant moves in an arrest of Iudgement and for cause shews that the Plaintiff hath not set forth how the party was his Servant whether as an Apprentise or by retainer as he ought to have done But the Court said that the Record imiplies that he was his Servant at the time when the Trespass was done and that is enough and this is the usual form of declaring in this Action in the Common-pleas and in this Court also and so many of the Councel at the Bar affirmed and therefore let the Plaintiff take his Iudgement The King against Holland Pasc 24 Car Banc. Reg. HAles offered to the Court these reasons why Iudgement should not be given here in this Case betwéen the King and Holland formerly spoken to To stay Iudgment upon a Memorandum of a Record out of the Chancery Iudgement 1. That the Record is not here in this Court but only an extract of the Record out of the Record which is in Chancery and therefore judgement cannot be given here for a judgement must be given upon the Record it self 2ly It would be inconvenient if it should be otherwise for the Chancery is Iudge of the Inquisition and so there may be judgement one way in Chancery and another way here if the Record be not removed hither And there is difference where a transcript of a Record is removed out of a Court which cannot proceed upon the Record it self and where it is a transcript of a Record Transcript upon which Record the Court may proceed as it is in our Case 39 H. 6. 6. 14 E. 4. 1. 7. 3ly It appears not to this Court how the Commission and Inquisition are executed whether well or not and therefore it cannot judge of it Maynard on the other side prayes that judgement may be given here upon the memorandum of the Record sent hither out of the Chancery for these reasons 1. Every Court ought to give judgement on the one side or other therefore if the King may have judgement here the party may also have judgement 2ly The Record is here in this Court virtually by sending of the Memorandum of it hither and that is enough to give Iudgement upon 3ly The Chancery and this Court as to the giving of judgement here are as it were one Court 24 E. 3. f. 77. 4ly There is a ground for judgement to be given here and it cannot be given elsewhere for an Award in Chancery is no Iudgement Award and so there cannot be two several Iudgements one in Chancery and another here as Hales supposeth and in Lathams case the Record was removed as it is here and Iudgement given upon it in this Court. 5ly The Chancery is not to be Iudge for the Tranverse was there and the cause removed hither and we cannot go back thither again for if we should do so we should have Iudgement in no Court If it had been upon a Demurrer in Chancery then there might have been a Iudgement there but not now the Cause is removed by Traverse and a Patent shall not be corrected by the Enrolment but the Enrollment by the Patent under Seal Hales on the other side said That it is the Record of the plea that is transmitted out of the Chancery hither but not the Record of the Inquisition or Commission upon which it is found and how then can there be any Iudgement Roll Iustice said That the Amoveas manum is but a consequence of the judgement Amoveas manum and not the Iudgement it self and we may give Iudgement without the Inquisition against the King And the Record is transmitted hither to determine whether the King or the party hath right and the Chancery cannot intermeddle for by this means the Courts will clash which would be inconvenient Bacon Iustice spoke to the same effect Roll Iustice added this If an Office be found to entitle the King in the Chancery and it be transmitted hither and it appears to this Court that the office is not good shall not we give Iudgement against the King certainly we shall But the Court would advise and desired to hear the Kings Councel what they could say for the King Pasc 24 Car. Banc. Reg. AN Action of Trespass was brought for taking away divers parcels of Houshold stuff and upon non Culp pleaded the Plaintiff had a verdict Arrest of Iudgement in Trespass for taking away Goods The Defendant moved in arrest of Iudgement and shewed for cause that the Declaration was not good because divers words in it were insensible as 1. The Plaintiff declares for taking away unum Lenat Anglice a Mat whereas Lenat is no word in any Language to signifie any thing and therefore the Anglice cannot help it To this the Court answered That it is all one as if it were left out of the Declaration because it signifies nothing in it Dammages and so there is no dammages given for that thing which it should signifie 2ly He declares for taking away tria suspendia Anglice Pot-hooks or Hakes But the Court held this good enough 3ly He declares for taking away unum Adustum ferreum which are two Adjectives and signifie nothing To this the Court said if they signifie nothing then no dammages are given for it and therefore let the Plaintiff take his Iudgement Pasc 24 Car. Banc. Reg. VPon reading of the retorn of Collonel Tichborne Leiutenant of the Tower of London upon an habeas corpus directed to him For an alias habeas corpus with pain on the behalf of John Lilborn committed by order of both houses of Parliament for his contempt to them Cook of Councell with the Prisoner moved for an Alias habeas corpus with a pain because the Lieutenant had only retorned the Writ Alia but not brought the body of the Prisoner Bacon Iustice If there be sufficient matter expressed in the retorn to detein the Prisoner to what purpose should we grant an Alias Retorn therefore if the retorn be insufficient move your matter against it But Roll Iustice said the Lieutenant ought to make his retorn either against the jurisdiction of this Court or else he must bring the body of the Prisoner hither and it is in our power to set a fine upon him Fine for making an insufficient retorn Therefore the Court ordered that he should amend his retorn or else they would grant an Alias with a pain Hocker against Lamb. 24 Car. Banc. Reg. Trin. 23 ar rot 1592. HOcker brought a Writ of Error in this Court against Lamb to reverse a Iudgement given against him Error to reverse a Iudgment for error in the venire Licu câ—nus Hundred VVard in the Court at Colchester in Essex and assigns for Error 1. That the venire is awarded larger than the Declaration To this Roll Iustice said the Ward within Colchester
mentioned in the Declaration is but a lieu conus but in London the Ward is in the nature of a Hundred and so differs from this Case a second exception was that the time of the Assumpsit upon which the Action in which the Iudgement was given was founded is expressed in figures viz. the time for the delivery of the goods promised to be delivered as also the time of the request for the delivery of them as also the costs and damages adjudged Vpon these exceptions the Court ordered the Iudgement to be reversed except very good cause should be shewen to the contrary Pasc 24 Car. Banc. Reg THe Court was moved to discharge two prisoners committed for suspition of murther 〈…〉 at the 〈◊〉 by habeas corpu and brought to the bar by a habeas corpus returned for the insufficienty of the retorn and upon two certificates offred to the Court That the partyes who did the murther for which these prisoners were committed were Executed for the same and had confessed that they did it Discharge But Roll Iustice answered if the retorn be touching Felony though it be insufficient we cannot discharge the partyes The Court thereupon was moved Bail that they might be bailed which was granted and they were bailed by four in 200 l. a piece that the prisoners shall appear at the next assises at Berry in Suffolk Pay against Paxted Pasc 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour Court And the Error assigned was in a continuance Error to reverse a judgement for a d f. continuance Discontinuance which was ad proximam curiam scil 16. die whereas the Court was not held that day but 26. die Roll Iustice said peradventure the scilicet may be void Yet the Iudgement was reversed antea Keniston against Jones Pasc 24 Car. Banc. Reg. Mich. 23 Car. rot 587. AN Action of Debt was brought upon an obligation with condition to stand to an award the Defendant pleads nullum arbitrium Argument upon a special verdict in debt upon on obligation to stand to an award Recital Conclusion the Plaintiff sets forth the award and assigns a breach and upon that an issue is joyned and a special verdict is found and upon the special verdict 2 questions was whether a misrecital of the date of one of the obligations of submission by the Arbitrators in their award shall avoid the award Philips of Councell with the Plaintiff argued that it should not because that now the parties are concluded by the plea and the verdict found upon it 2ly Whether the Arbitrators have exceeded the submission he held they had not for the first point he said 1. That the submission was the submission of the parties and the mistaking of the Arbitrators of the time when it was made is not material nor shall hurt it for the bond of submission is not in the custody of the Arbitrators and so they might easily mistake the date because they had it not to vlew Plow Com. 79. Crokers case 2ly Date The date of the obligation is not an essential part of the obligation for an obligation may be good though it have no date therfore the mistaking of the date is not much material 3ly There is sufficient certainty of the bond expressed in the award though the date be mistaken a void additional description of it shall not avoid a good description of it set forth in the award Doughtyes case Cook 3. rep Dyer 292. 4ly The misrecital is not in words affirmative but meerly in words relative 5ly The clause of misrecital refers to the deed recited by the prout which is certain enough and the law rejects the miscrecital as a thing impertinent 6. rep 36. Dyer 116. For the second poynt although the submission should be void yet by the issue joyned the submission is confessed and it is now contrary to the submission to plead nul award Dyer 32. 28 29 H. 8. 2. rep 4. and the parties in our case do differ only whether there be an award or not and not whether there be a submission or no. And as touching the award it self I hold that the submission is not exceeded Award for all matters in diffrence between the parties are submitted but not the bonds of the submission 2ly It stall not be taken to be alleged expresly of the matters only submitted and not of others if the contrary do not appear either by the Plaintiffs allegation or doubt of the Iury. 3ly All the award is performed before the discharge of the obligations of submission 4ly The award is at least good in part and it being not performed in this part that is good the obligation is forfeited Cook 10. rep Kel 43. 45 Hob. pag. 267. Nâ—bys case and so prayes Iudgement for the Plaintiff Latch for the Desendant 1. The verdict is not contrary to the issue nor admission in pleading nor out of the issue but within it for the issue is whether the award be good modo et forma and the submission is an essential part of the Award and ought to be alleged in the Award otherwise the Award is not good and it is here alleaged in the issue also Dyer 216. 9 H. 7. 3 and the negative here implies nothing Another question is whether the Iury have found the Award set forth in the replication or whether they have found any Award at all ad if any Award be found it is such an Award which is not in issue in the replication and so the verdict is for the Defendant And as to the Award it self I hold it void for the parties have not submitted to the Award that is made for there is no submission to the determination of matters arising between the time of the sealing of one Bond and of the other Bond and so the Arbitrators have exceeded the submission for they have awarded to make releases at the sealing of the last Bond which compriseth all the time between the sealing of one Bond and of the other Next part of the Award is not good by exceeding the submission and this makes all the Award naught for all the parts of this Award do so depend one upon another that if one be naught all is naught And the last part of the Award is naught and so the Award is made but on the one part which cannot be good for if the release be not made all Actions between the parties cannot cease according to the Award and so the Award is not final And there is no verdict here for the Plaintiff although the verdict should not be for the Defendant for it appears not whether the 15th of April be before or after Easter and so prayes Iudgement for the Defendant Roll Iustice said if there appears a material variance between the Award â—et forth Notice and the Award pleaded it is ill And it is a question whether we be bound to take
unto the Defendant the Arbitrators had awarded that the Plaintiff should pay unto the Defendant six pound in full satisfaction thereof which is lesse than they acknowledge to be due so that it cannot be a satisfaction 9 H. 7. f. 11. 46 E. 3. f. 7. 2ly The Award is that one of the parties shall deliver Dimissionem praedictam whereas it ought to be Indenturam dimissionis for the dimission is but the consent of the party to the Indenture and not the Indenture it self Cooks Instit 43 6. 3ly They award to deliver dimissionem praedictam in the House of a Stranger which ought not to be for the party must commit a trespass to do it if he cannot get leave of the Stranger which he is not bound to do 9 H. 7. 16. 18 Ed. 3. 23 19 Ed. 4. 41. The words are that it shall be delivered at the House and in and at are all one in grammatical construction Mich. 23 Car. Coleman and Painters Case 4ly They award one of the parties shall release thrée years rent to the other and there was but two years rent due so that it is impossible to be done 5ly They have made their Award upon a thing not submitted viz. that there should be a release of all Actions which might concern the rent Averment and lastly the party ought to shew he hath performed the Award on his part which he hath not not done 8 H. 6. 18. Brook Arbitrement Twisden of Councel on the other side to the first Exception said it is not to the purpose for Arbitrators may award a lesse sum than is due in satisfaction of it and though it be ill yet the Award is good as to so much whereof a good breach is assigned To the second he answered that the words dimissionem praedictam refer to the Indenture pleaded and so that is well enough To the third he said that the Award is that the Indenture shall be delivered at the House and it is lawfull for him to go to the House though not into the House of a Stranger The the 4th he answered that the words are to be understood that the party shall not pay the rent and not that he shall release it To the fift he said that the words alleged are no part of the Arbitrement And if the Obligation be released it is not material for the Arbitrement is performed and the words Premises restrain the Arbitrement to the Submission And to the sixth it is not necessary to shew how the Arbitrement is performed for if it be not the other party hath his remedy Roll Iustice said that in 12 Iac. it was adjudged that if an Arbitrement was for a thing to be done in or at the House of a Stranger it was well enough for it may be intended to be done at the House without doing a Trespass though not in the House except the contrary be shewed by the party In Lynyn and VVilliamson Hoofs Case and as to the words dimissionem praedictam that is also well enough for it shall be intended the Indenture of demise But let us have Books and move it again It was moved again and another exception taken that the promise was released Upon which the Court would advise Smith against Hobson Trin. 23 Car. rot 1078. SMith an Inn Keeper in VVarwick brought an Action upon the Case against Hobson Arrest of Iudgement in an action upon the Case for speaking these words Collonel Egerton had the French pox and hath set it in the House meaning the Plaintiffs House and William Smith and his wife meaning the Plaintiff and his Wife have it and all you The Plaintiff hath a verdict The Defendant moves in arrest of Iudgement and for cause shews that the words are not actionable for the words are that Collonel Egerton hath set the French pox in the House which is impossible for the House could not have the pox and the words William Smith and his Wife have it shall not be meant that they have the pox but the House for that is the next Antecedent to the words to which they shall refer And also where words are spoken doubtfully whether they be spoken true or false they shall be taken to be true and it may be here the words are true and then no Action lies for speaking of them also the Baron and Feme ought to joyn in the Action if they be actionable Ioyn in Action for they are spoken to both their prejudice and the Action is not to be brought by the Husband alone as here it is Also in this Case the words being spoken of a House the Writ of Enquiry of Dammages must be what Dammages is come to the House which cannot be Roll Iustice If an Action be brought for words and part of them be actionable and part are not yet an Action lyes for them which are actionable And in this Case the Husband alone may bring the Action for dammages to himself and he may afterwards bring another Action for the dammages done to his Wife And he held the words here actionable and bid the Plaintiff take his Iudgement if cause were not shewn to the contrary Saturday following Iudgement was afterwards given accordingly Marshall against Porter Hill 23 Car. rot 769. MArshall brings an Action of Trespass Quare vi armis for taking away his Cattel Demurrer to a special plea in Trespass Quare vi armis The Defendant pleads non Cul. as to the vi armis and as to the taking of the Cattel he pleads that he bought them in a Market-overt The Plaintiff demurs to this Plea and the Defendant joyns in the Demurrer The Exception taken to the Plea was that the Defendant doth not shew what day the Market was kept nor whether it were out of Lent according to the Patent for the keeping of the Market Roll Iustice said this ought to have been averred in the Plea and therefore the Plea is not good Averment Therefore let the Plaintiff have his Iudgement if cause be not shewn to the contrary Pitcher against Symons Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 189. SYmons brought an Action upon the Case upon an Assumpsit in the Compleas against Pitcher and hath a verdict and a Iudgement Error to reverse a Iudgement in an action upon an Assumpsit Issue Amendment The Defendant brought a Writ of Error here to reverse the Iudgement The Error assigned was that there was no issue joyned between the parties to the sute for it is praedictus Iosephus similiter whereas it should be praedictus Robertus Roll Iustice cited 9 Eliz. Dyer and said if it be praedictus Richardus where it ought to be Robertus it cannot be amended because the Issue is altered for it is joyned between other parties and so is it in this Case But move it again Friday next Deacon against Forest Trin. 24 Car. Banc. Reg. DEacon brings an Action in this Court against Forest VVhether
a Plea was peremptory or that there might be a Respondes ouster Peremptory Plea The Defendant appears in Michaelmas Term and imparâ—s to Hillary Term and before the day of Continuance pleads a Plea in abatement to which the Plaintiff demurs Yard of Councel with the Plaintiff said he conceived the Plea was peremptory to the Defendant because it comes after an imparlance a Continuance and so comes in lieu of a Peremptory for the Law admits but one delay and therefore the Defendant should have pleaded in Chief and not having done it his Plea shall be as if it were a Plea in Chief over-ruled and cited Long Quit. E. 4. f. 139. Roll Iustice You cite not the Book as it is here is but a Plea in Abatement and the Continuance makes it not peremptory 2 Ed. 4. f. 10. A second Exception was that the Plaintiff hath not demurred upon the Plea but pleaded to issue and here is a departure from the general issue Departure 34 H. 6. f. 8 9. Roll Iustice The Book is against you for upon a Demurrer a Plea dilatory is not peremptory but upon an issue joyned it is Yard The delay of the Demurrer makes it peremptory 22 H. 6. f. 55. Roll Iustice The Book cited is against you and in 50 E. 3. f. 20. Difference There is a difference taken betwéen the delay of the Court and the delay of the party and here is no delay in the party for he might have been forced by the rules of the Court to hasten the proceedings and the Book of 34 H. 6. is against you The Plea in Abatement ought not to have been received after imparlance but if it be received a Demurrer upon it it cannot be helped and if one plead a Plea after imparlance Plea which ought not to be pleaded the Plaintiff may pray the Court to over-rule it but if he demur upon it he admits that the Plea may be and one may plead a Plea in Bar by way of abatement e contra Therefore let the Defendant plead in Chief if cause be not shewed on Friday to the contrary Burges against Dynham Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1191. BUrges brought an Action of Trespass against Dynham for taking 24 load of Tymber Demurrer upon a Plea of Iustification The Defendant justifies that he took the Tymber as a Deputy of a Purve your to the King for the reparations of the Mansion houses of the King To this Plea of Iustification the Plaintiff demurs and for cause sheweth that it doth not appear that the Defendant hath any authority by the Common-law or by Statute to take this Tymber for the Commission which gives this authority ought to be renewed every sir Months Commission and it doth not appear that it was so in this Case 2 Institut f. 545. 10 E. 4. 2 3. 2ly He hath not shewed that the Houses were in decay when he took the Tymber and he cannot take it to make a Common stock to repair them afterward when they should fall to decay Purveyours 3ly Purveyours ought to pay ready mony for the commodities they take and he doth not shew in our Case that he paid ready mony for the Tymber by the Stat. 36 Ed. 3. C. 2. 47 Ed. 3. f. 8. but by 22 Ed. 3. Tit. Bar. 259. it seems to be otherwise but the Case there differs from this Case for there it was that a Purveyour may take Horses to use for a time without paying mony but it was not to alter the property 4ly He hath not shewed that he endevoured to agree with the Plaintiff for his Timber as he ought to have done Plea Hill 2 Car. rot 509. Parker and Sturgens case 5ly The plea is hudled up and is not pleaded particularly and distinctly as it ought to be so that the Plaintiff knows not how to take an issue 10 H. 7. The rule of Court was to bear the other side Friday next Brereton and Monington Trin 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour Court and the Error assigned was Error to reverse a judgement given in an infetiour court Plaint Amendment that the Plaint was entred against Francis and the proceedings were against Iohn Roll Iustice said that it was not good for a Plaint is in the nature of an original writ and therefore if that be erroneous it cannot be helped though it be after a verdict And therefore shew cause Saturday next why the Iudgement should not be reversed Gallop against Symson Trin. 24 Car. Banc. Reg. CHase brings an Action of Trover and Conversion against Gallop Error to reverse a judgement in a trover and conversion and his wife and a stranger in the Common pleas and hath a verdict and a Iudgement against them The Defendant brings a writ of Error to reverse this Iudgement and assigns for Error that the Plaintiff declares that the goods for which the Action is brought venerunt ad usum ipsorum viz. of the Husband and his wife and the stranger which cannot be Declaration for they cannot be said to come to the use of a Feme covert Roll Iustice This is not good for he ought not to declare that the goods came to the use of the Feme but to the use of the Husband only And therefore reversetur judicium except cause shewn to the contrary Saturday next Wainewright and VVhitly Trin. 24 Car. Banc. Reg. VVAinewright brought an Action upon the Case against Whitly Arrest of judgement in an action upon the case for these words spoken of him Thou art a theef and hast broke my Chest The Plaintiff hath a verdict The Defendant in arrest of Iudgement moves that the words are not actionable But Roll Iustice said notwithstanding my Lord Hobarts opinion he held the words are actionable for the word and is cumulative and aggravates the former words Cumulative Explanatory are not barely explanatory and the subsequent words are violent and may very well stand with the former Therefore let the Plaintiff take his Iudgement The King and Camell Trin. 24 Car. Banc Reg. ANn Camell endicted at Southwold in Suffolk for Felony and Witch-craft was brought to the Bar by an habeas corpus An arraignment for witch-craft and was here arraigned The prisoner desired Walker for her Councel Roll Iustice asked her for what cause and matter she did desire Councell To which the prisoner making no answer Roll Iustice viewed the Endictment and upon that assigned her Walker for her Councel and gave him the next day to shew his exceptions against the Endictment at which time Walker desired that the Endictment might be read which was done and upon the reading of it he took these exceptions 1. To the caption wherein it is expressed that the Endictment was taken in pena cessione Endictment where it should be in plena cessione To this Roll answered if
deliver certain commodities ad ratum instead of secundum ratum But to this Roll Iustice said that ad ratum secundum ratum are all one in signification 2ly There is no time set forth when the promise was made for it is set down in figures which is all one as if it were not set down at all Roll Iustice The Record is not so though the transcript be Amendment therefore that may be amended 3ly There are two several promises and they are both alleged Roll Iustice It s well enough 4ly The Venire is not retorned for it is not retorned to be in omnibus servitum executum Retorn To this the Councel on the other side answered it appears that there is a panell retorned and therefore it is well enough though those words be omitted Roll Iustice The panel is not retorned nor annexed according the Statute and therefore it is no return in Law Therefore let the Iudgement be reversed for this cause except cause shewed to the contrary VVatson against Scotson Trin. 24 Car. Banc. Reg. VPon a sute between Scotson and Watson in the Court of Admiralty To discontinue an action and to discharge the Bayl. Discharge Scotson entred into an Obligation to Watson Watson brings an Action of Debt upon this Obligation in this Court against Scotson Scotson appears and puts in bayl to the Action and after moves the Court that Watson may be ordered to procéed in the Admiralty upon this Obligation in regard the Bond was given there and that the bayl here may be discharged Roll Iustice I will not release the bayl for it is filed and it is a Record here Bayl. and it is not unduly done Aylet against Oates Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 397. A Iudgement was given in the Common-pleas in an Action of Assault and Battery against three Error to reverse a judgment in Assault and Battery The Defendants brings a Writ of Error to reverse this Iudgement and assigned for Error that the Action was brought against three and that they all appeared by Attorny and pleaded whereas one of them was an Infant within age and ought to have pleaded by his Guardian and that Iudgement was entirely given against them all which must be void against the Infant and so it being intire is void also to the two other Defendants Wild of Councel with the Defendant in the Writ of Error argued that the Iudgement may be reversed in part Iudgement viz as to the Infant and yet may stand good against the other Defendants for the Action might have béen brought against them severally as well as joyntly 35 H. 6. f. 21. 5 Ed. 4. f. 7. Roll Iustice said it is ruled contrary Where a Iudgment is reversed for an error in Law against some of the Defendants it is reversed against all of them but it seems to be otherwise where it is reversed for an Error in Fact 35 H. 6. 2. Hales on the other side moved to reverse the Iudgement wholly Discontinuance for it is an entire Iudgement and cannot be reversed in part only for all the Defendants are equally concerned in it and a discontinuance against one of them reverses the Iudgement against all of them and he denyed the Book of 5 Ed. 4. Error and cited 29 Ed. 3. f. 39. Roll Iustice said if it be a Iudgement at the Common-law or a Iudgement where costs are given by the Statute if it be reversed as to one it is reversed to all And here is an entire judgement given by the Common-law and it cannot be helped But bring me the Book Postea Crook against Samm Trin. 24 Car. Banc. Reg. Mich. 23 car rot 311. SAmm had a Iudgement in the Common-pleas upon a Nihil dicit in an Ejectione firmae Error to reverse a Iudgment in an Eject firmae The Defendant brought a Writ of Error to reverse the Iudgement and assigned the general Error The Plaintiff in the Iudgement prayed it might be affirmed Roll Justice demanded of him if it be a Iudgement upon a Nihil dicit how can it be of this Term Therefore give notice and move again Iudgement But the Iudgement is ideo consideratum est quod recuperet and there wants defendens capiatur and therefore the Iudgement is erroneous and how can it then be affirmed 3 Car. in the Exchequer Mich. 5 Iac. rot 269. Allens Case 17 Car. Stewart and Stewart in the C. B. Error and though it be a Iudgement by default yet it is a Iudgement but being erroneous it cannot be affirmed Therefore advise what you will do Hobart against Boraston Trin. 24 Car. Banc. Reg. IN an Action of Debt brought upon the Statute of 2 Ed. 6. for not setting forth of Tithes Arrest of Iudgement in Debt upon the Stat. of 2 Ed. 6. for not setting forth of Tithes Copy after a verdict It was moved in arrest of Iudgement that the Statute was not well recited for the Parliament began in the first year of Ed. 6. and was prorogued and the Act was made the 26th of November and not the fourth as it is set forth to be For proof of this a Copy of the Parliament-roll and an Affidavit to prove the Copy to be true were read in the Court Hales of Councel on the other side said that the Copy was taken out of the Parliament-Iournal-book only and not out of the Writ for prorogation of the Parliament as it ought to be Roll Iustice said to the Councel on the other side Advise you how to answer this and let the Iudgement stay in the mean time antea Pimley against Robinson Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 476. RObinson brought an Action of Trespass against Pimpley Error to reverse a Iudgement in Trespass vi aâ—mis in York for entring into his Close and taking away a Mare and a Bridle in the County of York and had a verdict and a Iudgement against the Defendant The Defendant brings a Writ of Error to reverse this Iudgement and assigns for Error that the Court was said to be held on Saturday the ninth of November whereas the Saturday on which the Court was held was not the 9th day of November Error but the 7th and so there is no Court alleged to be held for on the 9th day there was none held 1 H. 7. 11 E. 4. 10. Roll Iustice It should seem they did not look well into the Almanack if they had this mistake had not been Let the Iudgement be reversed except cause be shewn Monday next Mogg against Shute Trin. 24 Car. Banc. Reg. Trin. 23 Car. rot 2097 IVdgement was given in an Action of Trespass Error to reverse a judgement in Trespass and a Writ of Error thereupon brought to reverse this Iudgement and the Error assigned was that the Venire was returned by one that was not Sheriff at the time of the return To this it was
must not be too hasty to overthrow such presentments which so much concern the publique good And in this case if there be a conviction in law Conviction Travers and the fine levyed we cannot help it and now you cannot traverse for it is too late Sir Anthony Ashley Cooper against St. Iohn Mich. 4 Car. Banc. Reg. SIr Anthony Ashley Cooper brought an Action of Trespasse upon the Case for false imprisonment of him against St. John Arrest of Judgement in an action on the case and hath a verdict against him the Defendant moves in arrest of Iudgement and takes this Exception to the Declaration that it wanted vi et armis which ought to have been because this is not a meer Action upon the Case but in its nature it is an Action of Trespasse and therefore he ought to have been declared in with vi et armis Roll Iustice answered what say you to the Case Declaration quare fregit suum mill dam which hath been adjudged good without vi et armis as well as with vi et armis and in one case it shall be said to be an Action of Trespasse viz. with the vi et armis and in the other an Action upon the Case viz. without the vi et armis and Bacon Iustice cited the 9. rep The Earl of Shrewsburyes Case Roll Iustice It is a plain Action upon the Case as it may appear by reading of the Record for it is with an et quod cum Bacon Iustice said one cannot have an Action of Trespasse for the breaking of another mans fence but if he be damnifyed by the breaking of it Tresasse Case he may have an Action upon the Case against the party that broke it Ayre against Sils Mich. 24 Car. Banc. Reg. AYre brought an Action upon the Case against Sils Arrest of Judgement in an action upon an assumpsit Case upon a promise to pay certain arrerages of rent appearing due unto him upon an accompt made between him and the Defendant The Plaintiff had a verdict The Defendant moves in Arrest of Iudgement and for cause shews that an Action upon the Case doth not ly upon a promise to pay rent appearing due upon accompt for the rent was due by a reall contract and upon that the Plaintiff had remedy without the promise To this the Court said that this Action doth not ly for rent alone due upon a real contract but for the rent with other things it doth lye yet let the Iudgement be stayed for there is here no new consideration appearing to ground this promise upon but only the old consideration of Law for the payment of the rent and upon that an Action of the Case doth not ly for it is in the realty Tomkins against Jourden Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 96. A Writ of Error was brought to reverse a Iudgment given in an inferiour Court these Errors we are assigned Error to reverse a judgement given in an inferiour court 1. It is said in the stile of the Court that the Court was held per consuetudinem et literas patences which is not good for the Court cannot be held by both Roll Iustice This is not good 2ly Against the writ of Error it is objected by the other side that the writ of Error is directed to one and is retorned by another for the certiorari was to certyfie a Iudgement given before the Maior Aldermen and Recorder and the Iudgement certifyed is a Iudgement given before the Maior and the Aldermen and the Recorder is left out so that the Record is not removed and then the Iudgement cannot be affirmed Roll Iustice said the pleading is confused and Bacon Iustice said you have changed the stile of the corporation by your pleading If a Court be held by Custom Custom and after a patent be purchased to hold it and they hold it by the patent the Custom is gone but bring us a Copy of the certificate of the stile of the Court and in the mean time we will advise Pickering against Barkley Mich. 24 Car. Banc. Reg. Pasc 24 Car. rot 154. PIckering brought an Action of Covenant upon a deed of Covenants of Charter-party Demurrer upon a plea in an action of covenant whereby it was Covenanted that the Defendant in consideration of a certain sum of mony agreed to be paid to the Defendant for fraight of a Ship should make such a voyage and bear all losses and damage which should befall the Ship or Merchandises in her excepting only perills of the Sea and declares that the Defendant had not performed his agreement and for this he brings his Action The Defendant pleads that in the making of his voyage upon the Sea the Ship was taken per quosdam ignotos homines bellicosos whereby he was hindred in making of the voyage according to his agreement to this plea the Plaintiff demurs The question was in regard that in the Charter party perills of the Seas were excepted whether the taking of the Ship by these unknown men of War should be accompted a perill of the Sea or not according to the meaning of Merchants Twisden of Councel with the Plaintiff held it should not and so the plea was not good and that therefore the Plaintiff ought to have Iudgment and said this was not a danger of the Sea but a danger upon the Sea 2ly He said the party it may be might have prevented it by vigilancy or by making resistance and so it may be it was his own fault the Ship was taken 3ly The men of Warr that took the Ship were peradventure English men and then the Defendant is not to be excused for he may have his remedy for what he is damnified against them and cited 33 H. 6. f. 1. and prayed Iudgement for the Plaintiff Hales of Councel with the Defendant held that to be taken and robbed by Pirates is a danger of the Sea even as tempestuous winds and Shelfs and Rocks are And 2ly To that it is said the pirates may be English men we are not able to say of what Nation they were and therefore our plea is good in that point also and prayed Iudgement for the Defendant Roll Iustice said it was not well pleaded to say per homines ignotos Bacon Iustice said The Defendant doth not shew that he and his Ship was carryed per locos incognitos as he should have shewn Plea but Roll Iustice answered that it may be the Ship is yet kept upon the Sea but I suppose that Pirates are perils of the Sea and to this purpose a certificate of Merchants was read in Court that they were so esteemed amongst Merchants Yet the Court desired to have Granly the Master of the Trinity house and other sufficient Merchants to be brought into the Court to satisfie the Court viva voce Friday next following Iudgement was given this Term nil capiat per billam because the taking by Pirates
are accompted perils of the Seas Wood against Clemence Mich. 24 Car. Banc. Reg. Hill 22 Car. rot 804. VVOod brought an Action of Debt upon an Obligation to stand to an award against Clemence Demurrer upon an award pleaded The Defendant pleaded that the Arbitrators made no award The Plaintiff replies that the Vmpire made an award and sets it forth at large The Defendant demurs and for cause shews that it appears by the pleading that the Vmpire was chosen before he ought to be for it appears not that the Arbitrators could not agree in making the award or that they had any power to make an Vmpire 2ly The Award is made for satisfaction to the Owners and Mariners of the Ship concerning which the submission was made Award and one of them is the Plaintiff in this Action and they cannot arbitrate that the monies which concern one shall be paid to another and so all the award is naught Also here is nothing arbitrated concerning Iohn Acton the Master of the Ship who is one of the parties within the submission Roll Iustice As to the first Exception it is not a material one as I conceive But give a note of your exceptions to the Councel of the other side and bring us Books Postea Frere and others against Mich. 24 Car. Banc. Reg. AN Action of Debt was brought for 1500 l. upon a deed of Charter-party Arrest of judgement in debt The Plaintif had a verdict The Defendant moved in arrest of judgement and offers for cause that the Declaration was insufficient for it appears not by it that the Defendant is indebted to the Plaintif and then there is no cause of Action for the Declaration only says that he is indebted as it appears but shews now how Roll Iustice said it is by indenture and well enough Dyer 2 3 Phil. and Mar. f. 148. Plowden 121. 122. Debt Covenant Buckleys case 143. Browning and Beestons case 21 E. 4. f. 29 he said either an action of debt or an action of Covenant lies here for it is upon a Charter-party Here is not indeed a perfect allegation yet it is well enough for it hath béen usually thus pleaded Speak to it again Wednesday next Dison against Bartue Mich. 24 Car. Banc. Reg. DIson brought an action of Assault and Battery and taking of his goods Arrest of Iudgement in Assault and Battery against Bartue and had a Verdict the Defendant moved â—â— arrest of Iudgement and shewed for cause that the Declaration was â—â—â— good for it is with a quod cum c. which in an action of trespass vi et â—â—mis is not good for it is not a direct affirmative that the Defendant did the Trespass but it is only an implication that he did it but as it is it might have been good if the action had been an action of Trespasse upon the case The Iudgement was stayed till the Plaintif should move Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to stand to an Award Demurrer upon an Award pleaded The Defendant pleaded nullum arbitrium The Plaintiff replies and sets forth the Award and assigns a breach The Defendant demurs The Plaintiff after demurrer moves the Court that he might discontinue his Action But the Court said that after a demurrer upon an Arbitration it is not usual to discontinue the Action Discontinuance But let nil capiat per billam be entred if cause be not shewed to the contrary Mich. 24 Car. Banc. Reg. AN Action of Debt was brought by Baron and Feme upon an Obligation made to the Feme dum sola fuit Arrest of Iudgement by Baron and Feme and the Declaration is ad damnum ipsorum The Plaintiffs had a verdict The Defendant moves in arrest of Iudgement and for cause shews that the Declaration should not be ad damnum ipsorum Declaration but only ad damnum of the Husband only But the Court held that the Declaration was well enough and said it is the usual way of declaring in such Actions and the mony due upon the Obligation not being paid to the Feme whilest she was sole it was dammage to her and now being Covert it is a dammage to the Baron also and so it is ad damnum ipsorum 16 E. 4. Therefore let the Plaintiff take his Judgement Quatermans Case Mich. 24 Car. Banc. Reg. IN the Case of one Quaterman Antient use of practâ—c altered Roll Iustice said that out of indulgence to the Bayl it hath been the use of later times that if the Bayl do bring in the principal before the retorn of the second Scire facias which was taken out against the Bayl Discharge thereupon to discharge the Bayl but antiently it was not so but it was then counted too late to bring him in Hill and Harris Micst 24 Car. Banc. Reg. AN Action of Debt was brought against divers Executors Arrest of judgement in an action of Debt against Executors The Defendants plead fully administred and upon this an Issue was joyned and a verdict found for the Plaintiff The Defendants moved in arrest of Iudgement that there is contrariety between the issue joyned and the verdict found for the Action is entire against all the Executors and they had all pleaded fully administred Verdict and upon this the issue was ioyned and the veredict finds that some of the Executors had fully administred and that others of them had Goods in their hands whereas the verdict should have been that they had not fully administred The Iudgement was stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. VPon a rule of Court to shew cause why restitution should not be granted upon an Endictment of forcible entry Cause why no restitution upon an endictment of forcible entry exception was taken to the Endictment that it did not say that the party entred illicite manu forti as the words of the Statute direct and it was said that in a forcible entry there ought to be an entry expulsion and deteyner Roll Iustice said that there ought to be manu forti in the Endictment according to the Statute to distinguish this kind of Entry from an ordinary Trespass by entring into anothers Land which is not so violent as a forceable entry is supposed to be But let us see the Copy of the Endictment Gibbs against Dunn Mich. 24 Car. Banc. Reg. GIbbs brought an Action upon the Case against Dunn Arrest of judgement in an action upon the Case for words for these several words spoken of him by the Defendants Wife at several times viz. thou art a thief for stealing my corn out of my Barn and at another time for saying thou art a thief The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement that entire dammages were given for both the words whereas the first words were not actionable Dammages entire Intendment for the
because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
Reg. MEmorandum on Wednesday the 14 of November 1648 Henry Roll Serjeant at law then one of the Iustices of this Bench took his place in Court as Lord chief Iustice of England and Twisden moved for a day to plead between Dunch and Smith being the first motion that was made in Court after he took his place The Lord chief Iustice Roll first took his place Popham against Hunt Mich. 24 Car. Banc. Reg Mich. 23 Car. rot 558. POpham brings an Action of Covenant upon an Indenture against Hunt Demurrer to a Declaration in an action of Covenant the Defendant demurs to the Declaration and the Plaintiff joyns in the Demurrer Vpon the pleading the Case appeared to be this a Feme sole delivers a certain sum of mony into the hands of I. S. and the Defendant thereupon Covenants with the Feme to pay unto A. B. 100 l. a yeer so long as the mony should continue in the hands of I. S. The Feme takes Baron The hundred pound per annum is arrere The Baron makes his Executor and dyes and after his death the 100 l. a yeer is behind also Popham the Executor brings this Action of Covenant Covenant and the question was whether the Action was well brought and the Court held the Action did lye for the Covenant doth concern the Executor because he represents the Testator but the question here is whether the rent due after the death of the Husband ought to be paid and how it shall be known whether he be dead for it is not specially alleged and if he be not dead there is no cause of Action Therefore consider of this Bragg against Nightingall Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 601. BRagg brought an Action of Covenant against Nightingall upon an Indenture Demurrer to a Declaration in an action of covenant The Defendant demurs to the Declaration The Case was this The Plaintiff let by Indenture certain houses for divers years to the Defendant and covenanted with him to repair the houses by such a day expressed in the Indenture The Defendant by the same Indenture covenanted with the Plaintiff that from the time that the Plaintiff was to repair the houses unto the end of the Term for which they were demised he would well sufficiently repair and leave them so repaired at the end of the Term for not performing of this Covenant on the Defendants part the Plaintiff brought his Action The cause shewed for the demurrer to the Declaration was that the Plaintiff had not shewed that he on his part had repaired the houses according to his Covenant and so the Defendant supposed he was not bound to repair because he was to repair from the time the Plaintiff had repaired them and not before and so there is no cause of Action After divers motions Roll chief Iustice said That here was a reciprocal Covenant to be performed on each part Covenant and although one do not perform the Covenant on his part this doth not excuse the other party but he is tyed to perform his Covenant neverthelesse and if he do not an Action lyes against him and he may bring his Action also against the other that first broke his Covenant and therefore the Action lyes here against the Defendant and so the demurrer is not good upon the cause shewed But if this were not a reciprocal Covenant the Law would be otherwise and cited Hayes and Hayes Case 11 Car. and Skippon and Lucas his case 10 Car. But Bacon Iustice held the contrary that the demurrer was good for that it appears that it was the intent of both partyes that the Plaintiff should first repair and after that the Defendant should keep the houses in repair The Court would advise Smithson against VVells Mich. 24 Car. Banc. Reg. SMithson brought an Action upon the Case upon a promise against Wells A special verdict in an action upon the Case upon a promise and declared upon a promise made to save the Plaintiff harmlesse from such an obligation when he should be thereunto required The Defendant pleaded non Assumpsit and upon this a special verdict was found viz. generally that the Defendant did make promise to save the Plaintiff harmlesse from the Obligation that he had not done it The question hereupon was whether the verdict had found the same promise set forth in the Declaration because that was to save harmlesse upon request Verdict but the promise in the verdict mentions no request to be made but finds a promise generally to save one harmlesse The Court held that the Plaintiff ought to have Iudgment for that it was the same promise found in the verdict which was set forth in the Declaration for if one promise to save one harmlesse from a thing he that made the promise ought to do it at his perill without request Request Covenant and the request is not material although the promise say upon request But if he be damnified if I do recompence him upon request made the Covenant is not broken Emerson against Ridley Mich. 24 Car. Banc. Reg. Pasc 24 Car. rot 400. RIdley brought an Action of Debt upon an Obligation against Emerson Error upon a Iudgement in Debt upon an Obligation The Condition of the Obligation was that the Defendant should not put his Cattel upon such a Common before a tryal and proof for the Common should be for the Commoners and assigns a breach that he did put on his Cattel upon the Common before the Tryal for the Commoners upon this an Issue was joyned and a verdict and a Iudgement for the Plaintiff The Defendant brings a Writ of Error and assigns for Error that the breach of the Condition assigned doth not agree with the Condition of the Obligation and so the action being brought upon the Obligation and no breach of the Condition being rightly assigned there appears no cause of Action and so the Iudgement is erroneous But it was said by the Councel with the Defendant that tryal and proof of a matter in common intendment is all one Intendment and so the difference alleged was only verbal and not real and it shall be taken to be a breach of the Condition and so there is good cause of Action and the Iudgement thereupon given is well enough Holhead on Councel on the other side denyed it to be all one in sense for that a Tryal may be and yet the Title may not not proved and there may be a Iudgement upon a Nihil dicit where is nothing proved and so concluded the Writ of Error did lye The Court desired to have Books Postea Jones against Iacob 24 Car. Banc. Reg. IOnes a Citizen and Pewterer of London Iudgement in an action upon the Case brought an Action upon the Case against Iacob for these words spoken of him He is gone and doth hide himself for debt and for ought I know he is a Banckrupt The Plaintiff had
is scriptum and for the time the Defendant ought to have alleged that he bad not convenient time Tender if the truth were so but here doth appear convenient time and it is not necessary for the Plaintiff to tender the Obligation but the Defendant ought to do it at his own perill and to pay the mony in convenient time after the mariage and the other is not bound to demand it Intendment nor to be at the charge to make the Obligation Bacon Iustice to the same effect and said the words ought to be intended of a writing obligatory according to common intendment Time and the meaning of the parties although it be not so expressed and it cannot be meant of a promise by parol for there are no presidents in Law for verbal securities but only for securities in writing and the word in debita juris forma implies so much otherwise here would be only one promise to make good another promise Pasc 9 Iac. rot 361. Banc. Reg. 21 Iac. upon a Writ of Error in the Exchequer-Chamber the former Iudgement was affirmed and the breach here assigned meets with the Assumpsit for it is that he did not become bound per c. and so the breach is well assigned 2ly Here appears in the Declaration to be two Months for the performing the promise which is a convenient time and there doth not appear any hinderance and the Defendant was bound to do it without request and there is no necessity for the Plaintiff to make an election of the time when he will have it done The Court bid the Plaintiff take his Iudgement except better matter were shewed on Monday following Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry To quesh an Endictment The Exception was that the forcible entry is said is to be made in messuagium sive tenementum which is incertain But Roll Chief Iustice doubted whether the exception was good or not because it was messuagium sive tenementum and the word Messuage may be good though Tenemen tum be not But it was quashed upon another exception The King against VVood. Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment taken at a Sessions against one Wood for getting the horse of another man into his possession To quash an Endictment by using another mans name and a false token The exceptions taken against it were 1. The Endictment doth not say that it was contra Statutum But to this the Court answered that it was an offence at the Comon Law and the Endictment lay at the Common Law and therefore it need not to be expressed to be contra formam Statuti 2ly It doth not shew what the false token was nor in whose name it was used But Roll chief Iustice took another exception viz. that the Endictment was that the Defendant did the fact nuper and that is so general a word that no answer can be given to it And for that it was quashed Twigg against Roberts Mich. 24 Car. Banc. Reg. Hil. 22 Car. rot 956. AN Action of Debt was brought against an Executor in Bristow upon a Custom of concessit solvere by him to pay a Debt due by the Testator upon a simple contract and a verdict and a Iudgement for the Plaintiff Error to reverse a Iudgment in Debt against an Executor The Defendant brought a Writ of Error in this Court to reverse the Iudgment and the Error assigned was that the custom of bringing an Action of Debt upon a concessit solvere is not a good custom Custom Wager of Law because it hindrers the party to wage his Law as by the Law he may do Walker of Councel with the Defendant in the Writ of Error argued that it was a good custom because the party is not thereby hindred of a tryal and there are customs in London which are against the Common Law as for example for the Recorder to give Iudgement upon an exigent The Court desired to see the book and to have presidents brought them And said This Custom had been allowed against the party that made the contract but the doubt is whether it be good against an Executor for a concessit solvere is without any consideration And Roll chief Iustice said that this custom doth break three rules of the Law Barker against Denham Mich. 24 Car. Banc. Reg. Trin. 23 Car. rot 1280. BArker brought an ejectione firmae against Denham Special verdict in an Ejectione firmae and upon not guilty pleaded an issue was joyned and the reupon a special verdict was found that by the Custom of the manour whereof the Lands in question were held a Copyholder might surrender his Copyhold out of Court into the hands of two customary Tenants to the use of another and at the next Court the party to whose use the Copyhold was so surrendred used to be admitted and That there was such a surrender made here but that the party to whose use the Copyhold was so surrendred dyed before the next Court and so was not admitted The question was whether he dying before his admittance shall be said to be a Copyholder by the Custom of the manour or no. Descent Hales Argued that he is not a Copyholder within the Custom and then if this Custom hinder not the Lands shall descend according to the rules of the Common Law for so is it of all Copyhold Lands if a speciall custom hinder not and here 1. the words of the Custom are to be considered and 2ly Custom how they are to be expounded and for this he cited 49 E. 3. f. 19.22 E. 3.2 E. 4. f. 24. A Custom shall be construed according to the Common apprehension of the lay gens and a Custom shall be interpreted according to the most effectual operation of the Law 3 H. 7.5 Doct. and Stud. 48.21 H. 7. f. 33.44 Ass f. 10.4 H 8. Dyer 28. A denyal actual by a Copyholder to pay his rent is a forfeiture Forfeiture not an implicative denyal lib. intrat f. 238. And by a surrender of a Copyhold before admittance the surrendree hath no real possession and the heir of a Copyholder before his admittance holds by the Copy of his Ancestor and so he hath title but the surrenderee can have no title before admittance Title and he cited Rawlins and Iones his case and Spurlins case A surrender before admittance is but a a consent of the party to part with the estate but passeth it not and after administration it should have no relation to the surrender Twisden for the Defendant Relation 1. He agreed that a Copyholder before admittance is not perfect in his Estate but yet the admittance shall relate to the surrender and both shall be accounted one entire Act contrary to other learnings 2ly The Son is in by descent and the descent must be ruled by the custom and he is now
really a Copyholder and cited Shellyes case and prayed Iudgement for the Defendant Roll chief Iustice said This Case differs from surrendring into the hands of Tenants for it is into the hands of the Steward out of Court Surrend Admission which is good and the Lords acceptance of his rent is an admission But Bacon doubted and therefore the rule was for the Case to be argued again the next Term and then by reason of sicknesse I was absent But that Term held not by reason of the Kings death Dunch against Smith Mich. 24 Car. Banc. Reg. DUnch brought an Action of Debt as Executor for arrerages of a rent charge due to the Testator against Dunch Arrest of Iudgement in Debt brought by an Executor an occupyer of the land out of which the rent was issuing and hath a verdict The Defendant moved in arrest of Iudgement and for Cause shewed that the Plaintiff doth not shew any title that the Defendant hath in the Land but only sayes generally that he entred into the Lands and so it appears not that he is to pay the rent To this the Councel on the other side answered that the Plaintiff being but an Executor cannot know the title and therefore is not bound to shew it Roll chief Iustice said there can be no Iudgement for the Declaration is too generall But Bacon Iustice held the Declaration good enough Antea Brown against Poyns Mich. 24 Car. Banc. Reg. THe Case was this a man made his last Will and made two Executors For a prohibition to repeal an administration Prohibition Appeal the Executors dye in the life of the Testator the Testator dyes having two Sisters the eldest Sister procures Administration the younger Sister moves for a Prohibition to repeal the Administration because she being in equal degree of king ought to have equall share of the Administration But the Court answered that a prohibition lies not for you may appeal if the Administration be not rightly granted Mich. 24 Car. Banc. Reg. A Processe issued out of this Court for a Cart and Horses that were cause of a mans death as a deodand 12. Iac. To stay processe for a deodand and it was moved that there hath been a generall pardon by Parliament since that time by which deodands were pardoned and therefore it was prayed the processe might be stayed General pardon The Court asked whether there be not an exception of deodands or the Almoners interest in the pardon The Councell answered there is not The Court demanded by what words in the pardon are deodands pardoned The Councel answered by the generall words The Court ordered thereupon it should be stayed till the Almoner be heard what he can say Mich. 24 Car. Banc. Reg. THe Court was moved for a habeas Corpus for one that was taken in Execution by the Sheriff and was afterwards set at liberty For a habeas corpus for one taken upon one Execution Audita querela and after that retaken upon the same Execution The Court answered take it but you are in the wrong way for you ought to bring your audita querela The King against Bray Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry made upon a Lessee for years upon the Statute of 21 Iac. To quash an Endictment of forcible entry The exceptions taken to it were 1. It doth not appear by the Endictment that the Lessee had any title to the Land at the time of the force committed for the force is supposed to be done before the lease commenced 2ly The lease is supposed to be a lease for so many years if I. S. shall so long live and it is not averred that I. S. was alive at the time of the forcible entry made Averment Roll chief Iustice cited the Lady Morlyes case that there ought to be a direct allegation of the life Therefore let it be quashed Mich. 24. Car. Banc. Reg. THe Court was moved to quash an Endictment of Assault and Battery of an overseer of the poor villae de A. in executing of his office The exceptions taken to it were To quash an Endictment for assaulting a Collector for the poor 1. That there is no such officer as an overseer of the poor villae but it ought to be parochiae but the Court said it was well enough as it was though it had been more proper the other way 2ly The Endictment is for the Assaulting and beating a Collector for the poor in executing his office whereas there is no such office appointed for any one particular man by the Law for the Statute is that there shall be two Collectors for the poor in every Parish and so the office is joynt and not several But the Court over-ruled this exception also 3ly It wants vi et Armis Vpon this exception the Court bid the Councel move it again Gill against Crosse Mich. 24 Car. Banc. Reg. THe Plaintiff brought an Action of Debt against two as Administrators upon fully administred pleaded issue was ioyned Speciall verdict in Debt against Executors and a speciall verdict was found to this effect viz. that one of the Administrators had fully administred and that the other Administrator had assets It was urged against the Verdict that the issue that was found is impertinent and impossible Verdict Iudgement and so there can be no judgement given upon it But the Court answered that the verdict is good yet if Iudgement should be given upon it the Iudgement would be ill and Nevills and Greenwoods case Hill 7. Car. in the Exchequer rot 1189. was cited and it was said that Iudgement may be against that Executor who hath assets and nil capiat per billam against the other that hath fully administred But take Iudgement at your peril Preston against Holmes Mich. 24 Car. Banc. Reg. Trin. or Mich. 24 Car. rot 2052. VPon a special verdict found the Case in effect was this Arguments upon a special verdict upon a Will one in see having one Son by one venter and another Son by a second venter did by his last Will devise all his Lands to his wise for life and after her death to I. his eldest Son and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law and so the devise to be of no effect to make him come to the Lands by purchase Christopher Turner held that the devise is void because it sayes no more than the Law says for if there had been no such devise Iohn his Heirs should have had the Land and he cited Paramour and Yardlves Case in the Comentaries and Hob. rep Counden and Clarks case But it is objected that in this case the Law speaks one thing and the devise another thing and so the devise says not the same thing To this I answer there is no difference concerning the alteration of the Estate
and damages are assessed and said It is true that the judgement is right entred but there is no Verdict to warrant the Iudgement and therefore it cannot be good and therefore let it be reversed if cause be not shewn to the contrary But we will not pronounce it now except the party desire it for his own expedition Ayre against Pyncomb Mich. 1649. Banc. sup AYre brought an Action upon the Case against Pymcomb for surcharging of a Common and for treading the Grass Arrest of Iudgement in an Action upon the case for surcharging a Common Assize Trespass upon the case The Plaintif had a Verdict The Defendant moved in Arrest of Iudgement That an Action of the Case doth not lie in this case but an Assize 2ly That an Action of Trespass doth not lie for a Commoner for treading of the Grass 3ly The Trespass is alleged to be done in quibusdam peciis pasturae and the quantity of them is not shewed To the first Exception Roll chief Iustice answered That the Plaintif may have an Assize or an Action upon the Case at his election although here be a disturbance of the Plaintifs freehold although that the antient books say the contrary And thereupon the Court gave Iudgement for the Plaintif except cause shewn to the contrary Brook against Hogg Mich. 1649. Banc. sup Hill 24 Car. rot 660. A Iudgement given in an Action of Debt upon an account in the Court of Knaresborough was reversed here Iudgement in an accompt reversed for Error in it because the Venire facias was Venire facias c. which in an Inferiour Court is not good Venire but it ought to say Venire facias duodecem probos et legales homines de c. so express all at large in words and not with an c. Note Many Iudgements given in Inferiour Courts have been here reversed upon the same exception But I only mention this for an authority to be cited upon occasion Ibson against Beale Mich. 1649. Banc. sup Hill 24 Car. rot 625. IBson brought a Writ of Error to reverse a Iudgement given against him for Beale in the Court at York in an Action of Debt upon an Obligation Error to reverse a Iudgement in debt and assigned for Errors 1. That the party hath not entituled himself to the Action 2ly The issue is not well joyned for the Plaintif saith ideo ponit se super patriam where he ought to say Issue petit quod inquiratur per patriam 3ly He concludes to his damage of l. 1. i. fifty pounds expressed in numerical Letters viz. l. for fifty and L. for pounds Damage instead of quinquaginti librarum The Iudgement was reversed upon the last Exception Stubs and Manklyn Mich. 1649. Banc. sup A Writ of Error was brought to reverse a Iudgement given in the Court at Owse-bridge in York Error to reverse a Iudgement in debt in an Action of Debt upon an Obligation and the Common Error only assigned But Roll chief Iustice upon Oyer of the Record took this exception That the Record was ideo praeceptum est Vicecomiti and it is not said in Curia and so it doth not appear to be the Process of the Court And for this Error the Iudgement was reversed Venire Topladye against Stalye Mich. 2649 Banc. sup Mich. 24 Car. rot 596. TOpladye brought an Action of Trespass quare clausum fregit pedibus ambulando c. against Stalye Demtirrer and argument upon a plea in Trespass The Defendant makes a special justification That he did enter into the Plaintifs Close to search for Shéep that were stollen from him To this Plea the Plaintif demurr'd and for cause shews that the justification is not good for it is not said by the Defendant that the Plaintif had stollen the Shéep or that he had any suspition that he had stollen them or that any other had stollen them driven them upon the Plaintifs land and so had no colour to come there to search for them and the Books of 17 E. 4. f. 1. and 27 H. 8.23 6 E. 4.7 21 H. 7. f. 10. 22 H. 6. f. 36. 38 E. 3. f. 10. were cited Iustification Another exception was also taken That the Defendant doth not say that the Gate of the Close where he entred was open and though he may justifie to search for his Shéep in the Close yet he cannot justifie the breaking of his Close to doe it But Roll chief Iustice over-ruled this exception And for the matter in Law whether the Defendant had made a good justification or no. He held that he had not for all that he hath alleged by way of Iustification is but matter of private profit to himself Distress Damage feasant and not for the publique good for he went not thither to find or apprehend the Felon but to look for his Shéep And if Cattel be stollen and put into my ground I may take them damage feasant or bring an Action of Trespass against the owner and the owner cannot take them away without the license of the possessor of the ground Licence for if he might by that means the possessor of the ground would be without remedy for the damage the Cattel had done him And he said That when one hath suspition of another for felony he ought to shew the cause of his suspition Arrest otherwise the party suspected ought not to be arrested upon it and concluded that the Plaintif ought to have Iudgement Ierman Justice held that the Defendant ought to have Iudgement because a private injury as this Trespass is ought to give way to the publique good viz. the discovery of Felony and here is a publique good intended and it ought to take place of the Plaintifs inconsiderable injury And he said that one may be arrested for Felony only upon Common fame if there be a felony committed Otherwise it is if there be no Felony done Ask Justice said the Case was hard on both sides But the Court gave Iudgement for the Plaintif except cause should be shewn to the contrary Mich. 1649. Banc. sup VVIld moved the Court that the retorn of a Habeas Corpus granted for certain rioters called the Diggers that were committed by Iustices of Peace upon finding the Riot upon their view might be filed To quash a Retorn of a Rescous which was granted upon which he moved that the prisoners might be discharged but the Court commanded the retorn to be read upon the reading of it Wild took this exception viz. That the prisoners were committed contrary to the Statute of H. 4. c. 7. for by that Statute the Sherif ought to be present at the finding of the Riot which was not so here Walker held that the Iustices had power by the Statute without the Sherif to enquire of the Riot and to commit the Rioters But Roll chief Iustice said that there is no enquiry made in this
although the thing demanded be entire for he may as well release after the writ brought as before and there was no question but he might have released part before and he may release where there is an ill demand as well as where a demand is good Jerman Iustice held that Iudgement ought not to be given for he said that the reasons of the cases cited are not like to the reason of this case for here the verdict is not given for the same sum which is demanded and it doth appear that here is an unjust demand and it is his own fault and if the Defendant had demurred upon the Declaration it would have been adjudged no good Declaration But Nicholas and Ask Iustices agreed with Roll chief Iustice and so judgement was given for the Plaintif except better matter should be shewn on Saturday next Avery against Kirton Mich. 1649. Banc. sup Mich. 23. Car. rot 239. KIrton brought an Action of trespass against Avery Error upon a judgement in trespass and declared upon an original for imprisoning him till he entred into a bond of 600 l. upon Not guilty pleaded the Plaintif had a verdict and a judgement The Defendant brought a writ of Error and upon the Certiorari to remove the Record the Record was certified and in nullo erratum pleaded but the original in the Record certified was that the Defendant kept the Plaintif in prison til he entred into 2. bonds of 300 l. a piece whereas the right original was till be entred into one bond of 600 l. whereupon the party brought a new writ of Error and by that had the true original certified The Councel for the Defendant in the writ of Error said That original after original may as well be certified before in nullo est erratum pleaded Certificate as afterward but here the parties are at issue and the first original is certified and issue joyned upon that and there cannot be a new original certified and the original here doth not agree with the other parts of the Record and so cannot support it and our original certified stands with the Record and here is no Certiorari to warrant the original here certified and it is a material variance 3 Iac. Banc. Reg. Cummins case 9 H. 6. f. 38. Pasch 1649. Kedgwins case Yard on the other side answered that now the original is certified and is before you in this Court and you ought to judge as it is and not as it ought to be and it is agreeing with the former process And both the originals were before the Declaration and the Court shall take the right original and the other shall be intended for another cause Roll chief Iustice said The Certiorari is general and not inter partes praedict but the certificate is inter partes praedict And the Court may take the right original that is certified and the Iudges are not bound by the plea in nullo est erratum that is pleaded but may grant a new original writ of Error but the party cannot require it for he is concluded by his own plea Original Certiorari and if he discontinue his original he may have a new but not if he plead and the Certiorari is good and well certified and therefore judgement ought to be affirmed Ierman Nicholas and Ask to the same effect and so judgement was affirmed except better matter should be shewed Saturday next Ratcliff and Dudeny Mich. 1649. Banc. sup Entred Hill 23 Car. rot 369. VPon a special verdict A question upon the case falling out upon a special verdict the case was this A lease of a house and lands was made to I S. for 99 years the remainder to I D. for 99 years the remainder to A. B. for 99 years provided that if the lessees doe not inhabit in the house let during the whole term that then the lease shall be void The question here was How long the lessees were bound to inhabit in the house whether for the first 99 years or for that term also during all the years in remainder and which of the lessees were to Inhabit Windham held that the two first lessees only ought to inhabit during the first 99 years and no longer But Roll chief Iustice held that those in the remainder were not bound to inhabit before the remainder falls to them but reddendendo singula singulis they ought to inhabit successively one after another And he took an exception to the verdict That the lease being to begin after the death of one Robert Dudeny it did not find that Robert was dead and so it appears not that the lease is yet begun and so there can be no question stirred as yet Venire and thereupon the case was not argued but a Venire facias de novo was to issue because the special verdict was imperfect Cane against Golding Mich. 1649. Banc. sup THis case Opinion of the Judges upon an arrest of Iudgement in an Action of the case formerly spoken to and argued being an Action of the case for slandering the Plaintifs title was now spoken to by the Iudges And first by Roll chief Iustice who held that the Action did not lye although it be alleged that the words were spoken salso et malitiose for the Plaintif ought to shew a special Cause But that the verdict may supply But the Plaintif ought also to have shewed a special damage which he hath not don and this the verdict cannot supply The Declaration here is too general upon which no good issue can be joyned and he ought to have alleged that there was a communication had before the words spoken touching the sale of the lands whereof the title was slandered and that by speaking of them Case the sale was hindred and he cited 13 Iac Tuer and Bailyes case B. R. 21 Iac. Doctor Edwards and Balls case and 4 Car. Roe and Harwoods case a Iudgement in it in Windsor Court and reversed here and 12 Jac. Sell and Paryes case B. R. Ierman Iustice to the same effect and he said that there ought to be damnum et injuria alleged to maintain the Action for one without the other is not enough and here doth not appear any damage because there appears no communication of selling of the land Nicholas and Ask Iustices of the same opinion So the rule was Nil capiat per billam except better cause shewn Roll Iustice said that there is digitus Dei in the case for there was a strange verdict found Mich. 1649. Banc. sup THe Court was moved for a Supersedeas for the Earl Rivers For a Supersedeas for a Peer of the Realm denyed Privilege Notice who was Arrested by a bill of Middlesex and is in custody of the Marshall of this Court because he is Peer of the Realm and ought not to be arrested The Court answered You must plead your privilege if it be so for we cannot take notice of it upon a motion
an Obligation of 2000 l. for the payment of 1000 l. The Defendant appears and imparls and after imparlance pleads in Abatement of the writ that he is Earl of Nova Albion in Ireland and ought to be impleaded by that name and not by the name of Edmund Plowden Knight upon this plea the Plaintif demurred 1. Because it came in after imparlance whereas a plea in abatement of a writ ought to be pleaded before imparlance 2ly Plea The plea is sâ—ivolous for he pleads that he was Earl of Nova Albion before he entred into the bond which he cannot now plead Estoppel for he is estopped to plead so by his own déed which testifies the contrary Roll chief Iustice said it is a dilatory plea for he is but a Knight here though he be an Earl in Ireland and his own Obligation stops him from pleading as he doth And therefore let him shew cause why he shall not plead in chief within a week otherwise let Iudgement be entred Vid. antea VVats and Dix Hill 1649 Banc. sup Entred Trin. 24 Car. rot 1529. AN ejectione firmae was brought for certain lands in Lincolne Shire and upon not guilty pleaded Argument upon a special verdict in an ejectione firmae there was a special verdict found to this effect I. S. being seised of the Lands in question in Fée made a Feoffment there of to A. B and C. D. and to their Heirs till they should maite a Lease of the said Lands for divers years to certain uses to begin at the Feast of Philip and Jacob next comming The Feoffees enter and make a lease for years of the Lands to begin from the Feast of Philip and Iacob next The question was whether the Feoffees have made such a Lease as the deed of Feoffment directs and so the uses are raised thereupon or whether it shall be intended another lease and not warranted by the Feoffment and so no uses raised Latch held that the Lease is not warranted by the deed of Feoffment and that there are no uses raised for the words at the Feast and the words from the Feast make several beginnings of the Lease and so here is another Lease made than the deed intended 2ly It is not in effect and intention the lease of the parties because it is not made according to their directions and so there are no uses raised for the authority is not pursued nor the precedent condition observed and so the lease hath another beginning and another ending and so it must be another Lease Fitzh graunts 63. And here is not the same reversion intended to the party viz. his Son Watson because it is upon another Lease and so a different reversion And although the Iury might have found the intent of the party and so the same Lease yet they have not found it 2. rep Crumwells case 5. rep Earl of Rutlands case and if the Iury find evidence only and not matter of fact the Court can give no Iudgement 9. rep Downhams case the meaning of the party ought to be found Oxfords case 10. rep 11. Iac. Banc. Reg. Isack and Clarkes case 3 Ed. 6. Bendloes Reports As to the second point viz. whether the use shall result to the Feoffor or remain in the Feoffees he held that it doth result to the Feoffor and remains not in the Feoffees For first there was no other thing intended to be in the Feoffees than to make the lease good and that is not here done and Dyer 300. cited is not to this purpose The intention of the parties is not prevalent in directing of uses and Dyer 300. may be applyed to our case to determine the use 4. rep 82. Barbers case Mich. 2 3 Eliz. Bendloes Reports the use reverted Dyer 16 Eliz. Humphrestons case An estate ought to be made in convenient time otherwise the use is to revert out of the Feoffees to the Feoffor according to his first estate 3ly For the question whether a good estate passe to Elizabeth and the others he held that there did a good Estate passe either by bargain and sale or otherwayes But it is good by bargain and sale notwithstanding it be upon consideration past which is no consideration and the other consideration expressed to raise the use hurts not and here is a good consideration Mich. 8 Iac. Gosman and Carington C. B. There was no good consideration but a curtesie 13. and 14 Eliz. Horwoods case there was a good consideration although there be no monies paid but land for land 2ly If it doe not pass by way of bargain and sale yet it shall pass by way of Covenant to stand seised to uses and the consideration expressed is good to raise the uses Bedles case 7 Rep. these considerations cannot be silenced by the considerations of bargain sale nor shall the intent to pass it by way of bargain sale hurt it if he take by way of use yet it makes not the joyn tenancy operate as a tenancy in Common so it is the same lease declared upon and not divers and there is no disseisin by the entry of the Lessee at election for though he be not Lessee by the Lease intended yet he is Lessee by the one Lease or the other for the Lease is made either by the Feoffor or by the Feoffee and so he prayed judgement for the Plaintiff Pannell for the Defendant put the case at large and made these questions 1. Whether here be such a Lease as the first Indenture doth direct 2ly If the use do not arise where the estate is 3ly Whether there be a good bargain and sale 4ly Whether there be a good consideration to make a bargain and sale 5ly If there be not a good bargain and sale whether it shall enure by way of Covenant to stand seised to a use and he said if all these points be not for the Plaintif all is against him and he held that the words at and from are all one as to signifie the intent of the parties The words have here an extraordinary signification according to time and place and at or in a place are all one and the word at may be satisfied with time precedent or subsequent quae incontinenter fiunt inesse dicuntur et instans est indivisibile and he denied Berwicks case in the 5th Report to be law And here is no need of a forced construction for the intent of the party appears by the case 8 rep 91. For the second point if the Lease be not good and no use raised then where the estate of the land is And he held that it is in the Feoffees not withstanding for here the use is limited but not in the cases put on the other side And here was a fee simple determinable but it being become impossible it is a fee absolute Trin. 18 Car. Roll and Bois and Dyer 300. is mistaken in putting of the case on the other side And it cannot result for
displacings of estates because it puts an estate in a stranger who ought not to have it as Bredons Case is where one doth acknowledge another to have the inheritance by the fine this is a forfeiture By the fine here the Conusor acknowledges more to the Conusee than he hath and he might have expressed in the fine the estate that he hath in the Land and no more and so there is an estate in possession here Ierman Iustice said the fine shall not be construed to do wrong but the Case is of consequence therefore he would advise Nicholas held it was no forfeiture Ask was of the opinion of the chief justice Roll chief Iustice said estopels will make forfeitures in many Cases Q. what Iudgement was given Meers against French Hil. 1649 Banc. sup Entred Hil. 24 Car. rot 24. AN ejectione firmae was brought for ejecting the Plaintiff out of a rectory Arrest of Iudgement in an Ejectione firmae and declares of a lease thereof made unto him by Indenture The Plaintiff had a verdict the Defendant moved in Arrest of Iudgement that the Plaintiff had declared of a lease per Indenturam Declaration and doth not say in curia prolatam The Court answered if an Indenture be pleaded but by way of inducement it is not necessary to say in cruia prolatam otherwise if it be pleaded to entitle the party by it 2ly He declares that the Defendant did eject him out of such a close and doth not say whether it was pasture or arrable land nor how many Acres it was Roll chief Iustice said it is not good if it be of a close of Land if he do not give it a name nor declare of what nature the land is 3ly He declares that the Defendant ejected him de uno Crofto which is incertain But Roll chief Iustice said That a writ of Dower and an Assise will lie de uno Crofto and so will an Ejectione firmae Dower Assise although a Formedon will not lie de uno Crofto And therefore let the Plaintif take his Iudgement except cause be shewed to the contrary Monday next Postea Hill 1649. Banc. sup Entred Trin. 24 Car. C. B rot 1010. A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Action of Trover and Conversion of divers goods Error to reverse a Iudgement in Trovers Conversion for many improper words used in the Declaration to express several of them as 1. Argentum servitium is used to express a silver Salt-cellar which is not good for servitium is Latin for service And in Parker and Martyns case in this Court Instrumentum ferreum anglice a Horse-lock was held not good and 3 Iac. Robotums case Hama anglice a Crow of Iron was adjudged naught 2ly He declares de duobus Castoribus anglice two Hats 3ly De duobus Catents pro patinis anglice Dishes 4ly De duodecem Crinalibus et plagulis anglice Coifs and Crosscloaths Ed. Turner prayed for Iudgement notwithstanding these exceptions Because as to the 1. there is no proper word for a silver Salt-cellar and it is here well enough described by divers words 2ly There is no proper Latin word for Hats called Demy-Castors and therefore it is lawfull to frame words so for the rest being new things not known to the Romans there are no Latin words for them so words may be invented well enough to express them and servitium argenteum is here with an anglice and therefore it is a good description of the thing and de instrumento ligneo Composito anglice a skreen hath been adjudged good because there is not a proper word to express it But the Court doubted of the words used for Coâ—fs and Close-clothes because they are divers things Ierman Iustice said argenteum servitium anglice a silver Salt-cellar cannot be good for servitium is Latine for service But Roll chief Iustice said if servicium signifie nothing then the Iury gave no damages for that and then the rest may be good But yet the Iudgement was ordered to be reversed except cause shewed and was then at the prayer of the Councel pronounced which if it be not prayed the Iudge will not doe it Quod nota Peise against Mablye Hill 1649. Banc. sup Pasch 1649. rot 222. A Writ of Error was brought to reverse a judgement given at Launceston in an Action of trespass upon the case Error to reverse a judgement in an action upon the case for words for these words These Town weights in Georges possession meaning the Plaintif who was the Common weigher of the Town are false and cosening weights The 1. exception was that here was no Communication had of the Plaintif but the words are only spoken concerning the weights 2ly The judgement is not well entred Case Judgement for it is said to be given ad eandem Curiam whereas it ought to be per eandem Curiam Upon these exception the Iudgement was reversed Colson against Ree Hill 1649. Banc. sup Hill 24 Car. rot 561. A Writ of Error was brought to reverse a Iudgement given in the Court at Newcastle upon Tyne in an Assise of Novel disseisin Error to reverse a Judgement given in an Assise Assise of Nusance The Error assigned was that the Plaintif doth declare that the Defendant did disseise him de uno muro lapideo and that the Defendant had erected a house in the place to his nusance The Court answered The Plaintif ought to have brought an Assise of Nusance for this wrong which because he hath not done let the judgement be reversed Batisford against Yate Hill 1649. Banc. sup Pasc 1649 rot 289. A Writ of Error was brought to reverse a judgement given in an Action of Trover and Conversion for these errors Error to reverse a judgement given in a Trover and Conversion Venire 1. It is said of the Iurors in entring of their verdict Dixerunt pro querente and aly In the awarding of the Venire it is ideo praeceptum fuit with an and so it is not certain whence the Venire issued as it ought to be The rule was the judgement should be reversed if cause were not shewn to the contrary Cooke against More Hill 1649. Banc. sup Trin. 1649. rot 645. COoke brought an Action upon the case against More upon an Assumpsit Demurrer to a plea in an â—ction upon an Assumpsit to pay for certain barrels of béer sold and delivered unto him such a day The Defendant pleads specially that he did not assume as the Plaintif hath declared To this plea the Plaintif demurs because that by thus pleading the Plaintif is tied up to a particular day whereas he may give in evidence for any other baâ—rels of beer sold at any time before the Action brought The Court ordered cause to be shewn why the Plaintif should not have judgement upon this demurrer Banbury against Basely Hill 1649. Banc. sup
the bringing of the writ of Error is delay enough and therefore if you have not assigned the Errors according the rules of the Court they shall not be now accepted Dewick against Bamber Hill 1649. Banc. sup THe Court was moved upon an Affidavit that the Defendant might plead and goe to tryal That an Attorney might be forced to plead Plea Appearance because his Attorney hath appeared and now he saith he is not an Attorney of this Court and doth refuse to plead Roll chief Iustice answered If he hath appeared and yet will not plead enter your judgement against this Clyent and though he have not appeared if he did promise to appear we will force him to doe it VVhitchurch against Pagot Hill 1649. Banc. sup THe Court was moved in the behalf of Whitchurch a Clerk of this Court To be restored to a Clerks place in the Castes Brevium Office that he might be restored to his Office in the Office of the Custos brevium according to an Order of this Court otherwise that he may have liberty to bring his Action against the Custos brevium The Court answered that the Master of the Office is answerable for all his Clerks and hath power over them and they are not Officers but méer Servants and therefore there is no remedy to be had in Law against him Restitution but in Conscience he ought to restore him Therefore let him shew cause next Term why he should not be restored In Michaelmas Term 1654. After divers motions and hearing what was objected on both sides upon his submission in Court to Mr. Paget the Master of the Office he promised to restore him Mich 1649. Banc. sup THe Court was moved in Arrest of Iudgement that the Plaintif was 19 years old Arrest of Iudgement for pleading per Guardianum and sued per guardianum which ought not to be for after he is 17 years years old he ought to sue per Attornatum suum The Court answered this is no good exception for if he be within the age of 21 years he may sue per guardianum and he is admitted by the Court to doe so And therefore let the Plaintif take his Iudgement Bigford against Topsam Pasc 16â—â— Banc. sup Mich. 1649 rot 85. A Writ of Error was brought to reverse a Iudgement given in an Action of Debt upon an obligation with the condition for the payment of a certain sum of money after the return of the Ship Error to reverse a judgment in debt to the Port of Plymouth The Defendant pleaded a special plea to which the Plaintiff demurred upon this demurrer the Iudgement was given for the Plaintiff upon which Iudgement the writ of Error was brought Wadhaâ—â— Windham assigned for error 1. That there issued a pone out of the Couâ—â— of Plymouth returnable the 1 of March and the Defendant did not appear till the 8 of March and so there is a discontinuance Hales of Councell on the other side answered that the Plaintiff had accepted of a Declaration Discontinuance and so that fault is helped The Court answered the acceptance of the Declaration doth not help it But the Record is not so therefore passes ouster A 2d Exception was that there is no bail taken Bail for it is erroneous bail and so shall be accompted no bail The Court answered this is not material here A 3d. Exception was that it is said that the plea was held before the then Maior and doth not shew that he was elected The Court answered it is well enough as it is though it might have been otherwise It was adjourned Custodes Libertat c. against Mountain and Lydal Pasc 1649. Banc. sup AN information was exhibited by the Attorney generall against the Defendants for engrossing divers Acres of Corn. Demurrer to a plea to an information for engrossing They pleaded that they had been heretofore prosecuted in the Court of the Exchequer and were acquitted thereof To this plea the Attorney general demurred and these reasons were shewed why the plea was not good 1. It is not pleaded that they were acquitted by judgement or upon a verdict or upon a former information exhibited against them 2ly It doth not appear that the Exchequer had jurisdiction of the cause 3ly There could be no information duly exhibited for it is said to be the 10. of September which is out of the Term and so the Court did not sit 2ly there is no issue joyned for the Plaintiff saith ponit se c whereas it being by way of recital ought to have been posuit se and the other saith petiit quod inquiratur per patriam 3ly There is no verdict in the Case for the issue is non culp contra Statutum and the verdict is non est culp juxta Statutum 4ly There is no judgment for it is eat ad praesens and it ought to be iret ad tunc 5ly There is no averment that the first information was for the same offence 6ly The information ought to be in the same County by the Statute of 21 Jac. and the Barons of the Exchequer are not Iudges by the Statute and so prayes Iudgement against the Defendant Hales of Councell with the Defendant answered to the third exception That in the Exchequer there is a Court the 10. of September to receive informations although it be out of the Term time And he said there is a good issue joyned and a good verdict for the words juxta et contra in this place have one and the same sence And the Iudgement is also good And the information was well brought in the Exchequer notwithstanding the Statute of 21 Jac. for the offence was in Midlesex where the Exchequer is Also if the Iudgement be not good by reason of Error yet it shall be accompted good till it be avoided by plea And although it be erroneous yet here is a discontinuance for Mich. 24 Car. St. Iohn was chief Iustice of the Commons Pleas and not solliciter as the plea supposeth The Court answered that they cannot take notice of that And here is no issue joyned nor any continuance to part of the plea pleaded by the Defendant and the demurrer goes not to the plea upon which the party puts himself upon the Country and there is no demurrer to that The demurrer is referred to the last plea and not to all and so there is a discontinuance to part and the first Iudgement is not void untill it be avoided by plea and here the fact was done in the County where the Exchequer is Void and â—oideable Discontinuance Câ—râ—â—orari and so the Barons are Iudges of it by the Statute and a fine that is voideable is not void untill it be made so by pleading And if you cannot answer the discontinuance all the rest is to no purpose therefore take time to answer that It was said also by the Court that the Defendant may remove an information exhibited against
him out of any County to the Courts at VVestminster notwithstanding the Statute Hamond against Kingsmill Pasc 1649. Banc. sup HAmond a Iustice of peace brought an Action upon the Case against Kingsmill Arrest of in an action â—â—r words for speaking these several words of him viz. Mr Hamond did of his own head put into Mores confession that he stole the Lambs And 2ly That he was a debauched man and is not fit to be a Iustice of Peace Vpon not guilty pleaded and a verdict for the Plaintiff The Defendant moved in Arrest of Iudgement that none of the words were actionable or at least the last words are not and so Iudgement cannot be given For the first words he said they ought to be taken in mitiori sensu and they may have a good construction viz. that he framed the confession without being helped by any other body And for the second words that he was a debanched man they cannot touch his office at the present Mich. 24 25. Eliz. C. Banc. 1. because they are spoken in the preterperfect tence not in the present tence The Court said that the words was a debauched man are incertain words Therefore take Iudgement for the first words and nil capiat per billam for the second except cause shewed to the contrary Iennings against Lee. Pasc 1649. Banc. sup IEnnings brought an Action of Assault and Battery against Lee For a repleader because an immaterial issue joyned The Defendant pleaded non cul to the Battery and pleaded a special justification as to the Assault It was prayed there might be a repleader granted because the issue joyned is immaterial The Councel on the other side prayed for Iudgement Wild held that there is an Issue joyned for the Record faith so and the Iury have found the Issue and if it be ill it is not helped by the Statute and so there can be no Iudgement All issues are not joyned by an expresse affirmative and an expresse negative for if it be but by implication it is good enough An immaterial Issue is not helped by the Statute but an informall issue is helped and here the issue is immaterial 32 Eliz. Lovelace and Griffin rot 934. Trin. 22 Car. Coles case rot 932 Banc. Reg. 23 Car. More and Clipson and prayes for a repleader Serjeant Parker on the other side said the cases cited were not to the purpose as to the Case at the Bar for here is a good issue joyned to one thing pleaded if not to the rest Roll chief Iustice held that where there is an immaterial issue there ought to be a Repleader and it is not helped by the Statute and there can be no Iudgment for the matter is not putin tryal Repleader and for this cause it would be unreasonable to give Iudgement Ieofail Issue and this is an immaterial issue Trin. 9 Car. entred Mich. 8 Car. rot 366. Tayler and Sparks an affirmative and an implyed negative make a good issue though it be not an express negative Therefore replead Hurd against Lenthall Hill 1649. Banc. sup Entred Mi h. 1649. rot 568. VPon a special verdict in an ejectione firmae Question upon the words of a will whether a joyntenancy or a tenancy in Common The Case upon the words of a Will was this Lands were devised to two daughters equally to be divided and to the Surviver of them and to the Heirs of the Body of the Surviver of them Maynard held that here is a joyntenancy because otherwise the Will cannot take effect in all parts Hales held that there is a tenancy in Common and not a joyntenancy nor any crosse remainders Roll Chief Iustice said That the words equally to be divided in a Will Ioyntenant Tenant in common do make a tenancy in Common by construction but in a grant it would be otherwise but here upon the entire Will it doth not appear that the Lands should be divided but that there should be a Surviver And the Land was intended for a security for a portion and that the devise should stand till the monyes should be paid And in a Will the last words of it do explain the first words but it is not so in a grant Will. Grant All the Iudges agreed in opinion with the chief Iustice and Iudgement was given for the Plaintiff nisi causa c. Pasc 1649. Banc. sup THe Court was moved for a Certiorari For a certiorari to the Lord Maiors court of London Certiorari to the Lord Maiors Court of the City of London to remove an information exhibited in that Court against a Woodmonger of London grounded upon an Act of Common Councell The Court answered we cannot do any thing in it if it should be removed hither if it be grounded upon an act of Common Councel but if the Act of Common Councell be against Law we may grant a Certiorari Adjourned till Friday next to hear Councell on both sides Lamb against Duff Pasc 16â—â— Banc. sup VPon an Affidavit the Court was enformed that Lamb had arrested Duff after a verdict found for Lamb against him to the intent For false practice that he may have him in Custody when the Iudgement is entred against him and for no other cause as appears by his own confession it was therefore prayed the party may be set at large The Court made answer that this was a strange and an irregular course and ought not to be If one take out a latitat against one and have no cause of Action against him the party may have an Action of the Case for it Case Attach nt Take an attachment if he will not discharge the party or else let him shew cause to morrow why he should not discharge him Hollingworth against VVhetstone Pas 1649. Banc. sup HOllingworth brought an Action of Debt upon a single obligation against Whetstone Demurrer to a plea in debt upon a single obligation Bar. Abatement The Defendant pleaded payment of part of the sum since the Action brought in Bar of the Action To this Plea the Plaintif demurred The Court answered the plea was not good in Bar of the Action but in abatement of the Writ it had been good Therefore let the Defendant shew cause why Iudgement should not be against him upon the demurrer Gibbon against Kent Pasch 1649. Banc. sup Pasch 24 Car. rot 60. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas Error to reverse a judgement in debt upon the Statute of 2 Ed. 6 in an Action of Debt brought upon the Statute of 2. Ed. 6. for the not setting forth of Tithes The Errors assigned were 1. That it doth not appear that the Lands sowed do lye in the Parish that is laid in the Declaration 2ly The Plaintiff hath not intitled himself well to his Action for the Statute of 3â— H. 8. is taken away by the Statute of 13 Eliz. 3ly The Statute is
writ of Error upon an exception taken to it as it was entred in the Record but because it was but a mis-entry the writ it self being right Amendment the Record was ordered to be amended by the Writ Roberrs and Tucker Trin. 1650 Banc. sup Pasch 18. Car. rot 116. THe Court was moved to quash a writ of Error because the writ was to remove a Record coram Majori et Recordatori To quash a Writ of Eror whereas the Record certified was a Record coram Majori et Deputato recordatori Roll chief Iustice the Record is not well removed why may you not have a new Certificate upon the same writ But that cannot be and therefore you must have a special writ directed to remove the Record before the Maior and the Deputy Recorder Alteration for if there be a special cause to alter the usual form of a writ the Cursitors ought not to hold themselves to the old presidents but are compellable to alter them if the case require Abatement Therefore let the writ be abated and take another Writ Vid. anteâ— Shertlife against Tymberlye Trin. 1650. Banc. sup Hill 1649. rot 438. SHertlife brought an Action of Debt against Tymberlye upon an Obligation Demurrer to â— Plea in debt upon an Obligation to save harmless the condition whereof was that the Defendant should save the Plaintif harmless from such a person should release unto him all his right in certain goods The Defendant pleads that he had saved the Plaintif harmless and had released unto him all his right in the goods and to this plea the Plaintif demurred and shews for cause that the Defendant ought to have shewed how he had saved the Plaintif harmless because the condition was in the affirmative To which the Court agreed because he might have pleaded generally in the negative viz. non damnificatus and that had béen good and therefore judgement was given against the Defendant Non damnificatus Hobson against Hudson Trin. 1650. Banc. sup HObson brought an Action upon the Case against Hudson for these words Thou wentest to the Wells to be cured of the Pox Arrest of Judgement in an Action for words The Plaintif had a Verdict against the Defendant who moved in Arrest of Iudgement that the words were not actionable because they were too general and uncertain But Roll chief Iustice and Nicholas and Ask Iustices held they were actionable But Ierman Iustice doubted because the party that went to the Wells to be cured might suspect he had the Pox though he had them not But Iudgement was given for the Plaintiff Elsy agginst Mawdit Trin. 1650. Banc. sup Pasc 1650. rot 409. ELsye brought an Action upon the case against Mawdit for speaking these words of him Arrest of judgement in an action for words Thou Sirrah art a rogue and a run-away rogue and didst run away from Oxford and art a rogue upon Record at Oxford The Plaintiff upon not guilty pleaded had a verdict the Defendant moved in arrest of Iudgement that the words were general and uncertain and not actionable the Court thereupon stayed Iudgement till the Plaintiff should move The Plaintiff at another day moves by Hales of his Councell for Iudgement who said that the words are actionable or at least some of them for thou art a rogue upon Record are actionable words and that is part of the words The Court enclined also that they were actionable yet would advise Postea The same Term Iudgement was given for the Plaintiff Chase and Iones against Lovering Trin. 1650. Banc. sup CHase and Iones brought an Action upon the case against Lovering Arrest of judgement in an action upon the case upon a prâ—mise upon a promise made by the Defendant to the Plaintiffs to pay unto them 84 l. out of the fraight of a Ship and for not paying it the Plaintiffs bring their Action Vpon non assumpsit pleaded there was an issue joyned and a verdict found for the Plaintiffs The Defendant moved in arrest of Iudgement allegeth for cause that the Plaintiffs averment in their Declaration of the non payment of the 84 l. is not good Averment for it doth not appear by the averment that there was any fraight due for the Ship out of which the monies were to be paid Roll chief Iustice answered that the Plaintiff ought to have averred that there were monies due for the fraight of the Ship otherwise how can it be known whether there be any monyes due to be paid out of them therefore the averment is very incertain to whom Ierman Nicholas and Ask Iustices agreed Roll Chief Iustice added that it is part of the promise that the mony shall be paid out of the fraight and as the averment is the matter cannot stand together and here is no demand for the monyes to be paid out of the fraight Therefore against the Plaintiff let there be a nil capiat per billam entred Blackden against Harvye Trin. 1650. Banc. sup Hill 1649. rot 928. BLackden brought an Action upon the Case upon an indebitatus assumpsit to pay unto him 9 l. upon delivery of certain Cloath against Harvy as Executor of I. S. Demurrer upon a plea af er imparlance The Defendant appeared and imparled and after imparlance pleads in abatement of the Writ that I. S. made other Executors together with the Defendant who ought to have been named in the Writ The Plaintiff denturs and for cause shews 1. That the Plaintiff doth not shew what goods the Defendant administred nor at what time he administred any as he ought and 6. lac Edwards and Foyes case was cited to prove it A second cause of the demurrer was that the plea in abatement of the Writ is after imparlance which is not good because it is touching a thing in the Defendants knowlege and so he might have pleaded it before imparlance as it is 35 H. 6. f. 36. Ierman Iustice absente Roll answered that the first exception is not material Abatement but he held that the second was a good exception and that the Defendant cannot plead in abatement after imparlance for by his imparlance he hath admitted the Writ good Therefore'plead in chief if cause be not shewed to the contrary on Friday next VVinter against Barnard Trin. 1650. Banc. up VVInter brought an Action upon the Case against Barnard Arrest of judgement in an action for words and declared that upon the rumor that a Bastard Child was drownded The Defendant said to the Plaintiff I do verily believe the Bastard Child was thine nay it was thine upon not guilty pleaded an issue was joyned and a verdict found for the Plaintiff It was moved in arrest of Iudgment that the words are not actionable as they are laid for that it doth not appear that there was a Bastard Child drowned for the Declaration is that there was only a rumor that a Bastard Child was drowned But all the Court
it is too late to claim his privilege Nicholas in all points was against the privilege Roll chief Iustice asked what say you to them that have Declarations on the by against the Earl Declaration for certainly they are good whether he be rightly committed or not for they are not to examine his commitment and therefore surely it is now too late to speak in abatement of the Writ Nayler against Ash Trin. 1050. Banc. sup Hill 23 Car. rot 611. NAyler brought an Action upon the Statute of 5 Eliz. against Ash in this Court for using the Trade of a Draper Arrest of judgement in â—n action upon the Statute of 5 El. or using the â—ade of a Draper and upon not guilty pleaded there was an issue joyned and a verdict found for the Plaintiff The Defendant moved in arrest of Iudgement and took two exceptions to the Plaintiffs Declaration 1. That the Statute doth not name the trade 2. That it being a popular Action it ought to have been brought in the County where the offence was committed and not in this Court. To the 1. Exception the Councell on the Plaintiffs side answered that the trade is comprised in the meaning of the Statute because it was a trade used at the time of the making of the Statute And to the second he answered that notwithstanding that the original processe issued out of this Court yet the tryal thereupon was in the County where the offence was done and the remedy that the Statute intends is made use of by the tryal being in the County where the offence was done Roll chief Iustice answered we directed you to search for presidents but you have not done it But I conceive the Statute is not satisfied for it says that the party shall not be compelled to appear out of the County and here he is compelled Appearance and this is not helped by the verdict to which the Court agreed Ernely against Allen. Trin. 1650. Banc. sup Mich. 1649. rot 351. ERnely brought an Action of Trover and conversion against Allen Error to reverse a judgement in a Trover and Conversion for taking away and converting to his own use divers of his goods and Chattels and amongst others he declares for the Trover and Conversion de ducentis ponderibus anglice waight medicamenti anglice drugs the Plaintiff had a verdict and a Iudgement and entire damages given for all the things laid in the Declaration The Defendant brought a Writ of error to reverse this Iudgement and assigns for Error that the words de ducentis ponderibus anglice waight medicamenti anglice drugs mentioned in the Declaration are incertain and so the damages being given intire for all it was not good Wadham Windham of Councell with the Plaintiff in the Writ of Error held the words to be incertain both in respect of quantity as also in respect of the quality or nature of the drugs for the word pondus may signifie a pound an ounce a dram a scruple or any other waight so that the waight cannot be known And the anglice waight is as incertain as the Latin word pound for waight may signifie as many different waights as the Latin word pondus may But it might have been otherwise if it had been anglice a stone or a weigh which were words certainly known what they mean but here a waight of drugs is not understood by the Drugsters And for the words they shall not be said to be void so that there are no damages given for them for the words are not like to the words duodecem duodena fili for they are adjective words but the words here are substantive and signifie by themselves And the word medicamentum also is as incertain as the other words and the anglice drugs doth not make it more certain for a drug is of as an incertain signification as the word medicamentum for all vegetable creatures and extractions out of them as also out of the living creatures made use of in physick either by themselves or else compounded one with another are called drugs and so he prayed the Iudgement might be reversed Maynard on the other side said that the words joyned with the anglice were certain enough for pondus signifies a waight which word is well and commonly known amongst the Drugsters how much it contains and he cited one Pennyes Case where decem ponderibus without an anglice was held good and one Wardners Case 21 Iac. in this Court Next for the word medicamentum being joyned with an anglice it is a good word to express drugs for of it self it is no Latin word to signifie any certain thing and here is no incertainty in the matter for if I may be brought to a certainty to the Iuries understanding and it is not necessary to express the matter like a Scholar or a Philosopher but only as they are known by tradesmen according to common understanding And in an Action brought amongst other things for a Library of Books which is more incertain Iudgement was given for the Plaintiff and Melbuis Case where the Declaration inter alia was pro decem ponderibus ferri ten tuns of Iron was agreed between the parties and Laurence and Turners Case Mich. 23. Iac. in Trover and Conversion pro tribus ponderibus lani was naught because it was without an anglice Serjeant Glin argued to the same effect on the same side Hales on the otherside said that notwithstanding the anglice the Declaration was incertain And it is not like the cases de tribus ponderibus Anglice weights of Chéese or Salt or stone weight of Chéese And the word medicamentum is as uncertain as the other word for it signifies divers species of things But Roll chief Iustice held that the Drugs were well expressed by the words in the Declaration in the vulgar and usual acceptation of the words Declaration and for the word weight it is also well known amongst Tradesmen Nicholas Iustice said we must not frame niceties to overthrow judgements and here is certainty enough in both the words to describe the thing and it is impossible to express them aptly and particularly Roll chief Iustice said the Declaration is two hundred weight and every one knows the meaning of a Hundred Ierman Iustice held the Declaration certain enough and cited a case where one declared pro decem doliis spirituum Anglice ten Hogsheads of Spirits and adjudged good Ask of the same opinion and so the judgement was affirmed nisi Dudeny against Collyer Trin. 1650. Banc. sup Hill 23 Car. rot 156. DUdeny brought a writ of Error against Collyer to reverse a judgement upon a nibil dicit given against him at the Court of Barnestable in an Action of debt brought upon an Obligation and assigns for Error Error to reverse a judgement upon a Nihil dicit in debt upon an Obligation that the Condition of the Bond was for the payment of money at Wotton Courtney which
the power for it ariseth partly out of her interest and partly out of her Authority and both may well stand together and the Estate made out of both is a good Estate or if not the Estate may be intended to arise out of the power given her to make such an Estate and not out of her interest and the joyning of her daughter is not materiall though no good estate be derived from her and so he prayed Iudgement for the Defendant Roll chief Iustice It is usual in the West of England to make Estates for lives upon the old rent but it is not here expressed of what nature this manor is or whether it used to be let and here is no limitation to let for lives But here either the laster words are idle or else the Feme hath such a power that she may destroy the remainder And itsh all not be intended that he trusted his Executrix with more than he gave her and the words of the Will do not express that and the question is how it shall be interpreted The words may be interpreted Cumulative Interpretation otherwise the feme hath power to destroy the remainder which would be a hard construction To which Nicholas assented Roll chief Iustie The intention of the Testator is not cleer to give this power to the Feme but if it did appear to be his meaning it might be otherwise and here it is in a Will And the Verdict is not well drawn up for the Case might have been made better for all the land may be in Demesite for ought appears by the Verdict Adjourned to be argued again Postea VVebb against Wilmer Pasch 1651. Banc. sup Hill 1650. rot 309. VVEbb brought an Action of Debt for rent reserved by him upon a lease for years made to Wilmer Arrest of Iudgement in Debt for rent reserved upon a Lease for years and obtains a Verdict The Defendant moved in Arrest of Iudgement and alleged for cause that the Plaintif had abated his writ The case was this Webb leaseth certain lands to Wilmer for years reserving a rent with a clause of re-entry for not payment the rent being behind the Lessor brings an Action of Debt for the rent and pending the sute re-enters into the land and after the Lessee re-enters The question here was whether the writ once abated by the Plaintifs entry Reviver Abatement pending the writ were revived by the Defendants re-entry Roll chief Iustice held it was not Twisden argued that the writ is not abated but only abatable by plea and so this matter is not to be offered to stay the Iudgement 5 H. 7. f. 47. and he hath pleaded nothing in abatement but to the Action only and he said that it now being after a verdict it is helped by the Statute Hales on the other side said that it doth here appear that the Plaintif hath no cause of Action for he was in possession when he brought the Ejectment Roll answered If one declare having no cause of Action Declaration Departure if there be cause afterward it is well enough But here is a departure and the 1. Ejectment is not revived for it is purged by the re entry The rule was nil capiat per billam nisi The Custodes Libertatis c. against Hall Pasch 1651. Banc. sup HAll was endicted for forestalling of Butter Error to reverse a judgment upon an Endictment for forestalling and pleaded and had judgement given against him whereupon he brought his writ of Error and took these exceptions 1. That it doth not appear that the Endictment was at the Quarter Sessions as it ought to be by the Statute of 5 Ed. 6. for it is only said to be ad generalem Sessionem Roll chief Iustice answered if it be ad generalem Sessionem it may be intended the Quarter Sessions Intendment 2ly It was objected that there is no Capiatur awarded in the judgement as there ought to be The Court answered they would advise VVillis against Bond. Pasch 1651. Banc. sup Mich. 1650. rot 86. BOnd an Administrator brought an Action of Debt in Bristow against Willis upon an indebitatus assumpsit Error to reverse a judgement in debt and had a judgement The Defendant brought a writ of Error and took these Exceptions 1. That the Plaintif declares for a thing the conusance whereof lyes out of the jurisdiction of the Court Iurisdiction for it is for wages to be paid upon the performance of a Voyage to be made in locis transmarinis Roll chief lustice said this was a good Exception for they cannot enquire at Bristow whether the party hath performed his Voyage or not The 2d Exception was that the Plaintif declares that the Defendant was indebted to him in such a sum of money to render him an accompt The Court answered this is not good Accompt Debt for in such case an Action of accompt lies and not an indebitatus assumpsit And for these causes the Iudgement was reversed nisi and pronounced by Ierman Iustice at the prayer of the Plaintifs Counsel in English being the first that was pronounced so in this Court according to the late Act for proceedings in Law to be in English Quod nota Gowr against Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif Arrest of Iudgement in a Trover and Conversion Demand Trover in a Trover and Conversion brought by Baron and Feme for goods of the Feme dum ipsa sola suit The Exception was that it is not expressed that the goods were demanded by the Feme Roll chief Iustice said the Demand of the Feme is good to found the Action and it was then also said that a Trover and Conversion lies for goods found and converted although they come afterwards to the hands of the party that lost them The Rule was judicium nisi Pasch 1651. Banc. sup MEmorandum The first rule of this Court made in English was between White and Keblewhite Pasch 1651. Pease against Shrimpton Pasc 1651. Banc. sup Hill 24 Car. rot 191. THe Court was informed by Councel that the Habeas Corpus and Bail-piece were lost and therefore it was prayed that there might be a new Habeas Corpus and that the old Bail put in may be allowed by the rule of Court Roll chief Iustice answered make a new Habeas Corpus Habeas Corpus Bail and a new Bail-piece but first let Tutt the Attorney that was Clark of the Bails attend here to be examined whether the Habeas Corpus Bail-piece be lost as is suggested Ritch against Sanders Pasch 1651. Banc. sup Hill 1649. rot 758. RItch brought an Action of Trespass against Sanders for taking away his Corn set forth for tithes Special verdict in Trespass for tithes upon the words of a Will upon issue joyned a special Verdict was found whereupon the case fell out to be upon the construction of the
supplyed by a forein intendment and the party shall be intended to be in custody according to the Custom of London and not by the Common Law Declaration Roll chief Justice held the Declaration good for the prisoner was in custody of both the Sherifs although he was in the Custody of Pack and it stands well enough with the Record and the words ut praefertur do not hurt the averment Averment and the words existent in custodia is a good averment that he was in custody as in an endictment Tunc existens tenementum is good and it is also here found by the Iury that he was in custody for how else could they find for the Plaintif Ierman ad idem But because the two other Iudges had no Books delivered them they would deliver no opinion then Afterward Iudgement was given for the Plaintif Cottrell and his VVife against Theoballs Mich. 1651 Banc. sup COttrell and his Wife brought an Action upon the Case upon an Assumpsit against Theoballs and declared that the Defendant Arrest of judgement in an Action upon an Assumpsit in consideration that the Plaintif would marry A. that is now the Plaintifs wife did assume and promise to the Plaintif to make good a Legacy given unto her by her Fathers Will and would also give unto her 40 l. more out of his own part given unto him by the said Will at her age of 18 years and declares further that thereupon he did marry her and that the Defendant had not performed his promise and so concludes to his damage so much Vpon non assumpsit pleaded and a Verdict for the Plaintif the Defendant moved in Arrest of judgement and took divers Exceptions but the Court insisted but upon one of them and that was held material and it was this That the Wife did here joyn in the Action with her Husband Action which she ought not to do because the promise was made to the Husband only and for his benefit and the sole consideration for the promise doth arise from the Husband namely his marying the Feme And Bafield and Collins his case 22 Car. and Cheesman and Wats case 23 Car. were cited and Roll chief Iustice put this case A promise was made by one to a Feme Covert that if the will procure her Husband to levy a fine of such lands that he would give her a riding suit And it was adjudged that the Baron and Feme cannot joyn in an action for breach of this promise and he said that in the case at Bar it was a meer covenant and no duty grew thereby to the Feme Case Postea Goodyer against Shaw Mich. 1651. Banc. sup Mich. 1650. rot 633. GOodyer brought an Action of Trespass for an Assault and Battery Demurrer to a plea in an Action of Trespass and wounding of his Servant and taking away 12 plate locks against Shaw The Defendant Shaw pleaded not culpable to the Assault and Battery and wounding and as to the taking away of the locks he pleaded a special plea of Justification by vertue of Letters Patents of incorporation granted to the Lock-smiths of Durham by Cutbert Bishop of Durham who had jura regaliâ— within the County Palatine of Durham and that by vertue of this Charter the locks being not good he as Warden of the Company did take them To this Plea the Plaintif demurred and for cause it was shewed that it appears not by the Plea that the Black-smiths are a Corporation created by the Bishop but only that the Customs used amongst them in Order to the regulating of their Trade were confirmed by the Bishop which doth not make them a Corporation Plow f. 199. Long quint. f. 40 41. 2ly It doth not appear by the Charter that they have any authority to take away ill made locks and therefore judgement was prayed for the Plaintif Roll chief Iustice said That here doth not appear any Order made by the Corporation to take away the Locks Corporation and therefore it was done without warrant though the Corporation had such a power But besides it will be very hard to maintain the Lock-smiths to be a Corporation because the Bishop confirmed their Orders Therefore let the Plaintif have his judgement nisi Bishop against Fitzherbert Mich. 1651. Banc. sup BIshop brought an Action upon the Case against Fitzherbert Arrest of Iudgement in an Action for words for speaking these words of him thou art a Theef and hast stollen Horses Vpon not guilty pleaded and a verdict found for the Plaintif It was moved in Arrest of Iudgement that as the words are laid in the Declaration they are not Aâ—ionable for it is incertain of whom they were spoken The Declaration was thus That the Defendant Colloquium habens cum querente in the presence of others dixit meaning the Plaintif Thou art a Theef and hast stollen Horses The Court at thâ— first moving of this Case enclined the words were actionable because it shall be intended they were spoken of the Plaintif though it be not directly said so And afterward it being moved again the Court held the words well enough laid to bear an Action because upon the whole Record the words plainly appear to be spoken of the Plaintif and therefore Iudgement was given for him Freeman against Childeress Mich. 1651. Banc. sup Entred Trin. 1651. rot 45. FReeman brought an Action upon the Case against Childeress for speaking these words of her She is a Whore and I will prove her a Whore Arrest of Iudgement in an Action for words and an arrant Whore Upon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable because they are but words of choler and spoken in passion the judgement at the first moving of it was stayed yet it was then doubted whether the words did not import more in them than to say barely of a woman she is a whore But afterwards it being again moved Roll chief Iustice said that the words were too generally spoken to be actionable and that they are but words of passion and that before the Act made against Adultery prohibitions have been granted to the Prerogative Court for libelling against persons for calling of women whores Prohibitions and therefore Nil capiat per Billam nisi Preston against Mortlock Mich. 1651. Banc. sup AN Action of Trespass was brought against 4 Defendants and before a Verdict one of them dyed and the Verdict was found against the Defendant Iudgement Twisden prayed the Plaintif might have judgement against the other three Roll chief Iustice answered If you will relinquish your damages as to the person that is dead you may have judgement against the rest Davis against the Lord Foliot Mich. 1651. Banc. sup THe Court was moved to grant the good behaviour against the L. Foliot Motion for the good behaviour because he was endicted for a foul Battery at the Sessions
and that by the Will the Land and personal Estate passed unto him for he said if by my Will I make one my Heir This is a devise to him of all my Lands in Fee for the Devisee is put in loco haeredis and shall be like an Heir by descent for he is haeres factus although he be not haeres natus Mich. 31 32 Eliz. rot 235 Godfreys Reports Hob. rep f. 34. b. Coundens case Hob. new edition 75. Spark against Burrell the very case in point adjudged 7 E. 6. Br. Done 44. and Devise 48. and in this Case the Devisee had annuities to pay and monies for Legacies which shews the intent of the Testator to be that he shall have his Lands and Goods neither shall the misspelling of the word Heir hurt the Will for the intent of the Testator shall be followed if it may be known as it may well be here Hob. f. 32.15 H. 7. f. 12. Cooks Lit. f. 323. Dyer 325. 2ly Misnaming in a Will shall not hurt the Will Dyer 323.21 Rich. 2. Fitzh devise 27.10 rep 57. 3ly False Latin shall not destroy deeds nor pleadings though it will abate writs a fortiori false English shall not destroy a Will 9 H. 7.16.10 rep Osborns case Hob. 227.10 rep 133. a. 9. H. 6.7 a. and here is only vitium scriptoriâ— and that cannot destroy a Will Hob. f. 162. Walkers case f. 104 104.9 rep 48. a. Dyer 17 Eliz. f. 342. Digbyes case Another reason is the word Heir is here written according to the pronunciation and sound of the word though it agree not in letters and H. that is left out is no letter but an asperte note and the language in England as it differs in time so it differs in place for men speak not nor write English in all parts of England alike and a Will in latin or greek is a good Will within the Statute so that it is not necessary for a Will to be good English and the Testator was bred in France and could neither write nor speak good English and his Will so much the rather is to be favoured And false English hath been allowed in a Bond viz. senteen for seventeen pounds 9. rep 48. a. much more may it be in a Will and so he prayed Iudgement for the Plaintiff Latch for the Defendant argued that the Will was not good he considered 2. points 1. When a man makes one his solle Ayeare and Yexecutor what construction the words shall have 2ly What Estate is conveyed by them And first he said that Hoberts Case cited by Powis was not to the purpose 1. Because it is not the principal case And 2ly It is but an opinion there and an Heir may be without land And for Counden and Clarks case that was cited as it was urged it is for me and not against me and there can be no authority cited that if one make a man his Heir that his lands are thereby conveyed to him in Fee simple But in our case there can be no certain intent of the Testator found out and the making of one his Heir in France where the Testator was bred according to the Civil Law there used is but to make him his Executor and so the Testator might mean it And if one in his Will say I make one of my Daughters my Heir and do not say of his Lands this shall not disinherit the other Daughters and if there should be any Estate conveyed here it cannot be but an Estate for life Brook Done 44.8 Jac. C. B. Inkersalls case 3ly The ill orthogrophy here makes the Will naught for a Will cannot be made good by conjectures Hob. 34. Mich. 23 Car. Robinsons case the Iudgement was reversed for writing the word Aeris insteed of aeris with a dipthongue Trin. 17 Car. C. B. rot 74. and in Skirret and Skinners case libis with a dash over put for libris was adjudged ill and in our case here are divers words miswritten And for the variation of our English dialect which is objected it is to no purpose because this will was lately made the dialect alters not in so short a time and the dialect of the County where the Will was made viz. Glocester Shire agrees not with the Will And Hill 6. Car. this Will came in dispute in the Court of wards and a decree there passed against the Will in this point The Court said the case is doubtful Will. because the Will doth not say I make him heir of my Land but generally my heir and Executor but the false writing hurts not a Will if the Testators mind may be found out Adjourned to be argued again Wood against Topham Mich. 1651 Banc. sup VVOod brought an Action of Trespasse upon the case quare filium baeredem rapuit et maritavit against Topham Arrest of judgement in an Action on the case upon not guilty pleaded and a verdidict found for the Plaintiff the Defendant moved in arrest of Iudgement and takes these exceptions to the Declaration 1. That the Plaintiff doth not say cujus maritagium ad ipsum pertinet 2ly That he doth not say that the Heir was within age and Maynard of Councel with the Defendant said that the exceptions are not to the writ but to the Declaration and the Action being a Trespasse to recover the Damages the Plaintiff ought to entitle himself to the mariage for the losse whereof he would recover damages for the Heir it may be is not Heir apparent to him and then is no mariage due to him and here is a special Declaration for the losse of the mariage Roll chief Iustice answered Writs Declaration the writs are good both wayes and so may the Declaration be either with those words or without them and he makes not the ground of his Action to be that the mariage belonged to him Common right but of Common right it doth belong to him and the words are used to be alleged only to increase the Damages and the ground of the Declaration is only quare filium suum haeredem rapuit and for this the Plaintiff ought to have his Iudgement Ierman Iustice differed and said the Plaintiff doth not shew he had any damage by the mariage it may be that he had been maryed before or was of full age so no cause of Action Nicholas Iustice as Roll and said that by the Law the mariage belongs to the Father and it may prove a dishonour to the family to have his son taken away and maryed without the Fathers consent Ask Iustice to the â—ams effect and so Iudgement was given for the Plaintiff nisi Antea Mich. 1651. Banc. sup THe Court was moved to mitigate fines Motion to mitigate fines for riots that were to be set upon rioters that were found guilty upon an information exhibited against them for the riotous cutting down of wood But Wild on the other side prayed there might be good fines set
willingly kept a Bawdy house and then he is not punishable Pepes on the other side held the words to be actionable and cited Hill 3 Car. Elsey and Harisons case thou art a whore and a Bawd to thy daughter and keeps a Bawdy house which words were adjudged actionable 24 H. 6.14.38 39. Eliz. In the Lady Barkleys case the keeping of a Bawdy house is an offence punishable at the Common Law and therefore the words spoken are actionable Case Roll chief Iustice To call one whore in London is Actionable And the words here are actionable for the keeping of a Bawdy house is a crime punishable at the Common Law for the party may be endicted for it and it shall be intended to be a common Bawdy house although it be not so expressed Endictment and the Plaintiff is scandalised by the speaking of the words Ierman Nicholas and Ask Iustices were of the same opinion Iudgementt was given for the Plaintiff nisi Snelgrave and Bosvile Pasc 1652. Banc. sup Mich. 1651. rot 200. BOsvile brought an Action of debt against Snelgrave Debt against an heir upon an obligation as Heir unto his Father upon an Obligation entred into by him unto the Plaintiff the Defendant pleads riens per discent jour del bref the Plaintiff replyes that he had lands by descent and upon this an issue is joyned and the Iury find he had lands by descent and name them particularly and upon this a Iudgement is given for the Plaintiff in the Common pleas that he shall recover his debt of the lands descended upon this Iudg ment a writ of Error was brought here and the Error assigned was that the Iudgement ought to have been given generally against the Defendant and not particularly of the lands descended 2ly the Iury ought not to have found what lands particularly the Heir had by descent but generally that he had lands by descent because the issue is general whether he had lands by descent or not and therefore the Iudgement given upon this ill verdict is not good Roll chief Iustice The Iudgement is unwarrantable for the verdict is against the issue joyned Iudgement Verdict and the Iudgement here ought to have been generall of all the lands and goods and against the person of the Heir for his false plea and not particular to recover of certain lands as it is here for this is not so good a Iudgement for the Plaintiff as the general Iudgement is and this Iudgement may be against the Plaintiffs mind Error for any thing doth appear to the contrary and a like Iudgement was reversed in Alleâ—n and Holdens case in this Court Ierman Nicholas and Ask of the same opinion And thereupon the Iudgement was reversed Floyd against Morgan Pasc 1652. Banc. sup A Writ of Error was brought to reverse a Iudgement in an Action of Trespasse for taking away of certain Houshold stuff Error to reverse a judgment a trespasse for taxing away of of goods and the Error assigned was that the Declaration was incertain for that it wanted latin words to expresse the things for which the Action was brought for the Declaration is for the taking away of quoddam instrumentum ferri Anglice a gridiron et quoddam instrumentum ferri Anglice a morter et quaedam instrumenta ferri Anglice brandirons which are words utterly incertain for the generality of them what they may signifie Roll chief Iustice My Iudgement is that the Iudgement is erroneous for we must not take meanings because we are bound up to proceed by the rules of the Law and Statutes and we are to consider here whether there be Latin words in the Declaration as there ought to be to expresse the things for which the Action is brought and certainly this word quoddam instrumentum ferri is too general to expresse any thing and the Anglice added to it will not help it for if the word precedent in it self be not fit Latin to expresse the thing the Anglice subsequent is litle to be regarded Anglice Declaration and these words being incertain the Declaration must be incertain and so the Defendant cannot know what to answer to it or how to defend himself as he ought to do which may prove very prejudicial to him Ierman Iustice Issue The issue cannot be certain if the Declaration be incertain and by the Common Law and Statute Law our pleadings must be Latin and where there are not elegant Latin words to expresse things we may use those which they call barbarous words if they be known for use makes a language and where there are no Latin words we may coyn words and add an Anglice to them and here the Declaration is as incertain also for the number of the things as for the nature of them for here is quaedam instrumenta ferri which may signifie any number be it more or lesse Nicholas and Ask ad idem And so the Iudgement was reversed nisi Antea Brian against Twite Pasc 1652. Banc. sup AN Action upon the Case was brought for speaking these words of the Plaintiff Arrest of Iudgement in an Action for words you are a whore and have plaid the whore with so many men you cannot number them upon not guilty pleaded and a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable for the saying the party had plaid the whore are words incertain and do not enforce any Act of whoredom to be done by her but Ierman Iustice gave Iudgement for the Plaintiff for he said the words should be construed to a common intendment THe Court was moved for Iudgement upon a verdict given 2 years since Motion for Iudgement denyed and the cause stayed till now by the Committee of indempnity but it was denyed because it was the last day of the Term. Nota. Pasc 1652. Banc. sup IT was shewed for cause why a certiorari should not be granted to remove an indictment of battery Certiorari to remove an endictment against an Attorney of his Court preferred at a Sessions of the peace in the Country that the bill was found there and the party hath entred into a recognisance there to go to a tryal the next Sessions Roll chief Iustice The recognisance may be also removed by the certiorari and what hurt can it be if the endictment be removed and the tryal had at the assises and if it be removed hither we will not quash the endictment but the party shall plead and carry it down and try it at the next assises at his own charge Byron against Stonehowse Pasch 1652. Banc. sup Trin. 1651. rot 1658. A Writ of Error was brought to reverse a Iudgement given in a writ of dower in the Common Pleas Error to reverse a judgment in dower in the common pleas the Errors assigned were that the Iudges of the Common Pleas had set a side the verdict given by default by the Iudge of
more goods it is not necessary to do it And the law should do wrong if he should not be first satisfied for now he is a lawfull administrator and also a creditor of a higher nature than the other and because he cannot bring an Action against himself for his debt therefore he may by law retain the goods in satisfaction And he may satisfie a debt upon a specialty before a debt due upon a contract although a sute were commenced for the debt due upon the contract so here he may retain the goods Roll chief Iustice Why shall not here the administration purge the wrong which he did as Executor of his own wrong It is true indeed that he shall not abate the writ by taking letters of administration but he may plead this plea in bar of the Action and here it doth not appear but he is rightly Executor Abâ—tement Bar. without doubt the plea here pleaded had been good to a stranger without letters of administration and the law shall supply the retainer to him here and there is no wrong to the Defendant at another day it was moved again and the Court held the plea good and ordered Iudgement for the Defendant nisi Strode against Homes Trin. 1652. Banc. sup Hill 1651. rot 999. STrode brought an Action upon the case against Homes Arrest of judgement in an Action for words for speaking of these words of him in relation of his office he then being Church-warden of St. Clements Parish in Oxford Thou art a cheating knave and hast cosened the Parish of 40 l. Vpon not guilty pleaded and a verdict for the Plaintiff It was moved in arrest of Iudgment that the words were not actionable because here was no special losse alleged by the Plaintiff nor is he in any danger of corporal punishment by speaking of the words Pasc 10. Iac. Hopper and Baker Roll chief Iustice answered the matter is not so much the losse of his office as the losse of his credit in being accompted a cheater At another day Crook Senior moved for Iudgement for the Plaintiff and said the words are actionable for a Church-warden is not meerly a spiritual officer but an officer by the Common Law and also by the Statute Yarly and Ellis case Sir Miles Fleetwoods case Hob. rep Bray and Haynes Crook Iunior on the other side urged that this is not an office of profit but of trouble and burden and no special losse is alleged Roll chief Iustice Officers which have no benefit by their offices have more need to be repaired if they be scandalised in their Execution of them and here the scandal is great losse to an honest man and what other remedy can he have to repair himself Case but by his Action on the case Ierman Nicholas and Ask of the same opinion And so Iudgement was given for the Plaintiff nisi Trin. 1652. Banc. sup VPon an Affidavit read in Court made by divers prisoners in the upper Bench-prison against Coronel Keyes a prisoner that he is very unruly Motion to remove a prisoner out of the upper Bench prison to Newgate denyed abuseth his fellow prisoners it was moved he might be removed to Newgate But Roll chief Iustice answered if he be unruly the Gaoler must put on irons upon him and kéep him safely there for this is no cause for us to remove him for he lyes there under many actions and we must not remove him to another prison Trin. 1652. Banc. sup THe Court was moved that the party might not have a tryal at the Bar untill he had paid costs upon being nonsute in a former action for the same lands Roll chief Iustice He shall not proceed to another tryal Against a trial at the Bar till costs paid upon a former nonsute Costs untill he have paid his costs for by this means we shall incourage men to be vexatious Freind against Baker Trin. 1652. Banc. sup VVIld moved to amend a Record wherein a Iudgement was given in the Common Pleas For amendment of a record denyed after the Record was removed by a writ of Error into the Chequer Chamber the fault to be amended was that there is day given over to the parties from Easter Term to Michaelmas Term and so Trinity Term is left out which he conceived was but a misprision of the Clark and but a miscontinuance in giving a wrong day to the parties 2 H. 7.11 22 E. 4.3 But Roll chief Iustice answered Discontinuance that this is the act of the Court and by your reason you may skip over 3 or 4 Terms one after another without any continuance The giving of a day more than is necessary is no discontinuance but here wants a day which makes it not a miscontinuance but a discontinuance and so was it adjudged 1 Car. at Reading Term. Nicholas Iustice cited 21 H. 6. f. 16. to be adjudged that it is a discontinuance Roll chief Iustice A miscontinuance is where one processe is used for another and so the processe is mistaken but this is a discontinuance and cannot be amended Amendment For this is not upon a writ of Error out of the Common pleas as we supposed it to be and that the Record had been amended there for then we would have advised whether we would amend it here Miscontinuance but it is upon a writ of Error brought in the Chequer Chamber upon a Iudgement given here Brock against Vernon Trin. 1652. Banc sup BRock brought an action of Debt against Vernon as an Executor upon a bond entred into by Vernon unto the Testator of the Plaintiff Arrest of judgement in debt upon a Bond. the Defendant acknowledgeth the bond but sayes that he gave another bond in satisfaction of that Bond unto the Testator which the Testator did accept of in satisfaction Plea Thâ—ng in Action The Court held this plea ill and that the party might have demurred upon it and needed not to have joyned issue and put it to the Iury for it is no good plea to say that one did accept of one thing in Action in satisfaction of another thing in Action and here the Defendant hath confessed the debt and therefore his plea being ill Iudgement ought to be against him and Iudgement at another day was given accordingly Buckstone against Shuâ—lock Mich. 1652. Banc. sup Entred Trin. 1652. rot 177. A Writ of Error was brought to reverse a given Iudgment in the Common Pleas upon an information Error to reverse a judgment in the Common Pleas upon an information for selling of Wine without licence for selling of Wine without licence contrary to the Statute The Error assigned was that the information was brought in the Court of the Common Pleas which is in the County of Midlesex whereas the offence is alleged to be done at Lambeth in the County of Surry which ought not to be as Davisons case is in Hob. rep Roll chief Iustice How do you prove this
It is considerable in regard it is an office of trust whether it may be leased out although he may make a Deputy Therefore argue it again the next Term. Baker and Andrews Mich. 1652. Banc. sup Trin. 1650. rot 1469. BAker brought an Action of Trespass quare vi armis clausum fregit Demurrer to a replication in Trespasse vi et armis and for taking his Cattel the Defendant as to the force and arms pleads non cul and as to the rest he justifies that the Cattel went in through the defect of the Plaintiffs inclosures the Plaintiff replyes that the Cattel came in through another mans fence into his ground to this replication the Defendant demurs 〈◊〉 shews for cause that the Plaintif doth not assign where the place of the other Close lyes through which the Cattel came through Yard said it is not necessary to shew where it lyes for they went not in where the Defendant hath alleged so the traverse is well taken Wadham VVindham on the other side answered here is a new assignment and he answers not the Trespass for which the Action is brought and because it is a new assignment we must give a new answer and therefore you must shew the place where your new assignment lyes Roll chief Iustice He pleads no more but that the Cattel came in at another place than is pleaded and he needs not shew the place But here the Defendants plea is not good Plea for he pleads a prescription where it ought to be a custom that the occupyers of the land ought to make the sences and he ought not so prescribe in the person Iudgement for the Plaintiff nisi Mich. 1652. Banc. sup BY Roll chief Iustice Who may take advantage of a fault in a Plea Advantage If there be a fault in a plea in matter of form and after there is a fault also in the replication and the Defendant demurs to it but shews no cause of demurrer he shall take no advantage of this fault in the replication but he who joyns in the demurrer shall take advantage of the ill plea and so was it adjudged Pasc 1. Car. in this Court in Prat and Thimblethorps â—ase and he said that all faults in pleading are incurable at the Common Law and therefore those that are not helped by Statutes are left as they were at the Common Law Mich. 1652. Banc. sup ONe was made Constable by order of a quarter Sessions but the party refused to serve Motion to quash aâ— order of Sessions and removed the order hither by Certiorari moved to quash the order but the Court would not do it although ther were material exceptions taken against it but ordered him to plead because they perceived the party was stubborn and they would not give encouragement to such persons Heath and Vdall Mich. 1652. Banc. sup HEath a Caryer brought an Action of the Case against Vdall Arrest of Iudgement in an Action upon the case and declares among other things for plundering of him of viginti fardellas Anglice packs and in arrest of Iudgement it was moved that the words vinginti fardellas Anglice packs is uncertain But Maynard argued that it might be good because the Caryer could not declare otherwayes for he could not know what was in the packs and he cited one Bedingfields case Trin. 10. Car. Declaration where an Action was brought for a library of books and for apparell and adjudged good But Roll chief Iustice said it could not be good for the apparel Wadham Windham on the other side held the words uncertain as they are and said he ought to have shewed that they were packs with goods or have shewen what was in them for a pack is but a measure of a thing Roll chief Iustice answered if it be but a measure of a thing then no damages are given for them and then the Action is good for the rest But we will advise Afterwards in the same Term Maynard moved for the opinion of the Court and thereupon the Court held that the words are incertain as they are for he ought to have expressed what was in the packs and ruled a nil capiat per billam to be entred Levingston and Crompton Mich. 1652. Banc. sup LEvingston brought an Action in this Court against Crompton Exceptions to a plea of privilege The Defendant pleads that he is a Clark of the Chancery and that all Clarks of the Chancery ought to be sued in the Chancery only and not elsewhere and demands judgement if he ought to make any other answer in this Court Two Exceptions were taken to the plea 1. He saith That all Clarks of the Chancery have used to be sued in the Chancery and not elsewhere and doth not say nor any of them have been used to be sued elsewhere and though all of them have not been used to be sued elsewhere yet that hinders not but that some of them have been sued elsewhere 2ly He pleads that he is a Clark of the Chancery and ought to be impleaded in the Chancery held at Westminster before the Keepers of the liberty of England c. time out of mind which is not true Hales answered That this Court ought to take notice of the privilege of Chancery Notice Privilege although it be not well pleaded But Roll chief Iustice denied that they ought to do it and said That it is the Custom for the Clarks of the Exchequer when they plead their privilege to bring the red book wherein their privileges are written into the Court and upon sight of their privilege there written it is used to be allowed but it is not so of the privileges of the other Courts but they must be pleaded and so here And because it is not well pleaded here therefore shew cause why you should not plead in chief Pitton and Rey. Mich. 1652. Banc. sup PItton appeared to an Action brought against him at the sute of Rey Motion for the Plaintif to declare speedily but no declaration was put in against him Vpon an Affidavit that the Defendant was a Merchant speedily to go to Sea It was moved for him that the Plaintif might forthwith declare against him that thereby he might direct his Attorney what to plead and might have his liberty to be gone Roll chief Iustice By the course of the Court he hath thrée terms liberty to declare but this is an extraordinary Case Therefore let him declare Thursday next otherwise he shall not declare till he come back Nota. Mich. 1652. BY Roll chief Iustice A private Sessions of the Peace is not said to be held for the County Staples Case Mich. 1652. Banc. sup A Rule was read on the Capital side for Staples a Iustice of Peace of Sussex Cause why no Attachment against a Iustice of Peace to shew cause why an Attachment should not be granted against him for procéeding upon an Endictment of forcible entry and
professision and cited one Hinkes case where these words spoken of the Plaintif being a Brasier were held actionable viz. Thou hast cozened me of a Pan. And if one say to another Thou hast poisoned a man If the man be dead the words are actionable although he doe not say that he did it wilfully The Court enclined the words are actionable because they are scandalous And the rule was Iudicium nisi c. Hill 1652. Banc. sup VVAdham Windham moved for a Certiorari to remove an Endictment preferred against one in Newgate Motion for a Certiorari to remove an Endictment Roll chief Iustice He lies there for murder and is outlawed thereupon yet take a Certiorari to remove the Record for his fact was the stabbing of a man and stabbing is in its nature but felony Felony Murther and is not murther although the party cannot have his Clergy for it by reason of the Statute made by King Iames against Stabbing else by the Common Law he might have had it Ashworth and Sir Tho. Stanley Hill 1652. Banc. sup VPon a Verdict given for the Plaintif in an Ejectione firmae Arrest of Iudgement in an Ejectione firmae Damages Ejectione firmae It was moved in Arrest of Iudgement That the Ejectment is laid to be of three Messuages or Tenements and a Toft which as to the Messuages or Tenements is incertain Roll chief Iustice You move too soon for it may be the Plaintiff will release the damages as to the Messuages or Tenement and take his judgement only for the toft and the Action lies well enough for that Hill 1652. Banc. sup TWisden moved to discharge Sir Thomas Revell and others of their recognisances for the peace in which they were bound the last Michaelmas Term Motion to discharge recognizances of the peace because the Affidavit upon which they were bound was only to this effect That the Prosecutor goes in fear of his life when he goes into such parcels of land whereas in truth those lands are setled upon Sir Thomas Revell by decree in Chancery and the Prosecutor hath also brought 18 several Actions against the Tenants of the lands and hath declared against none of them and there are four Affidavits against the first Affidavit Green on the other side said that the party is in Court and says he is still in fear of his life Peace and prays he may not be discharged But because upon reading the Affidavits and examining the matter it appeared to the Court that they were bound to the peace upon malice and for vexation they were discharged Hill 1652. Banc. sup BY Roll chief Iustice Who ought to repair High-ways of Common right All High ways of common right are to be repaired by the Inhabitants of that Parish in which the way lies But if any particular person will enclose any part of a way or waste adjoyning he thereby takes upon him to repair that which was so enclosed Massey and Aubry Hill 1652. Banc. sup AN Action of Debt was brought upon an Obligation to stand to an Award Arrest of judgement in debt upon an Obligation to stand to an Award The Defendant pleaded that the Arbitrators made no Award The Paintif replies that the Vmpire made an award and sets it forth and assigns the breach and upon issue joyned and a verdict for the Plaintif It was moved in Arrest of Iudgement that the assignment of the breach was not good for the incertainty of it for the breach is assigned upon but a part of the Award for the breach assigned is that the Defendant should pay the Arrears of rent due after the purchase of certain lands and doth not shew what these Arrears are But Roll chief Iustice said That the words since the purchase thereof seem to make this certain yet stay till the other moves At another day the case was moved again and the same exception insisted upon by Barry of the Inner Temple who formerly moved it Hales held the Exception not good and that the breach was well assigned because though it seem uncertain of it self yet it relates to a thing which makes it certain As an Award for one to deliver to another all the goods in such a Shop which belonged to him hath been held to be good But Barry answered That it is utterly incertain and that there is nothing in the Award which can make it certain and here is a four-fold incertainty in the Award 1. It cannot be known what these arrears are that are awarded to be paid 2ly It appears not by the Award for what lands these arrerages of rent awarded to be paid are due for there are no lands mentiond but only two leases of land 3ly It appears not by whom the arrerages are due 4ly It appears not to whom the arrerages are due Roll chief Iustice All the matter is whether it appears that these arrerages of rent awarded to be paid were in question or no and it seems they were because the lease and the rent thereupon reserved are both in question but it is not certain what these arrears of rent are and so the party that is awarded to pay them cannot tell what sum of mony he is to pay Ierman Iustice said he may know because he was Tenant of the land Barry replyed he cannot know when the purchase was made and the arbitrement is that the party shall pay all the arrears since the purchase Curia advisare vult At another day the case was again moved by Barry and exceptions taken that the breach was assigned upon a thing not submitted unto or awarded to be performed And secondly The award is incertain in many things First It appears not what rent was due to be paid but only by implication which is not good Secondly It appears not for what the rent is due nor 3ly How much rent is due and Salmons case in the 5. rep was cited Also it was objected that the award was not finall and concluding and therefore not good Also the Award is unreasonable and for that cause also it is not good and he cited 21 E. 4. f. 40. and 17 E. 4. f. 51. and prayed for the Defendant that judgement might be stayed Hales on the other side prayed for judgement said That the Arbitrators were not to ascertain particularly the rent to be paid but it is sufficient for them to make the Award touching all the differences betwixt the parties and an averment may ascertain the particular things being they are only matters of fact although one may not be admitted by an averment to supply an Award in a matter wherein it was in the substance of it defective before Roll chief Iustice What certainty is there by the Award that the party shall enjoy all his right in the two leases in difference between the parties for the payment of the rent Both parties know what rent is due reserved by the leases but how can the party know what the
arrears are which are accrewed since the purchase Award for how can he know when the purchase was made for it is made by a stranger and what if the stranger will not tell him when he made it so that me thinks the Award is unreasonable and then it cannot be good The rule was Nil capiat per Billam Nisi c. Hill 1652. Banc. sup THe question being upon a motion in Arrest of judgement in an Action brought for money paid upon a Bill of Exchange brought by a wrong person Question in Arrest of Iudgement in an Action upon a Bill of exchange to whom the Bill belonged not and a verdict for the Defendant Twisden said That if money be paid to a wrong person upon a Bill of Exchange if the wrong person do shew the Bill by the Custom of Merchants this is a good payment and the party that paid it shall not be charged again Wild It is doubtfull whether the Custom be so or not But Roll chief Iustice said Custom here is a verdict for the Custom and therefore it were well if the parties would agree to a new tryal but if they will not take your judgement because the verdict hath found it a good custom Custodes against the Inhabitants of Stoneham in Suffolk Hill 1652. Banc. sup THe Inhabitants of the Parish of Stoneham in Suffolk were indicted for not repairing a High-way Motion to set a fine upon a conviction for not repairing a High-way and a verdict found against them The Court was moved that a good fine may be set upon them because the way is not yet amended and a Traveller that passed that way hath lost his horse since the Tryal by reason the way was so bad so that the Horse brake his Leg. Twisden on the other side moved the fine might be respited because there was a contest between this Parish and another which of them ought of right to repair the way and in regard this Parish is very poor and lastly because the way cannot be amended until Summer and then it shall be done Roll chief Iustice The fine shall be set upon you for not repairing it already because the verdict found you ought to do it and the Country suffers by your neglect Fine Distringas Therefore take a Distringas to levy a fine of twenty pounds of the Parishioners for not repairing it Hill 1652. Banc. sup VVIld moved the Court that paying costs the Plaintiff might have a rule to discontinue his Action because there is such a travers now taken that the title of the land in question can never come to be disputed Roll chief Iustice Motion for the Plaintif to discontinue his Action You may do this by the course of the Court without motion therefore why move you for it But I conceive your reason is because there is a peremptory rule of Court upon you to try the cause this next Term and now you move to avoid the contempt you may fall into for disobeying that rule Contempt if you should not go to a tryal Yet pay good costs and discontinue your Action Q. Nota. Hill 1652. Banc. sup THe Court was moved that a Feme that was sued only as an Executrix might be discharged upon putting in Common Bail Motion that Common bail might be accepted Roll chief Iustice It is the common course if there be no special cause of Action against an Executor as a Devastavit or the like for Common Bail to be admitted Hill 1652. Banc. sup HOdsden One of the Attorneys of this Court For an Imparlance was together with another made a Lessee in an Ejectment Lease and would not grant an Imparlance to the Defendant as the usual course is because he is an Attorney of this Court and so claims his privilege Privilege that the Defendant may answer him this term or else he will enter judgement against him for want of a plea. Q. what was done hereupon Hill 1652. Banc. sup IN the case of one Hoff the Court was moved to confirm a rule made between the Plaintifs Attorney and the Defendants Motion to confirm a rule for a Tryal at the Bar. Roll chief Iustice Let it be so for if the Attorneys agrée to reasonable things we will not oppose them Rule But the Attorneys ought not to make rules of themselves Hill 1652. Banc. sup BOynton moved for a Deer-stealer that was convicted at the Sessions in London upon an Endictment preferred against him upon the late Act made against stealing of Deer and removed hither by a Habeas Corpus Exceptions to a retorn of a Habeas Corpus that the Retorn might be filed and took this Exception viz. That it appears not in what Parish the offence was committed as it ought to doe Roll chief Iustice Here is a conviction and a judgement in the Case and the party is in Execution and therefore bring your writ of Error if the judgement be erronious for we will not overthrow it for a fault in the retorn of the Habeas Corpus But because it did appear to the Court that the party was convicted behind his back they moved the Councel to advice of a way how he may come to a fair tryal for the satisfaction of the party Error and of the people For it is a hard case and let the Marshal take him in the mean time And we will also advise Hill 1652 Banc. sup BY Roll chief Iustice If a sum of money be to be levied upon a Corporation it may be levied upon the Maior or chief Magistrate How money is to be levied upon a Corporation or upon any person being a Member of the Corporation This was spoken in the Case of the Town of Colchester in Essex Nota. Hill 1652. Banc. sup THe Court was moved that a Sherif might be ordered to retorn a Writ upon a pain Motion for a Sheriff to return his writ Pain Affidavit Sugestion But Roll chief Iustice answered let him return it but not upon a pain because here is no Affidavit to prove that he refused to return it but only the suggestion of the Councel at the Bar. Hill 1652. C. B. BY Pinsent protonotary of the common place Who may defend a title in Trespasse and ejectment If one move that the title of land doth belong unto him and that the Plaintiff hath made an ejector of his own and thereupon prayes that giving security to the ejector to save him harmlesse he may defend the title this Court will grant it but will not compell the Plaintiff to confesse the lease entry and ouster except he will be ejector himself But it is not so in the Court of the upper Bench for there in both cases they will compell him to confesse lease entry and ouster But Q. for I have not known it so ruled Hill 1652. Banc. sup AN order of Sessions made at Arondell in Sussex for paying so much money
take advantage of it For the first point we do not absolutely disallow the pardon but we are to enquire whether here be murther or not it there be murther that it may be disallowed otherwise that it may be allowed Murther The Statute laws were made for preservation of the publique peace and to restrain pardons for murther so that after the making of the Statutes murther could not be pardoned without a non obstante in the pardon though before it might have been pardoned in general words And the Parliament hath made divers Statutes to restrain pardons and that murther should not be so generally pardoned as before 2 E. 3. 4 E. 3. 14 E. 3. 27 E. 3. C. by which Statutes it may appear that the opinion was that the King could not dispence with the Statutes with a non obstante and the end of all these Statutes was to enform the King to examine whether the fact he intended to pardon was murther and that he should not grant a pardon for murther without expressing the word murther in the pardon and with a non obstante also Non obstante Dispensation 22 H. 7. 91. Kelway 8 H. 6. f. 20. 9 E. 4. f. 26. Cook Pleas of the Crown 236. and so the Law is without a non obstante 2ly Whether the King can pardon murther with a non obstante where the word murther is not expressed To that I say that if it had been so yet the pardon would not have been good for the Statute cannot be dispensed with by a non obstante because the Statute was made to reform publique abuses for the benefit of the Common-Wealth 11. rep Cooks Pleas of the Crown 237. the King cannot pardon a common nusance 2ly The King hath bound himself by expresse words in the Statute and he cannot dispence with them with a non obstante for then such Statutes made for the advancement of justice would be void and the King cannot pardon a recognisance for the peace before it is broken and the King may bind himself in such manner by expresse words as my Lord Barkleyes case is with the Statute of 1 Iac. concerning Bishops the King cannot dispence but with the Statute of 1 13 Eliz. he may Doctor Hutchinsons case Mich. 10. Iac. C. B. Hob. 103. the King cannot dispence with this Statute because it was made for the advancement of Iustice For the third point though the King might dispence with the Statute by a non obstante yet not with this non obstante in this pardon for the King doth not take notice of the offence in the non obstante and the King is deceived here which the Law will not suffer and here is a hiding of the offence from the King which is against the meaning of the Statute 2ly This manner of pardoning is against all manner of practise for two hundred years and was never used till 2 Iac. but only in Spencers case which was carryed with a strong hand and allowed only pro hac vice 21 Eliz. by Popham the Attorney general by the special command of the Queen untill 2 Iac. for 200. years no non obstante used of the Statute of 13 R. 2. but this is grown up of late years and a Iudge of our own times hath told me that he hath disallowed it 3. Inst 105. it hath been used of late times to make a lease of the parties life viz. to respite execution untill the time of 2 Iac. and that allowance I formerly mentioned pro hac vice may be questioned whether it were good or no. For the fourth point the pleading of the pardon is not good for he hath not pleaded a non obstante for the pardon of the murther but only to dispence with the binding to the good behaviour and the pardon is only recited to prove the plea and therefore it is not to be allowed Therefore let the Prisoner ire sine die and let the matter be inquired in the County where the fact was done Yet we will consider whether he shall be tryed in the Country or here in the mean time Marshall cake care at your perill that you keep him in salva custodia Newman and Massey Trin. 1653. Banc. sup NEwman brought an Action of debt upon an obligation against Massey as an Executor Special verdict in debt upon an obligation against an executor Plea The Defendant pleads generally plene administravit and after issue joyned be gives in evidence a Iudgement against the Testator to make good his plea upon which a special verdict was found The question thereupon was whether this Iudgement may be given in evidence upon the late meal Act to maintain the issue or whether it should not have been pleaded specially in bar of the Action Roll chief Iustice The question is whether the giving the Iudgement in evidence can stand with his plea of plene administravit and it seems it cannot for now you shew an administration in an other way than you pleaded upon a new matter alleged Adjourned At another day Hales argued that a plene administravit is a plea in Bar although it be not a perpetual Bar and it is a general issue because it compriseth many things which may be given in evidence 27 H. 7. 2. 11 H. 6. 35. and it is stiled a general issue Br. gen issue 91. Hob. 106 case f. 227. and it would be mischievous if it should be otherwise Roll chief Iustice If upon the general issue one should give in evidence non est factum would it be good certainly the Act for the general issue in it self is mischievous Issue and we will not enlarge it and this is not the general issue intended in the Statute although it be a common issue for the general issue intended ought to be an issue proper to the Action that is brought and which he might have pleaded at the beginning and who can tell upon this plea what you will give in evidence Evidence and so the Plaintiff can never be provided for you at the tryal and therefore you must rely upon your special plea of plene administravit and not dary from it by shewing new matter Therefore let the Plaintiff have his Iudgement Atwood and Monger Trin. 1653. Banc. sup ATwood brought an Action upon the case against Monger Arrest of Iudgement in an Action upon the case for causing a false presentment to be made against him before the conservators of the River of Thames for suffering 8. loads of earth to fall into the River of Thames and obteins a verdict the Defendant moved in arrest of Iudgement that it doth not appear by the Record what authority the conservators had to take the presentment and if they had no authority then it was coram non judice and the Plaintiff could not be prejudiced by it Twiâ—den answered it is well enough though their authority appears not by the Record because they have authority given them by the
on the other side prayed that judgemâ—nt might be affirmed and said that here was a good consideration to ground the promise upon for there is a Writ of ne exeat regnum and any one may move for it and it is a benefit to the party that the Plaintiff will forbear to sue it forth and he had cause enough here to move for this Writ in order to recover his debt and although it be in the discretion or the King whether he will grant it or not yet it is for his honor to grant it and the Register 193.134 and Brit. 102. make montion of this Writ Instit 130. There is a caution used to be taken of parties licensed to go beyond Seas that they shall pay their debts 2ly The replication is good for it is not necessary to say that the second original sued forth is for the same cause that the former was because it is in an Action upon the Case set forth at large which shews verbatim that it is for the same cause and so it is plain in it self 2ly It is said that he sued out the second Original pro causa praedictâ— which is a sufficient averment if there needed any and the variance in the dammage is no argument that there is another cause of Action for when the second Original was sued forth the dammages were encreased by the encrease of the time being a whole year afterwards For the rejoynder it is to be considered 1. whether the party be assopped 2ly If not whether the matter set forth be good For the first he held that he is estopped by his comming in formerly gratis as an Esquire and being not brought in in custody for Dyer 192. there he shall not plead another name but here this is not alleged as it ought to be for he ought to have concluded absque hoc that he is an Esquire but he hath affirmed himself to be an Esquire by saying of praedictus c. and he ought to have alleged this specially viz. that Richard Boile Knight which was sued by the name of Richard Boile Esquire and the Book 2 E. 4. f. 3. is against the other Books and the Law is otherwaies and the old Book of Entries and other Presidents which are against me they passed sub silentio and the Law generally is against these Presidents Rastal Brief 54.19 H. 6.1.36.44 say that he is estopped if he so come in and so is Br. Tit. Defence 15 26.32 H. 6.3.35 H. 6. and many other Books and the Book of 19 H. 6.43 urged on the other side is against them and though he should not be estopped yet we can take advantage of the first Original for it is but abateable by the Misnosiner and is not abated and there is a slaw in the rejoynder for he ought to have traversed that he was not an Esquire And 2ly the 26th of March is after the Original sued forth and it is incertain as to the time when he was a Knight Plowd 27. by Morgan 7. H 7.5 a And the Warrants of Attorney are good though they be in Latin and if they wâ—re in English they would be erroneous and the non-entry of them is not material for the constant practice is not to enter the Warrant of Attorney before the Issue Trin. 8 Iac. Morley and Morley in this Court here is not the entry oâ— the Warrant it self but only an entry that he is Attorny by Warrant and so he prayed the affirmance of the judgment Roll chief Iustice If one bring a Writ of 1000 l. and it be abated and brings another Writ for the same debt Dammages can you encrease the dammages accrued between the first and the second Writ It cannot be for the second is but the reviving of the first Writ and not a new Writ but here are divers points considerable and fit to be spoken unto A ne exeat regnum is a Writ usually sued forth although that originally it was only used in Cases of State businesses therefore the forbearance to sue it forth is a good consideration Writ The Court advised to take a new Plea to try the matter Postea Mich. 1653. AN Endictment was preferred against one for reading the Book of Common prayer and if was moved to be quashed upon this exception An Endictment quashed viz. that the Endictment did not say that he read it publiquely but only said that he read it voluntarily And upon this it was quashed Mich. 1653. Banc. sup ONe Captain Streeter committed by the Councel of State Prisoner appeared upon a Habeas Corpus and by the Parliament for publishing seditious Pamphlets to the â—ate house at Westminster was brought into Court by a Habeas Corpus and the return read and prayed to be filed by the Prisoner which was granted whereupon he prayed he might have a Copy of it which was granted then he prayed he might be bayled but was denied and he was turned over to the Marshal of this Court and not remanded because upon filing of the Retorn the Court was seised of the Record and the Prisoner and he was ordered to be brought again Friday following to be heard what he could say against the Retorn Farmer and Lawrence Mich. 1653. Banc. sup FArmer let a Chamber and a Closet within it to Lawrence from such a time to hold as long as she should please Arrest of judgement in Action of Debt for rent paying therefore yearly as much as it should be reasonably worth and this was by paroll afterwards Farmer brought an Action for the rent of this Chamber and Closet and declares upon this Lease and avers that she held the said Chamber and Closet from such a time to such a time and that for that time it was reasonably worth so much and for not paying that rent he brought his Action and obtains a Verdict against the Defendant It was moved in arrest of judgement that it is alleged in the Declaration that she held the Chamber and Closet from such a time to such a time but it doth not aver that she held it as long as she pleased as the agreement was Roll chief Iustice The old Books are if I let Land to one for as long as he pleaseth Lease at will it shall be intended as long as both parties please and here shall be intended that the Term was determined except you had shewed that you would have held the Chamber and Closet longer and if the time be determined you ought to pay presently as much as it is reasonably worth if no time be expressed for the payment thereof Averment and the averment ought to be on the Defendants side viz to allege that the Plaintiff did not suffer her to hold the Chamber and Closet so long as she pleased Iudgement was given for the Plaintiff nisi Mich. 1653. Banc. sup MEmorandum Colonel Barksteed Lieutenant of the Tower of London Why a Prisoner was not b ought upon a Habeas
a fault in the substance of it And 2ly their bar is not good and therefore it matters not though the replication be not good for it is impertinent to set forth an Original but he ought to have pleaded generally that he was not guilty within 6 years before the Original brought but here he hath impertinently set forth the time of bringing the Original and this answers not the Statute and the matter alleged destroys his own plea and here can be no good Issue joyned without departure from his plea to wit from his bar and this is not to be suffered in pleading and here is neither certainty nor congruity in the parts of the pleading for the beginning of the term is uncertainly alleged 2ly He shews not what day of the Term he issued forth his original but only says generally in Michaelmas Term which in Cole and Sâ—bsâ—ys case in this Court was lately adjudged naught Hales on the other side said that the bar is good and that the replication is insufficient because the Defendant is tyed up by an issue and is not suffered to rejoyn and it is insufficient in substance for he hath not made a proper conclusion for he ought to have concluded et hoc est paratus est verificare and as it is it is impertinent and the Plaintif cannot pass over to rejoyn as Latch supposeth and this case is not like the case of the traverse cited by him where he may pass over it being but in matter of form but it is not so here for the Travers avers the plea and concludes not the party as here he is concluded and can do no other thing but demur or joyn in the Issue tendred And the bar also is good and sufficient notwithstanding the time of the Originals issuing forth be alleged although it was in his election to have shewed the time or not to have shewed it and his shewing it makes not the plea worse but more certain and although it be not the truth of the Case as he hath alleged it I doubt whether it should be a departure for the Plaintif to reply to a new Original assigned and it may be there were two Originals and the Defendant relyes upon the last Original and if the other Original be pleaded he may reply to it afterwards 2ly Admitting he cannot depart this will doe no hurt for the plea is not worse for him although it be better for the other 3ly It is not incertain to say that it issued forth in Michaelmas Term for all the Term is but one day in Law and it is said when the Term began namely the 23 of October and if it be not so certainly expressed as it ought to be yet by the replication this advantage is lost and it is not like to Cole and Sibseys case cited on the other side for there was a special Demurrer but here the Demurrer is general and there it was of the parties own setting forth Latch If the Assignment of the Original be at his peril if he set it not forth right it is ill and it is not well here assigned for there is neither time nor place alleged when it issued forth Roll chief Iustice I conceive the replication is not good for the party is bound up that he cannot rejoyn Replâ—cation but must either demur or joyn in Issue with you and I have not heard of passing over in the Case as may be done in the Case of a Traverse which concludes not the party and here you aver not your plea as you ought and the other ought to be left at liberty to re joyn if he please Averment which he cannot do here but it is doubtfull whether the Plea in Bar be good or not because there is no time certain alleged of issuing out the Original for it is said generally in Michaelmas Term whereas an Original bears Teste at a day certain and may issue forth out of the Term Original Teste and it is not like a judicial writ and it is questionable whether this be matter of form only or of substance and me séems it is matter of substance to be averred The Court would advise At another day the Case was again put and spoken to by Wadham Windham who upon putting the Case urged that the Defendant here sets forth another original not set forth by the Plaintif and this is not brought within the time limited by the Statute and upon this the Plaintif rejoyns and he cited Coles and Sibsyes Case and insisted that the Defendants plea in bar is not good in the matter of substance for he shews no time nor place when he first sued forth his Original and he ought to shew when he took it forth that the Court may judge whether it was done in due time or no 7 H. 7. f. 150. as the Statute requires and not to put the Court to make enquiry when it issued forth and although it be but surplusage to shew it yet now having taken upon him to shew the time he ought to shew it precisely Dyer 365. Lakes Case Hill 10 Iac. Westbyâ— and Rookes Case in this Court the mis-pleading of a Statute is not good though the party was not bound to plead it and so it is here And the replication doth us no harm for there is no matter in it that makes against us for the Court ought to judge upon the whole Record and consider who made the first fault and that hath the Defendant done in his bar and that in matter of substance and he cited Cardinal Pools Case and Hob. rep Baspooles Case and prayed judgement for the Plaintiff Wild on the other side said that the bar is only vitious in form and so it hurts not and if so then the other party hath lost his advantage of it by the Statute for he hath not demurred upon us but we have demurred upon him to wit upon his replication Roll chief Iustice I am of opinion that the setting forth of the Original by the Defendant and concluding that he is not guilty within six years from that time is not good but now that is waived by the replication and is made matter of form as it is in the Case of a new assignment and the Common bar is now out of doors It had been good to have shewn the precise day of taking forth the Original but it is not absolutely necessary to do it and this is not like the mis-pleading of a Statute which must be precisely pleaded and is matter of substance but this is matter of form only and besides this matter is here waived and nothing is shewed by the Plaintiff which can bar him of his Action Demurrer nor hath the Defendant pleaded any thing to bar him And by the replication you have hindred the Defendant to plead to you for you have concluded ad patriam and stopped him from proceeding further in pleading but the principal matter is that you
have waived the matter pleaded in bar of which you might have taken advantage and I conceive that he who demurs upon matter of form ought to shew the special matter wherefore he demurs Advantage but if it be waived by the other by his replying he shall not afterwards take advantage for the not shewing it notwithstanding the Statute and divers opinions upon it for the Statute enjoyneth to set forth the matter of form pleaded insufficiently Nil capiat per billam nisi Hill 1653. in the Upper Bench. MAster Attorney General moved the Court after issue joyned in an Endictment preferred against Mrs. Levingston To stay a Tryal upon an Endictment and the Tryal being to be the next day that the Tryal might be stayed by rule of Court because the Endictment is erroneous in many things and the Tryal thereupon will be fruitlesse for no judgement can be had upon it and we may prefer a new Endictment and one fault in it is that the Bill was found by a Grand Iury whereof some of them were outlawed when they found it Wild on the other side prayed the Tryal might go on because the Issue is joyned and the Iury retorned and many Witnesses viz. a hundred at least are brought to Town some a great way off and are kept here at a great charge Roll chief Iustice Waiver Demurrer The Attorney may waive the Issue if he please though it be joyned or he may demur if he will therefore let him make what entry he thinks good upon the Roll Entry Rule for we will make no rule in it Stephenson and Steward Hill 1654. Upper Bench. STevenson brought an Action of Debt against Steward for rent Exception to a Plea of Privilege of Parliament the Defendant pleaded in abatement of the Writ that he was in regard of monies which he had lent to the Parliament protected by their special order from all arrests The Plaintiff replyed that this order was afterward repealed by another general order of Parliament Carew urged that the Defendants plea was not now good because the Parliament being dissolved their orders are of no force and prayed judgement for the Plaintiff Roll chief Iustice If the plea was good when it was pleaded your Action must abate Abatement Peremptory and you must begin again for the plea is but in abatement and not peremptory to the party and therefore let the Writ abate Hill 1653. Upper Bench. By Roll chief Iustice Where may be a new Original If an Action of Battery by Original be against two and one comes in upon the Exigent there may be a new Original brought against the other with a Simul cum and those who are waived may be Witnesses in the Cause and this is usual practice but those who are declared against with a Simul cum cannot be Witnesses Witness Greenling and Bawdit Hill 1653. Upper Bench. GReenling brought an Action upon the Case against Bawdit Arrest of judgement in an Action upon an Assumpsit and declared that the Defendant in consideration that the Plaintiff would mary such a Woman did assume and promise that upon his mariage with her he would pay the Plaintiff 50 l. and would also give unto him yearly one firkin of Egges and a flitch of Bacon during the life of the Plaintiff and upon a Nihil dicit the Plaintiff obtains a Iudgement and upon a Writ of Enquiry of dammages executed great dammages were found for the Plaintiff It was moved in arrest of Iudgement 1. That it doth not appear for what breach of promise the Action is brought whether for the not paying the 50 l. or not paying the Egges and Bacon 2ly It is not averred in what year the Defendant was to begin to pay the Egges and Bacon Intendment To this Râ—ll chief Iustice answered that it shall be intended to begin within the year next after the mariage shall take effect 3ly It was excepted against that it doth not appear for how many years the Egges and Bacon were unpaid and the promise was made anno 1647. and the Writ of Enquiry was executed anno 1653. But Roll chief Iustice over-ruled the Exceptions and to the last answered the Record is huc usque and so it is certain enough Therefore let the Plaintiff have his Iudgement nisi c. Hill 1654. Upper Bench. IN the Case of one Banister where the Action was an Action of Debt brought against an Executor Roll chief Iustice said What is an affirmative plea and not negative That riens inter mannes pleaded by an Executor is an affirmative plea in substance though it sound something in the negative for it is in effect the same with plene administravit and such plea must be averred and he put this difference Averment viz. where an Issue is joyned up upon a negative plea without any replication it is not necessary to aver the plea but if there be a replication it must be averned Hayward and Ducket Hill 1653. Banc. sup Pasch 1653. rot 196. HAyward brought an Action upon the Case against Ducket that was Executor to another and declares Arrest of Iudgement in an action upon a promise that whereas the Testator did owe unto the Plaintif such a sum of money which the Plaintif did intend to sue the Defendant for the Defendant did assume and promise to the Plaintif that if he would forbear to sue him for the money and would suffer him to go into the Country he would pay the money and for breach of this promise he brought his Action and obtains a verdict It was moved in Arrest of Iudgement that there appears no consideration in the Declaration to ground the promise upon whereby to make the Defendant lyable to pay the money which he promised to pay for it doth not appear that he is Executor and Rosyer and Langdales case Anno 1650. in this Court was cited To this it was answered by the Councel on the other side That a good consideration doth appear well enough for when he saith that he was to forbear to sue him as Executor it shall be intended that he was Executor at the time when he should so forbear to sue him and the promise is so laid Plow 128. Roll chief Iustice To say that I will forbear to sue one as Executor is not an affirmance that he is Executor and there was such a case as this ruled in the Exchequer and it is no more nay not so much as if he had said that he would not sue him at all Iudgement pro Defendente nisi Hill 1653. Banc. sup BY Roll chief Iustice In an Action upon the case vi et armis Where one needs not conclude contra pacem publicam It is not necessary to conclude contra pacem publicam but in an Action of Trespass quare vi et armis the conclusion must be contra pacem publicam Hill 1653. Upper Bench. BY Roll chief Iustice
Owner may devise and the Custom is that every Owner in fee-simple may devise and the Custom shall go to Land and holds to reversions as well as to lands in possession At another day it was argued that the devise was not good for the word Owners cannot extend to all sorts of Owners for it extends not to an Infant Owner of such Houses for he cannot devise therefore the words must receive a limited construction and therefore I conceive the word Owner extends only to an absolute Tenant in fee-simple and not to a reversioner in fee for a Custom must as hath been said be taken strictly 12 E. 4. f. 3.21 E. 4. f. 24. 2ly In true construction this Owner in fee in remainder shall not be said Owner but the Tenant in tayl is Owner and so here is not Owner ex vi termini 3ly Here is but a possibility of fee-simple in him which is not grantable or devisable 2 Ed. 4.1 and the Statute of Westm 2d helps not to the Custom for that Statute is within memory of man 26 H. 8. f. 4.22 Ass Pl. 78. And upon the very finding of the verdict it cannot be good for by the Verdict no title is found for the Defendant Latch on the other side held that here is a good devise warranted by the Custom for here is an Estate within the very letter of the Custom for he is true Owner of the House in fee-simple although it be not in present possession for he hath fee-simple in it and hath it to his own benefit in such an Estate as it is and the word Owner is a general word and comprehendeth all manner of Ownerships 2ly It is within the reason of the Custom for it intends the same benefit to Owners in reversion as it doth to Owners in possession and is indifferent unto all Estates And although a Custom shall be taken strictly yet it shall also be taken reasonably as having respect to the benefit of the party and there can be no reason alleged to be against this devise 26 H. 8.4 A remainder in fee shall go according to the Custom whether by the Custom Lands in fee shall go the Custom shall go to all things issuing out of the Land and so to all Estates in the Land Dyer 148. and here is more than a possibility devised 4 5 Phil. Mar. Benloes It is ruled that a fee-simple expectant shall go to the youngest Son by the Custom where the Custom was that the youngest Son should have the Lands of which his Ancestor dyed seised and as to the Verdict here is a good title found for the Defendant Roll chief Iustice The verdict is imperfect for the Ejectment is against Baron and Feme and the Feme is found Ejector by the verdict and nothing is found concerning the Baron Venire de novo therefore you must have a Venire de novo if you will not agree to amend the Verdict according to the notes if the notes will warrant it Afterwards a Venire de novo was awarded by consent Pendarvis and Saint Aubin Hill 1654. Banc. sup Trin. 1653. rot 723. IN an Action of Accompt the Defendant pleads ne unques receptor Plea before Auditors upon this an Issue was joyned and an imperfect verdict found and thereupon a Venire de novo was awarded and the Iury found for the Plaintiff and the Defendant adjudged to accompt before Auditors The Defendant pleads before the Anditors that he had delivered over part of the monies To this the Plaintiff demurs and shews for canse that this Plea is contrary to the Verdict for that is that he should accompt for all and here he would accompt but for part only Windham for the Plaintiff argued that this cannot be a good plea before Auditors in discharge of the accompt but it goes in bar of the accompt Dyer 196. 41 E. 3. f. 31.22 H. 6.25 and in Boynton and Cheeks Case lately in this Court such a Plea was adjudged not good And it would be michievous if it should be otherwise in reserving such matter to be tryed again Twisden on the other side said it is a good plea before Auditors to say that he received the monies to deliver over and there are four opinions in the Books how this matter should be pleaded â—o E. 3. Br. Acc. 8â— hold â— that this Plea is pleadable before Auditors and this plea is in discharge of the Accompt and therefore pleadable before Auditors 12 H. 4.18 and in Baynton and Cheeks Case cited the judgement was not given upon this point Roll thief Iustice The Books generally are that this plea is in bar of the Accompt Plea Bar. but here your plea of delivery over hath made it a plea in bar and it would be mischievous to plead it now for this would cause one and the same issue to be twice tryed and then there may be contrary Verdicts which would be inconvenient Therefore let judgement be for the Plaintiff Stavely and Ulithorp Hill 1653. Banc. sup AN Action of Debt was brought upon the Statute of 2 Ed. 6. for not setting forth of Tithes and a Verdict was given for the Plaintiff Arrest of Iudgement in an action for not setting forth of Tâ—hs It was moved in arrest of judgement that the Statute was mis-recited because it was not said the Parliament in which it was made was held by prorogation as in truth it was But Latch answered that it is not mis-recited for it is true that the Parliament was held upon the 9th of November Recital as we have alleged though we have not expressed it to be held by prorogation and we conceive it is not necessary to express it to be so held for the Presidents are contrary as in Cooks Entry tit Prohibition Roll chief Iustice The Parliament is not said to be begun and held but only to be held and therefore it is well enough Iudgement was given for the Plantiff nisi Postea Dorman and Snag Hill 1653. Banc. sup AN Action upon the Case was brought upon two promises Arrest of judgement in an Action upon two promises viz. to pay so much mony upon a certain day and 2ly to save the Plaintiff harmless c. Vpon issue joyned and a verdict found for the Plaintiff it was moved in arrest of judgement that the Plaintiff did not shew how the Defendant hath not saved the Plaintiff harmless but only sayes generally that he did not save him harmless and so he may bring another Action for the same thing The Court was then of opinion that it was not good to say generally that the Defendant did not save him harmless but he ought to shew in what particular as if I assume and promise to one to give him all the mony in my Purse I must shew how much mony was in it and aver that I gave it him At another day Sergeant Clark moved for judgement whom Latch seconded and said here is a good breach
will remand him to be tryed where he is Trin. 1654. Banc. sup THe Court was moved for one brought out of Wales by a Habeas Corpus That one might be bayled Quo warranteâ— that he may be bayled because they have no Gaol-delivery there Roll chief Iustice It were good a Quo warranto were brought against them for not using their privileges duly Let the Prisoner be bound to answer his offence at the next Assises The Protector and Baxter Trin. 1654. Banc. sup ONe Baxter endicted upon suspition of Robbery was out lawed upon the Endictment Error to reverse an Outlawry in felony and prayed to be allowed and taken upon the Outlawry and committed to Finsbury Gaol afterwards he brings a Writ of Error to reverse the Outlawry and obtains a Habeas Corpus to be brought hither to prosecute his Writ of Error and upon the retorn thereof was brought to the Bar and prayes to have his Writ of Error allowed and to have Counsel assigned him and that he may have a Copy of the Record and that he may be bayled and he took two exceptions to the Outlawry 1. That he was in Prison at the time he was out-lawed and knew nothing of the Outlawry 2ly That the charge against him is too general and there is no body prosecutes against him and prayed he may go with his Keeper to his Counsell Roll chief Iustice You cannot be bailed nor have a Copy of the Record Bail Copy but you shall have Counsell assigned you but you must be remanded Iles and VVindsor Trin. 1654. Banc. sup Trin. 1653. rot 360. A Writ of Error was brought to reverse a Iudgement given by default in the Common-Pleas in an Action of Trover and Conversion Error to reverse a judgement in Trover given by default and the error assigned was that the Plaintiff had declared for two pieces of Cloath and did not express whether they were linnen or wollen cloath But the exception was over-ruled and the judgement affirmed nisi Bunniworth and Gibbs Trin. 1654. Banc. sup Mich. 1653. rot 50. A Writ of Error was brought to reverse a Iudgement given in the Court at Peterborough in an Action upon the Case upon a promise Error to reverse a judgement in an action upon an Assumpsit wherein the Plaintiff declared that in consideration that the Defendant had received 5 l. which was due by the Plaintiff unto the Defendant upon an accompt made up betwixt them at such a time the Defendant did assume and promise to the Plaintiff to pay unto him a certain sum of mony when the Defendant shall set up an Apothecaries shop in Peterborough if the Plaintiff be then living there The error assigned was that here is no consideration laid in the Declaration to ground the promise upon for the consideration is the receipt of five pounds which was his own mony for it was due to him upon the accompt and this can be no good consideration But Roll chief Iustice answered to this that a little consideration will serve to ground a promise upon Consideration and it may be the Plaintiff would not have acknowledged so much as 5 l. to have been due upon the Accompt if the Defendant would not have made this promise A second exception was taken that the Plaintiff doth not aver Averment that when the Defendant set up the Apothecaries shop in Peterborough that he was living there Roll chief Iustice This is a good exception for the intent of the Plaintiff appears to be that he would not have another of his own Trade in the Town to lessen his trading Therefore let the Iudgement be reversed nisi Lord and Michell Trin. 1654. Banc. sup Trin. 1653. rot 358. A Writ of Error was brought to reverse a judgement given upon a Nihil dicit in the Common-pleas in an Action upon the Case upon an Assumpsit Error to reverse a judgement by a Nihil dicit in an action upon an Assumpsit the consideration was laid that if the Plaintiff would forbear to sue the Defendant that then the Defendant would pay such a sum of mony Two errors were assigned to reverse the judgement 1. That whereas the consideration is laid generally that if the Plaintiff should forbear to sue the Defendant he would pay the mony the Plaintiff hath not averred this consideration but saith in facto that he did forbear to sue till Iune which cannot be the same consideration 2ly The Writ of Enquiry is said to be enquired of by twelve lawfull men in the County whereas it should be of the County for the Iurors for ought appears may be of another County and then it cannot be well Averment Roll chief Iustice This is but an inquest of Office but you have not averred the consideration as you ought to have done and this is error Therefore let the Indgement be reversed nisi c. Phillips and Phillips Trin. 1654. Banc. sup A Writ of Error was brought to reverse a judgement given in the Court at Newport in an Action upon the Case for these words Error to reverse a judgement in an action for words Thou art a whoreson Bankrupt-Rogue and they were laid to be spoken of a Farmer The errors assigned were 1. That it doth not appear by the Declaration that the Plaintiff gets his living by buying and selling And 2ly It appears not that the words were spoken of him in relation to his profession And upon these Exceptions the judgement was reversed Bancks and Prat. Trin. 1654 Banc. sup Hill 1653. rot 603. A Writ of Error was brought to reverse a judgement given in the Common-pleas for an Attorny in an Action upon the Case Error to reverse a judgement in an action upon Promise grounded upon a promise that the Defendant would pay him such fees as should grow due to him as an Attorny in prosecuting such a Sute for him in the Common pleas and for prosecuting another sute for him in Chancery as his Sollicitor The Errors assigned were 1. That he doth not shew particularly how he hath laid out the mony but only expresseth it generallly that he had expended and there was due unto him such a sum of mony 2ly The Promise is that the Defendant would pay him the fees so long as he should continue to be his Attorny and to prosecute for him and it doth not appear that he continued to be his Attorny and to prosecute for him during the sute and to make the first exception good Took and Sir Tho. Walsinghams Case lately adjudged was urged But as to that exception Roll chief Iustice answered it is not necessary to shew particularly how the mony became due and was expended for this would make the Declaration too long and though the Plaintiff as hath been objected should bring another Action for the same thing yet you may plead this recovery in bar generally against him Plea in bat Intendment And as to the second exception
Common Councel man of London and here the party hath an imployment for his life Imployment for life though he have not a freehold in it and there is a setled profit accruing to him and so prayed he might be restored Wild on the other side held that a Mandamus lies not in this case and said this case differs from the cases put on the other side for the Schoolmaster Durante beneplacito though he have a freehold yet it is but durante beneplacito and he is in truth no more than a servant and in all the cases put on the other side the publique is more concerned than in this case 11 H. 4. f. 47. A Schoolmaster hath no freehold as Skreen there held and it is not like the case of a Churchwarden Churchwarden which is an Office that the common Law takes notice of 12 H 7. and a Town Clark is a publique officer of the Town and Boremans case is very like to this and the office of a high Steward is a publique office and so is a Steward of a Leet and one may put away a servant retained for his life and so may the Schoolmaster here be discharged and this School is a private School and is not a Corporation as Westminster School is Glyn chief Iustice by the same rule that the Schoolmaster should be restored may ever Schollar claim to be restored and I conceive the Visitors may remove the Master of the School if he observe not the rules for government of the School and it seems as reasonable for them to turn out the Masters as to receive them into the place But let the whole matter be referred to the Justices of the Assize one of whom viz. my Lord chief Iustice St. Iohn Referrence is the Chancellor of the Vniversity of Cambridge where the School is Fowke and Prescott Trin. 1655. Banc. sup FOwke brought an Action upon the case upon a promise against Prescott The Case was this Arrest of judgement in an Action upon the case upon a promise Prescott being a Coachman did by careless driving of his Coach break a pipe of wine of Fowkes which lay in the street whereby much of the wine ran out and was lost Fowke apprehends the Coachman who thereupon promiseth that if he would for bear to sue him for the wine that he would pay him as much as he had damnified him and for breach of this promise he brings his Action and obtains a verdict against the Defendant It was moved in Arrest of judgement 1. That the Plaintif had not averred how much the wine was worth that was spilt and so he could not tell what satisfaction to make the Plaintif for it Averment for he knows not the value Request 2ly Here doth not appear to be any request made for the satisfaction by the Plaintif Serjeant Twisden answered Here doth appear to be an apparent damage and he hath not satisfied the damage we have laid in our Declaration nor hath the Defendant pleaded any tender of damages at all Tender of damages Implication Notice and the Iury have found the damages 2ly We say that we have forborn to sue him and this implies no satisfaction made at the time of the Action brought Alleyne on the other side The Plaintifs Declaration doth not intitle him to the Action and the finding of the Iury cannot make this good Glyn chief Iustice Both parties did see the wine and the Defendant is bound to take notice of the damage and the Plaintif is not bound to give him notice Iudgement and the Iury hath made it certain Therefore let the Plaintif have his judgement Dod and Herbert Trin. 1655. Banc. sup DOd brought an Action of Debt upon an Obligation to stand to an award Demurrer in debt upon an Obligation to stand to an Award Satisfaction Charges Submission In Curia prolata against Herbert the Defendant pleaded nil debet and upon a Demurrer these exceptions were taken to the Award why it should not be good 1. That here is 100 l. awarded to be paid to the party and it doth not appear that it is to be paid unto him in satisfaction of the wrong done unto him 2ly Here is 8 l. ordered to be paid for charges and expences which thing is not submitted unto by the parties and so no Award ought to be made for them 3ly The Action here is meerly grounded upon the Award and therefore the award ought to have been brought into Court which is not done for ought appears here Wild on the other side answered that upon the penning of the whole Award it appears that the 100 l. is to be payd for the wrong done to the party by the speaking of the scandalous words and the Award is set forth to be made de et super praemissis De super praemissis which makes it good as my Lord chief Iustice Rolls opinion was upon the first opening of the Record and so was Burbidges case 16 Car. And as is the second Exception he held that the 8 l. awarded to be payed for charges was within the submission for the Arbitators have power to allow charges And as to the last Exception he said it is not necessary to produce the Award in Court Glyn chief Iustice It is to be intended that the 100 l. is to be paid for the wrong done Intendment and the 8 l for costs is as well within the submission as the other and the Award is recited and it is said to be made de et super praemissis The only question is whether the Award ought to be produced in Court and I conceive it is not necessary to do it although he must plead the Award in writing for the Action is not brought upon the Award but upon the submission for the Award is but the inducement and the Court hath nothing to do with the Award Submission Inducement but to see whether it be in writing or no For a Deed that must I confess be produced in Court that the Court may judge whether it bind the party or not and you your selves have here set forth the Award in your pleading But speak to it at another day at which time the case being only put Glyn chief Iustice said if an Action of debt be brought upon an Obligation Where a thing must be produced the Obligation ought to be produced and in all other cases where things cannot be demanded but by Deed otherwise is it if they may be demanded either by Deed or without Deed but here is no Deed in the case for an Arbitrement under seal is no Deed the arbitrement may be made without a Deed Deed. Arbitrement Writing Iudgement nisi therefore it is not necessary to be produced in Court for it is but a writing under hand and seal Iudicium nisi pro quereute Maynell and Mackallye Trin. 1655. Banc. sup MAynell brought an Action upon
Regis whereas as it was objected it ought to have been ideo consideratum est per candem Curiam or per Curiam praedictam And at the first the Court seemed to encline Inferiour Courts that this was a material exception for these reasons viz. because inferior Courts ought not to shew things only by implication but they ought to shew them expresly and because surplusages in such Courts are ill And lastly because inferiour Courts ought to kéep themselves strictly to their antient forms and not to vary from them yet afterward judgement was a firmed except better matter should be shewn nota Masterman 21 Car. Banc. Reg. AN action of Debt was brought in an inferiour Court Error upon a judgement in an action of Deb◠upon an Obligation upon an Obligation with a Condition for the payment of a certain sum of money at a certain time therein expressed but no place was limited in the condition for the payment thereof Iudgement was given for the Plaintiff The Defendant brings a writ of Error in this Court to reverse this Iudgement and assigns for Error That because there appears no place of payment for the money in the Condition of the Bond so that by that it cannot appear whether the cause of action lieth within the jurisdiction of the Court where the action was brought or not therefore it should have béen made appear by some part of the Record that the money was to be paid within the Iurisdiction of the Court Error which is not here done and therefore the Iudgement erronious The Court held this for error and ordered that the Iudgement should be reversed if cause were not shewn to the contrary before the end of the term Knights Case 21 Car. Banc. Reg. A Lease for years was made of certain houses in York Error upon a Judgement given in an action of Debt for reat reserving a yearly rent payable in London and for the rent behind an action of Debt was brought in the City of York and judgement thereupon given for the Plaintif The Defendant brings a writ of Error to reverse this judgement and assigns two Errors 1. That the issue upon which the judgement was given was not tryable within the jurisdiction of the Court where the judgement was given for the issue was upon the payment of rent which was payable at London and not at York and so payment or not payment ought to be tryed at London and not at York The second exception was to the Venire Veane which was de vicineto Civitatis generally and names not any Parish in particular whence the jury should come And to prove this to be a good exception the Book of ◠H. 5. was urged but the Court denyed that Book to be Law and cited Gavel and Gippoes case 10 Jac. adjudged to the contrary that de vicineto Civitatis generally without naming a Parish in the City is good But upon the first exception the Court advised VVatson against Norbury 21 Car. Banc. reg Mich. 20 Car. rot 156. VVAtson brought an Action upon the case against Norbury Action upon the case for procuring a Commission of Bankrupt against him by virtue whereof he broke open his Shop and took away his goods and Shop-books whereby he was so discreited that he lost his trade to his damage c. To this the Defendant pleads that the Plaintiff did heretofore bring his Action of trespass for the breaking open of his Shop and for the taking away of his goods and had in that Action recovered damages against him and demands if he shall not be thereby barred in this Action And that he should be barred the Defendants Councell alleged that a recovery in one personal Action is a bar in all personal Actions touching the same thing and that here the Action of trespass formerly brought and the Action of the case now brought were personal Actions and that they were both brought for the same thing and therefore the Plaintiff ought to be barred It was also urged that an Action of the case lies not in this case for that to ground an Action upon the case there must appear to be malice in the party that did the fact and prejudice to the party to whom the fact is done but there appears no malice here for what was done is said to be done by virtue of a Commission of Bankrupt which shall be intended a lawfull authority to warrant the fact and not grounded upon malice so that malice and prejudice do not both appear but only damage and that alone will not support this Action for neither for damage alone without malice nor for malice without damage will an Action upon the case lie But to this it was answered to which the Court enelined That this Action upon the case was not brought for the same cause that the Action of trespass was formerly brought for that was only for the breaking open of the Shop and taking away his goods and the damages he received thereby but this Action is brought for the damage he sustained by the losse of his credit and hindrance in his trade thereby caused by the Defendants taking out a Commission of Bankrupt against him and by colour thereof breaking open his Shop and taking away his goods and so disparaging him in his reputation whereby he lost his trade and though the breaking open of his Shop and the taking away his goods be named in this Action as it was in the former Action of trespass Inducement yet it is but by way of Inducement to this Action upon his case and not to recover damages for that wrong Actions severall and here being two severall wrongs done to the Plaintiff which do not one depend upon another the Plaintiff must bring two severall Actions for them and not joyn them in one Action because the damages must be several which are to be recovered Ioynt Actions but if they had depended one upon another he might have joyned them in one Action and recovered joynt dammages for both Ioynt damages and besides these two Actions differ in their nature one from the other and the judgements given in them are several for the Iudgement in an Action of Trespass vi et Armis as the first Action was is Capiatur because there is thereupon a fine due to the King but the Iudgement in an Action upon the case is ideo in misericordia and so though the Plaintiff have Iudgement here in his Action upon the case it cannot be said he hath had Iudgement already for that must beintended at least a Iudgement of the same nature which cannot be in this case And to that which is objected that if the Plaintiff should recover damages in this Action he should recover damages twice for one and the same thing which is against Law it is answered that it is not for the same thing but cleerly for another and if he should not have this Action he were without
remedy for the damage he suffred in the losse of his Credit and the damage in his Trade for in the former Action he recovered no damages for that for the Iury never took that into their consideration for they had no power to take any damages into their consideration which happened after the Trespass done for which the Action was brought but only for the breaking open of the Shop and the taking away of his Goods and although he might at the first have brought his Action upon the case as he hath now done yet he was not commpellable thereto but had his Election to bring either an Action upon his case or an Action of Trespass as should most make for his advantage Election of Actions for this Election of Action belongs to every subject as his birth right and he is not to be hindred from it Adjournatur Remington and Kingerby Mich. 18 Car. rot 72. REmington grants a rent out of certain Lands to Fawne with a clause of distress Error upon a Judgement in an Annuity in the Common pleaâ— and a nomine poenae in the deed for the non payment thereof according to the time lymited the rent is behind after the time lymited by the nomine poenae Fawne brings a writ of Annuity in the Common Pleas for the Arrerages of the Annuity and for the moneys due upon the nomine poenae and hath Iudgement Remington brings his writ of Error in this Court to reverse this Iudgement and Assignes for Error that the writ of Annuity did not lie for the nomine poenae though it did for the rent for though it was in the Power and Election of Fawne to charge either the land out of which the rent was to issue with the rent behind by distress and so to make it a rent charge or else to bring his writ of Annuity for it against Remington and so to charge his person yet he had no such Power for the nomine poenae because it was in the nature of a rent and was necessarily to issue out of the Land Nomiâ—e yoe 1 ae and not to be charged upon the Person and it was further alleged that a nomine poenae was an uncertain thing and comes not within the Statute of 21 H. 8. touching Avowries as a rent charge doth which is certain Another exception was that it appears notin the Record that Fawne did make a good demand of this nomine poenae upon the Land out of which the rent was issuing as he ought to have done before he could bring an Action for it for though there do appear to be a demand yet if it appear not to be a legal demand it is Null and the party shall take no benefit by it Adjourned Nuls and Cheney 21 Car. B. R. AN Action of the case was brought for these words Arrest of Iudgement in in Action upon the case I do accuse you to be a Witch and require you to be searched and a verdict was given for the Plaintiff the Defendant moves in Arrest of Iudgement that the words are not actionable because it is not averred that the party accused had done any hurt to Cattell or otherwise or hath had any Communication wit the Devill And so the Court held because the words spoken did not bring the Party of whom they were spoken within the Statute of 10 Jac concerning Witch-Craft Wingfield and Sherwood VVIngfield brings an Action of Covenant against Sherwood his Lessee for yeers Error upon a Iudgement in an Action of Covenant and declares that he had Covenanted by indenture that hee would not cut down more tymber growing upon the lands demised than sufficient for needful and necessary reparations of the houses and buildings let unto him and for breach Assigns that he had cut down tymber to the value of ten pounds and had converted them to his proper use and upon this hath a Verdict and a Iudgement against him Sherwood brings a writ of Error in this Court to reverse this Iudgment and Assigns for Error that there was variance between the Covenant expressed in the lease and the Covenant set forth in the declaration whereupon the breach was assigned and so the Iudgement was not given upon a breach of the Covenant expressed in the lease viz. That he should not cut down more tymber than was necessary for reparations for by this breach the Plaintiff supposeth that the Defendant had Covenanted not to cut down tymber to employ to his own use which is not the Covenant expressed in the lease but another And though the Defendant had cut down tymber and converted it to his own use Covenant this was not a breach of the Covenant expressed in the Indenture except it be averred that he cut down more than was necessary for reparations and converted it to his own use and for this Error the Iudgement was reversed Whitwell and Short Trin. 21. Carl. rot 227. WHitwell brought an Action of Trespass for assaulting beating Arrest of Iudgement in an Action of Trespasse and wounding him against fowr several persons three of them plead not guilty and are found guilty and the fourth pleads not guilty to part and iustifies for the rest viz. The wounding and is found guilty as to the wounding only yet the verdict was fond generally for the Plaintiff and intire damages assessed and Iudgement given and a writ of Error was brought and the Error assigned was that the damages ought not to be entire against all because that the fourth person was only found guilty of part of the trespass to wit the wounding and therefore as to him the damages ought to have been severed in relation only to the wounding and not as it is for so damages should be given twice for the same thing Several damages First against the three and then against the fourth which the Court granted and reversed the Iudgement VVard and Coggin Pasc 22 Car. rot 257. VVArd brings an Action of debt in the Common pleas against Coggin Error upon an action of Debt and declares that the Defendant in consideration that he the Plaintiff at the request of the Defendant had sold certain wares to I. S. did assume and promise to him the Plantiff that he would pay such a sum of money for them and for non payment accordingly he brings his Action and hath a Verdict and Iudgement The Defendant brings his writ of Error in this Court to reverse this Iudgement and Assigns for Error That an Action of debt lyes not in this case because the debt which the Defendant promised to pay and for which the Action is brought was raised and became a duty before the promise made for the payment of it and so an Action of debt cannot be grounded for it on the promise And the words in the declaration do sound meerly upon a promise upon which a good consideration for an Action of the case may be grounded Case but not to bring an
the tryal good without it and thereupon day was given to shew cause why the Iudgement should not be aâ—firmed Pasch 23 Car. the Iudgement was affirmed Andrews Case Hill 22 Car. Banc. Reg. A Recognizance was acknowledged at Serjeants Iune in Fleetstreet Where a Scire facias upon a recognisance shall be brought and delivered and enrolled at Westminster The Court held that it was at the election of the Recognisee to bring his Scire facias either in London where the Recognizance was acknowledged or in Midlesex where it was delivered and enrolled But adjourned Afterwards viz. Pasc 23 Car. the Court held that the Scire facias ought to be where the recognizance is taken and not where it is recorded for there it begins to be a Record but this being in the Common Pleas it was good both ways and thereupon the party had his judgement Rooke and Knight 22 Car. Mich. Mich. 22 Car. rot 381. A Iudgement given in the Court at Dym Church Demurrer to a Scire facias upon a judgement removed out of the Cinqne Ports by Certiorari in the Kings Bench. a limb of one of the Cinque Ports was removed by a certiorari into the Kings Bench and thereupon issued a Scire facias for the Defendant to shew cause why the Plaintiff should not have execution upon the judgement to this the Defendant appears and demurs and takes these exceptions 1. That it is not expressed where Dim Church is 2ly In the retorn of the alias certiorari it is said sicut prius and not sicut alias 3ly the Sheriff in the reforn is not namned Knight and Baronet neither doth he name himself by his name of Baptism and Surname But the Court did over-rule all these exceptions and gave judgement for the Plaintif AN action of the Case was brought for these words Action upon the Case for words Thou hast stoll'n my wood and the Court inclined the words were actionable but not if he had said thou hast stoll'n my Trees and it was said that a precipe will lie of a wood for it shall be intended of woody ground adjourned Pracipe Helliar and Grace his VVife Pasch 23 Car. Banc. Reg. AN action upon the Case was brought by Helliar and his wife Action upon the Case upon an Assumpsit upon a promise made unto them during the Coverture and it was moved a verdict being given for the Plaintifs in arrest of judgment that the Action ought to have been brought in the name of the Husband only and not by the husband and wife and a case to prove it was cited out of Dyer Dyer 91. and upon this exception the judgement was arrested till the other should shew cause to the contrary And in this case it was said by the Court that if an Obligation be made to baron and feme that it is the better opinion Joynt action that the baron may bring an action upon this obligation in his own name only and not name his wife or else he may at his election bring the action in the name of himself and his wife joyntly Betsworth and Betsworth Pasch 8 Maii 23 Car. Banc. Reg. It was moved for a Prohibition to the Prerogative Court upon a surmise that the party did endeavour to barstardise one that was legitimate But the other party answered that the surmise was not true and urged that the sute in the Praerogative Court was only Prâ—hibition to the Praerogative Court whether Letters of administration were by them well granted or no and not concerning Bastardy as the surmise sets forth and therefore desires the Prohibition may not be granted and for confirmation thereof the case was put which was this Betsworth had a wife called Bridget who died after he takes another wife called also Bridget and dies intestate Bridget the second wife takes Letters of administration of the goods and chatels of her husband deceased the son of Betsworth sues in the Praerogative Court to repeal these Letters of Administration upon pretence that Bridget the first wife of Betsworth was yet living In this case the Court delivered these positions following Jurisdiction 1. That one ought not to sue in the Ecclesiastical Court to Bastard an issue Ordinary but at the Common Law 2. Where the Ordinary hath granted Letters of Administration to one that ought to have them they ought not to be repealed by them 3. Where a sute is in the Ecclesiastical Court for lands and goods Prohibition a Prohibition may be granted as to the lands and they may procéed there notwithstanding as to the goods 4. That in this Case at the Bar neither Bastardy of the issue nor mariage is in question as is surmised but only the validity of the Letters of Administration Incidents and that the other things are but as incident to the matter in question 5. That wife or not wife is triable at the Common Law but whether lawfully maried or not Tryal is tryable in the Spiritual Court 6. Where a thing is tryable in the Spiritual Court and there is also a matter incident to it which is tryable at the Common Law there a Prohibition shall not be granted Prohibition Evidence 7. That a thing concluded in the Ecclesiastical Court touching lands cannot be given in evidence in a tryal at Law for Land 8. If the Common law differ from the Civil Law touching the legality or non legality of a thing if they will proceed according to their Law a Prohibition lies because the Common Law is to be preferred The rule of Court was Prohibition That a Prohibition should be granted and that the other should demur upon it and so it might be debated whether a Prohibition would lie or not and to stay in the Spiritual Court in the mean time Pasch 23 Car. Banc. Reg. ONe brought an Action upon the Case against I. S. for preferring a bill of Endictment against him Arrest of judgement in an action upon the case for stealing of a Mare and that the grand Iury found an ignoramus whereby he was discharged the Plaintiff obtains a Verdict against the Defendant The Defendant takes these exceptions to the declaration in Arrest of Iudgement 1. That it doth not appear thereby that the Party who preferred the bill of Endictment gave any evidence to the grand Iury touching the bill 2ly It appears not that the Plaintiff was bound over to answer the Felony and consequently was not molested â—y it and so he can have no Action But the Court stayed the Iudgement to another day upon the exceptions taken Case and sayed that an Action upon the Case lies for procuring one to be Endicted Endictment although the party himself do it not and that one may exhibit a bill of Endictment to a grand Iury without Oath grand Jury and they may notwithstanding find the bill and although it be exhibited upon Oath they are not bound to
find it if they see cause to the contrary and that in the case at the barr the Action might be as well grounded upon the scandal which grew to the party who was Endicted as upon the trouble which might have befallen him by reason of the preferring the bill against him Hellena Pasc 23 Car. B. r. AN Action upon the Case was brought for these words Arrest of Iudgement in an Action upon the Case Hellena is a great Witch and a Verdict found for the Plaintiff It was moved to stay Iudgement because the words were not Actionable for they did not shew that the Plaintiff had bewitched any thing or done any thing that brought her within the compass of the Statute 1. Jac. against Witch-Craft Iudgement was hereupon stayed VVilliamson against Henley Pasc 23 Car. Banc. Reg. Trin. 21 Car. rot 362. AN Action of Debt was brought upon an obligation Arrest of Iudgement in Debt upon an obligation the condition was that if the Defendant did sell the tithes in Ransom more that he should pay the Plaintiff such a sum of money but if he sold them not that then he should deliver an obligation to the Plaintiff for the payment of a certain sum of money therein expressed at a certain day therein limited and for non performance of the condition is the Acion brought The Plaintiff obtains a Verdict the Defendant moves in Arrest of Iudgement Time that he ought to have convenient time for doing of the things expressed in the condition and that it appears not by the Record that he had convenient time and so there is no breach of the condition But the Court held that the time between the date of the obligation and the bringing of the Action was a conveninent time and that there being a second thing to be performed in case the former were not done that therefore that former thing ought to be done in some reasonable time elce the party would be too much prejudiced by staying to have the second thing performed and therefore ruled that Iudgement should be entred without better matter should be shewed Savages Case Pasc 23 Car. B. R. SAvage was Endicted for forging and publishing of Letters of credence to gather money Error upon a Judgement upon an Endictment and was convicted and Iudgement given against him upon his own confession and 100 l. fine set upon him et quod capiatur Exceptions were taken to this Iudgement 1. That it did not appear wher he received any money by virtue of these counterfeit Letters nor at what time But the Court answered that the substance of the offence for which he was Endicted was Endictment the forging and publishing of the Letters and not the collecting of the money for though he had not collected a penny yet the Endictment was good A second exception was that the Endictment did not say quod Counterfecit falso But the Court held that the word Counterfecit necessarily implyed in it the word falso and so not material whether falso were expressed or omitted 3ly It was objected that the party was committed before he was convicted But to this the Court answered Conviction that he was committed upon his own confession which is a conviction in Law and the Iudgement held good and affirmed Needler and Guest Pasc 23 Car. Banc. Reg. Entred Trin 1649. rot NEedler brings an Action of Covenant against Guest Artest of Iudgement in a breach of Covenant upon Articles amongst which one was to allow such a sum of money to an under Clerk in the six Clerks Office by the sheet for every quire of paper he should writein copying and engrossing of bills answers c. as was expressed in the said Articles and upon this Needler obtains a verdict against Guest In Arrest of Iudgement divers exceptions were taken and over-ruled but one was insisted upon which was this that there was more found in the breach of the Covenant assigned then was contained in the Covenant it self for it was found that he had not payed for 72 sheets which was 5 quire and a half and so damages were given for more than ought to be Breach for the Covenant was to pay so much the quire and mentions not any half Damages and for this the Iudgement was stayed for the Court said that the Law would not supply a casus omissus to bring it within the Covenant to ground a breach thereupon Supply what ever the intent of the partyes was that were parties to the Articles VVhitley and Fawsett Pasc 23 Car. Banc. reg VVHitley brings an Action of Trover Action of Proven for distraining selling his Cattel and Conversion against Fawsett for taking his Cattel by way of distress and selling them by virtue of a warrant of Commissioners of Sewers for not paying of a tax set by them towards the reparation of Sea walls the Defendant pleads all the speciall matter by way of justification the Plaintiff demurrs to this Plea and upon the demurrer takes these exceptions to it 1. To the setting forth of the Commission in that he shews not that three of the Commissioners were of the quorum The 2d exception was that in his Plea he had not sâ—t forth the Authority of the Commissioners To that the Court answered it was not necessary 3ly That the Plea was but argumentative which makes it naught 4ly It appears that there are 800. Acres of Land which are in the hands of the King Tax which are not taxed as by law they ought and so the tax is unjust because by the not taxing of them a greater burden was laid upon the rest of the Land than of right ought to be and this the Court held a good exception and said that the Kings Lands are taxable by the Statute 5ly The Statute is not pleaded as it ought to be 6ly It doth not expresse that Whitley in whose occupation the Lands are that are taxed is the Assignee to Lynsee the owner of the Lands but he may be a meer stranger and so not taxable nor his beasts to be sold 7ly It is not set forth that he shewed his warrant before he distrained as he ought to do Distresse In this case the Court first said that one may distrain and sell the Cattel of the owner of the Land taxed or his Assignee for non payment thereof Sale but doubted whether a strangers Cattel might be distrained and sold Roll Iustice took these Exceptions to the Plea 1. Plea That the Plea did not set forth the limits of the Commission as it ought to do and was therefore ill 2ly He said the Plea ought to have shewed that three of the Commissioners were of the quorum 3ly That it did not appear by the Plea that the Lands taxed where the distresse was made are within the Level to be taxed by the Commissioners 4ly The Tax is of the Land of such an one and his Assignes and this is
the goods were found by the Baron and Feme and were converted ad usum suum whereas it ought to be in the plural number to wit ad usum eorum or ad usum of Pew and his wife for as it was it supposed the Conversion to be made only by the Husband which is contrary to the Action it self which is brought against both Upon this Iudgement was stayed till the other should move Long and Bennet 23 Car. Banc. Reg. LOng brings an Action upon the Case against Bennet and declares that he would not suffer him to take unum Acrum ligni which he had sold to him in such a place Arrest of Iudgement in an Action upon the Case After a Verdict for the Plaintiff it was moved in Arrest of Iudgement that the Declaration ought to have been unum Acrum bosci and not ligni for that was uncertain The Court said they would Advise of the exception Declaration because it was in an Action of the Case The same Term Iudgement was given because Damages only were to be recovered and the words used were but inducements to describe the thing for which Damages only were demanded yet it might have been more properly expressed Barker and Martyn Pasc 23 Car. Banc. Reg. THe Plaintiff brings an Action of Trespasse Arrest of Iudgement in an Actâ—on of Trespass and declares against the Defendant for breaking his house and taking away quinque Instrumenta ferrea Anglice Fetters and a verdict was for the Plaintiff It was moved in Arrest of Iudgement that the word Instrumentum is not a word that signifies Fetters but that it is so general a word that it may expresse any other thing as well and that the Anglice joyned with it to interpret what it means cannot help it because there is a proper Latin word which might and ought to have been used to expresse Fetters by Rolle Iustice said that by the Statute all pleadings ought to be in Latine Pleadings and every particular thing therein ought to be expressed by a Latin word if there be a proper Latin word for it as here there is and therefore the proper Latin word being not used but another which cannot signifie the thing the Anglice doth no good but part of the Declaration shall be judged to be in English and so it cannot be good And judgement thereupon was stayed till the other sould move Curtice and Columbine Pasc 23. Car. Banc. Reg. Mich. 22 Car. rot 433. CUrtice brings an Action upon the Case against Columbine upon an Assumpsit by paroll to find meat drink lodging Error to reverse a Iudgement in an Action upon an Assumpsiâ—â— c. for the Plaintiff and to teach him the trade of a mercer This agreemet was afterwards by consent of both partyes put into writing Vpon the tryal the Plaintiff obteins a Verdict upon the paroll agreement and hath Iudgement thereupon The Defendant brings his Writ of Error in this Court and Assignes for Error that there was no Assumpsit declared upon or proved sufficient to warrant the Verdict and Iudgement because that by reducing the Agreement to writing the paroll agreement became ipso facto void and so no Action could be brought upon it but it ought to have been brought upon the Agreement expressed in the deed and the issue ought to have been joyned upon that and not upon the verball Agreement which is void The rule of Court was to shew cause why Iudgement should not be reversed Barker and Martin Pasc 23 Car. B. R. BArker brings an Action of Trespass for an Assault and Battery against Martin simul cum Arrest of Iudgement in Trespasse c. and hath a Verdict against him It was moved in Arrest of Iudgement that the Action ought to have been brought particularly against the other Trespassors together with the Defendant and not against the Defendant in particular with a general simul cum against the rest which is uncertain and signifies nothing against the rest and the rather because the Action is commenced by bill and not by original although it could not be good though it were by original but it was said by Rolle Iustice that it may be the Plaintiff could not Arrest the other Trespassors Trespasse and that he will do it when he can and that he may well proceed against them at divers times as he can take them but that whensoever he shall have had satisfaction for the Trespass done him from any one of them he cannot proceed against any of the rest and it was ruled that Iudgement should be entred Cook and Allen. Pasc 23 Car. Banc. Reg. A Iudgement given in an inferior Court was reversed in this Court Iudgement reversed because the Venire was ill inferior Court Common pleas because the Venire was Venire facias c. and did not shew from what place the Venire should bee which by Rolle Iustice ought to have been expressed at large it being in an inferior Court and not with an c. although the use of the Common pleas be to make the Venire short with an c. The King and Holland Entred 16 Car. Argued Pasc 23 Car. Banc. Reg. THe case was in effect this An argument upon a special Veâ—dict A Copyhold was surrendred to I. S. in trust that Holland an Alien should take the profits thereof to his own use and benefit upon this an inquisition was taken for the King and this matter found whereupon the lands were seised into the Kings hands and upon a tryall concerning these lands a special Verdict was found comprising the aforesaid matter The case was argued against the Kings Title by Mountague of the Middle Temple and for the Kings title by Hales of Lincolnes Inn. The substance of Mountagues Argument was 1. To consider the nature of the trust 2. The nature of the land out of which the trust was raised and for the first he held because it was a trust for an Alien to take the profits of the land and in that the Alien had no estate in the land therefore the King could not have it as he might have had the land if the Alien had had any Estate in it and he said that this trust was a thing only in Action and lies in privity and not to be seised upon by another and said a Villein was a parallel Person in law to an Alien in respect of purchasing of lands and had a Copihold been surrendred thus in trust for a Villein the Lord should not have seised it and this is but a trust not Executed which is in the nature of a use at the Common law and not as it is now by the Statute besides this trust is raised out of Copyhold lands and therefore the King cannot seise the lands which the Alien hath not for if he should the Lord of whom the land is held would be preiudiced and he cited Beverlyes case 4. rep 126 and a case in 23 Eliz
here for the first words Iudgement and not for the second the Damages being severall but if the Damages had been intire there if Iudgement could not be given for both the words it cannot be given at all Bacon Iustice much to the same purpose as Rolle and said that the first words shall be meant that he added words of his own invention without any instruction of the party for oftentimes dubious words shall be taken in the worse sense upon consideration of the Circumstances that accompany them and he was also of opinion that the second words were actionable and are as scandalous as the former Iudgement was given for the former words and for the latter the Court would advise Barrett 23 Car. Banc. Reg. AN Action of Trespasse was brought for digging in his land Arrest of Iudgement in Trespass and carrying away a certain number of loads of earth and a Verdict was for the Plaintiff It was moved in arrest of Iudgement that the declaration was incertain for the Trespasse is laid to be done in land lying in divers Towns 2ly It is not shewed what kind of soil the earth was that was caryed away but both the exceptions were over-ruled and Iudgement ruled to be entred nisi causa c. Conisby and Fairfax Pasc 23 Car. Banc. Reg. A Iudgement was given in an Action of Trespass in the Court of Owse-bridge in York Error to reverse a Iudgement in Trespasse a writ of Error was brought in this court to reverse the Iudgement many exceptions not material at all were taken and many others that were helped by the Verdict but the three chief Exceptions were 1. The Damages were declared to be ad valentiam quingint librar instead of quingent for there is no such word as quingint to express any number for if it be meant to express Fifty it ought to be quinquagint but quingent signifies 500. 2ly The Venire was directed Balivis de Wapentagio whereas there is no such word for the word to express a Wapentake is Wapentachium so that it ought to be de Wapentachio and not Wapentagio 3ly The Venire is Venire Venire facias de baliva and sayes not what Baliwick which is uncertain and it cannot be known whither it extends and upon these Exceptions the Iudgement was ruled to be reversed except better matter shewn Saturday following Pasc 23 Car. Banc Reg. VPon a motion for quashing an Endictmet against a Baker For quashing an Endictment for using the Trade of a Baker these Exceptions were taken 1. He is indicted for using facultatem pistoris and doth not say panis humani 2ly It is for baking panis tritici Anglice Houshold bread whereas it signifies only bread made of Wheat and not Houshold bread for that may be made of other corn 3ly For baking panis Assis without a dash for panis Assisae Vpon these Exceptions it was quashed Pasc 23 Car. Banc. Reg. VPon a motion for quashing an Endictment against one for apprehending I S. unprisoning him For quashing an Endictment for aresting and imprisoning one these Exceptions were taken to it 1. It sayes that he apprehended imprisoned the party without a Warrant whereas it ought to have been absque aliqua rationabili causa for in some Cases a man may be apprehended and imprisoned without a Warrant but in no Case without a reasonable cause 2ly The Endictment is that he did not shew him the cause why he apprehended and imprisoned the party and that he is not bound to do and yet the party may be lawfully imprisoned 3ly The Endictment doth not say that he apprehended and imprisoned the party falsely as it ought to have done Vpon these Exceptions it was quashed Drake and VVhitacre 23 Car. Banc. Reg. Hil. 22 Car. Rot. 1318. AN Action upon the Case was brought Arest of Iudgment in an Action upon the Case for words and a Verdict found for the Plaintiff for these words Margaret Whitacre viz. meaning the Plaintiff did steal my Wood and I will send her to Bridewell It was moved in arrest of Iudgement that the words were not actionable for doubtfull words as these are ought to be taken in mitiori sensu and Wood here may be understood standing Wood and not Wood cut down and so it could not be Theft but a Trespass on the other side it was answered that Wood shall here be understood Wood cut down and not standing and being coupled with the words Margaret VVhitacre is a Thief which are scandalous words they shall be interpreted equally scandalous Ayre Higgins his Case was cited to prove it where it was adjudged that these words He is a thief and hath stollen my Corn shall be understood of Corn cut down and not standing and therefore are actionable Roll Justice said it was a strong Case that the action will lye Case Notwithstanding Iudgement was arested till the other should move This was again moved Trin. 23 Car. and the Court held that the first words alone were actionable but whether coupled with the other they were actionable the Court was divided viz. Bacon a gain the Action and Rolls for it Pasc 23 Car. Banc. Reg IN an Action of Trover and Conversion and a verdict for the Plaintiff Arest of Iudgment in Trover and Conversion it was moved in arrest of Iudgement that the Plaintiff did declare for Books for Stockings found converted and doth not shew what Books viz. whether English or Latine or what other Language nor whether Law books Divinity Physick or of any other Subject and because he doth not declare what sort of Stockings they were whether wollen wosted or silk c. But the Court over-ruled the Exceptions and said that Books were not things of divers species Species be they of what Language or subject they may be of neither the Stockings for were they silk or wollen or wosted they were but Stockings and so ruled Iudgement to be entred The King and Place Pasc 23 car B. R. PLace was endicted before the Lord Finch and Iustice Crawley for speaking words against the Queen Mother of France Error upon a Iudgement given upon an Endictment for words the words were these The Queen Mother is the Whore of Babylon she is a Whore and hath had a Bastard upon this Endictment jugement was given against the Defendant A Writ of Error was brought in this Court to reverse the iudgement The Errors assigned were 1. That the proceedings upon this Endictment were too speedy and so illegal for the whole proceedings upon it were acted in one day 2ly The Endictment lyes not for it is founded upon the Statute of Scandalum magnatum Scandalum magnatum and here can be no such great Scandal for that is for words spoken of a Peer of the Realm and the Queen Mother is not so 3ly There is no Capiatur upon the Roll as it ought to have been the Defendant being not in Prison at
the time of the iudgement given 4ly The iudgement is that the Defendant shall be imprisoned for a year without bail or mainprise whereas he ought to be delivered upon paying his Fine Adjourned to the next Term. Pasc 23 Car. Banc. Reg. AN action of Debt was brought upon a Bill penall Arest of Judgment in Debt upon a Bill penal and a verdict for the Plaintiff It was moved in arrest of iudgement That the Plaintiff hath not shewed that the Defendant did not pay the mony at the day limited in the Bill but only says non solvit c. 2ly He declares that the Defendant was bound to pay such a sum legalis monetae and doth not say Angliae but the Court over-ruled both the exceptions and ruled the Plaintiff to take his Iudgement Pasc 23 Car. Banc. Reg. A Motion was made by one Town against another neighbour bordering Town For a Writ against a vill to make them keep their Fences Scire facias Plea for a Writ to make them repair their fences And it was granted but it was said by the Court that the Writ so granted should be but in the nature of a Scire facias refornable in this Court to enable them to plead to it and not to compell them to do it without being admitted to plead Notwithstanding the opinion of Noy Attorny General and he old Record of Ed. the 2ds time produced heretofore by him to strengthen it Nota. Trin. 23 Car. Banc. Reg. A Motion was made upon an Affidavit to stay Process out of this Court against the party for a Deodand To stay Pracess for a Deodand because he had payed three pound for it to the Kings use to Sub-Deputy Almoner upon a composition made with him Bacon Iustice Certificate Notice procure the General Deputy Almoner to acknowledge it and procure his Certificate to the Court for of the Sub-Deputy we can take no notice Trin. 23 Car. Banc. Reg. THe Court was moved to quash a Endictment of forcible entry upon these Exceptions To quash an Endictment of forcible Entry 1. There is no addition of the County where the party dwells that made the forcible entry as there ought to be by the Statute of 1. H. 5. Addition and without this addition no Process can be awarded to out-law the party for it must be directed unto the County where he dwells 2ly There is no County expressed where the vill lies in which the force was committed Vpon these Exceptions it was quashed Trin. 23 Car. Banc Reg AN Endictment was preferred 5 years before To discharge one endicted for Recusancy against Count Arundel for recusancy It was now moved that he would plead Conformity but in regard that he must plead it by Certificate under the hand and seal of the Bishop of the Dioces and Bishops were now taken away by the Parliament Certificate Conformity he was disabled to do it but had a Certificate under the hands and seals of the Minister and Church-wardens of the Parish where he dwelt upon Oath testifying his Conformity and thereupon it was prayed he might be discharged But the Court answered that there is another remedy given by the Statute which he might have followed though the former was taken away to wit to conform at the Sessions and it was his own fault that he hath lost that advantage by removing the Endictment hither by Certiorari and therefore we will not at present deliver him but will consider of the Statute and stay the Process in the mean time Trin. 23 Car. Banc. Reg. IT was moved to the Court that there was an Execution duly issued out of this Court and returnable here this Term Against an Injunction out of the Chancery to stay execution and that since it issued forth the Defendant had obtained an Injunction out of the Chancery to stop the execution The Court answered that all the Iudges were agreed that an Injunction out of the Chancery lyes not after a Iudgement be the Bill put in before or after the Iudgment it matters not but if after a Iudgement there be a Writ of Error brought to reverse it and pending the Writ an Injunction be obtained Q. whether it lye or no by the Reporter Injunction Bruer and Sowthwell Trin. 23 Carol. BRuer brought an action upon the Case upon an Assumpsit to pay so much mony for Currance sold unto him discomputando for four Months Arest of Judgment in an action upon the Case The Defendant demurs to the Declaration for the incertainty of it because it is discomputando for four Months and expresseth not for how much he should discount and so there can be no certain dammages given and upon this it was stayed till the other party move Whiteacre and Hillwell Trin. 23 Car. Banc. Reg. Hill 22 Car. rot 1318. VPon a Verdict had for the Plaintiff in an action upon the Case for these words Magaret Whitacre is a thief hath stollen my Wood Action on the Case for words and I will send her to Bridewell It was again by the Plaintiff moved for Iudgement because the words were actionable and shall be meant of Wood cut down not standing and it was said though the first words should in themselves be doubtfull yet are they made certain by the words that are coupled with them But Bacon Iustice denied it and said that Bridewell is a Prison for Correction and not the Sheriffs Prison for felons and that one may be sent thither although the offence be not felony and that the cutting of Wood standing is to be punished with whipping and so the party may be sent to Bridewell for that offence and said that the last words are explanatory of the former that he meant not the fact charged upon the Plaintiff to be felony but had not the later words been added to explain his meaning the former alone are clearly actionable But Roll Iustice held the words as they are laid to be actionable and cited Hyfords and Stamps Case Trin. 11 Iac. Doleman and Youngs case 5 Car. and Smith and Wards Case 21 Iac. and said that in the Case at Bar that the latter words were cumulative and not interpretative and that where there are expresse precedent words to make one a Thief there ought to be violent words subsequent to give them another interpretation and not words which may be taken by implication as they are in this Case Adjourned VVatson and VVatson Trin. 23. Car. Banc. Reg. Hill 22 Car. rot 1687. AN Action of Debt was brought upon an Obligation with condition to stand to an award Action of Debt for not performing an award The Defendant pleads no Arbitrement made The Plaintiff replyes and sets forth the award and Assigns a breach the Defendant demurs and for cause shews that the award is uncertain and not finall for it is that one of the parties shall pay so much money to the other as shall be due in conscience
Praecipe lyes not of it The rule of Court was that the Plaintiff should take a special Iudgement as he desired and release the Croft and the damages to all and that he should have his Costes Lere and Cholwitch Pasc 23 Car. Banc. Reg. LEre brings an Action of Debt upon an Obligation against Cholwitch Arrest of Iudgement in Debt upon an Obligation the condition of the Obligation was that a certain sum of money should be paid to the Plaintiff 40 dayes after he should return with his Ship to such a Port of discharge for fraight for his Ship and for non payment accordingly is the Action brought The Plaintiff hath a Verdict The Defendant moves in Arrest of Iudgement and takes these exceptions 1. That the averment of the breach of the condition of the Obligation is not certain and therfore not good Fraight for it doth not aver that the Ship was discharged of his Goods or that the 40 dayes were expired before the money demanded To this Rolle Justice said it is not usual to pay fraight for a Ship till the owners have their goods delivered but here the condition of the bond is to pay the moneys within 40 dayes after his return to such a port of discharge Intendment and it is not intended that the money shall not be paid till the 40. dayes be past The 2d Exception was that he doth not say where the Ship was unloaden To this Rolle answered that it shall be intended that it was unladen at the port where she arrived if the contrary be not shewn on the other side 3ly There is no notice expressed to be given of the unloading of the Ship Notice and this being a collaterall thing and penall to the Defendant he ought to have notice of it To this Rolle said that one party might as well take notice of this as the other for the thing to be done is not to be done either by the Plaintiff or Defendant and the issue is found against the Defendant therefore let him shew cause Tuesday next why Iudgement should not be given for the Plaintiff Afterwards the same Term Iudgement was given accordingly Segar and Dyer Trin. 23 Car. Banc. Reg. Mich. 22 Car. rot 125. or 135 DYer brings an Action of Trover and Conversion Error to reverse a Iudgment in Trover and Conversion in the Court at Bristow against Segar and hath a Verdict and a Iudgement against him Segar brings his Writ of Error in this Court to reverse this Iudgement and Assignes these Errors 1. To the Declaration which was of the Trover and Conversion de uno pollo Anglice a Colt whereas Pullus signifies not a Colt but properly a young Hen and hence we had the word pullet but in a general acception of the word it may signifie also other young things but then it must have an adjective of the species which it is to signifie or a substantive of the gentive case joined with it as pullus equinus pullus Asininus or Asini and the like and ought not to be used alone to signifie a colt with an Anglice joyned to it as it is here The 2d Exception was that it is not well set forth how the Court was held where the Iudgement was given for he doth not shew that the Court was held either by letters patents or by praescription but saith ad curiam tentam tali die coram A. D. I. H. c. a tempore cujus contrarium memoria hominum non existit c. prescription which cannot be a good praescription for a Court cannot be held at such a day and before such particular persons if it be not expressed to be secundum consuetudinem The rule of Court was to shew cause Tuesday following why the judgement should not be reversed Trin. 23 Car. Banc. Reg. THe Plaintiff declares that the Defendant had covenanted with him Demurrer upon a Declaration in an Action of Covenant to pay him so much money as he should expend for repairing and victualling a Ship for him and averrs that he had expended 300 l. in repairing and victualling it and that he gave the Defendant notice of it at such a day and for non payment he brings his Action of breach of Covenant The Defendant protestando that the Plaintiff had not laid out 300 l. in maner and form as he had declared demurs to the Declaration upon these exceptions 1. That that the Declaration was not good because he had not averred a speciall breach of Covenant But to this Roll Iustice said that this exception had been often over-ruled 2ly It was objected that in this case the Plaintiff should have brought an Action of Debt Election of Action and not of Covenant But to this also Roll answered that it was well enough for it is in the election of the Plaintiff to bring either an Action of Debt or an Action of Covenant and that it hath been heretofore questioned whether an Action of Debt did lye in this case but it was never doubted but that an Action of Covenant did very well lie Debt A third exception was that there is no request alleged to pay the mony and without request he was not bound to pay it Demand To this Roll answered that the Plaintiffs Action was not an Action of Debt where a Demand is necessary but it is an Action of Covenant and there it is not needfull to allege a Demand Boomer and Payte Trin. 23 Car. Banc. reg PAyte the Administrator of the Goods and Chattels of I. S. brings an action of Debt against Boomer Demurrer upon a Declaration in Debt and declares that the Intestate brought an action of Debt in the Common Pleas against three and had a Iudgement against them and a Capias ad satisfaciendum against two of them was directed to Boomer the Defendant being then Sheriff of the Countywhere the parties lived to execute and that accordingly he did execute it by taking the parties and afterwards did suffer them to escape and for this the Plaintiff brings his Action Debt To this Declaration the Plaintiff demurs But Roll Iustice said he saw no cause for it for an Administrator may have an action of Debt against a Sheriff upon an Escape suffered of a Prisoner of the Intestate in his life time and ordered the Defendant to shew cause Tuesday next why the Plaintiff should not have Iudgement The City of London and Estwick Trin. 23 Car. Banc. Reg. STephen Estwick prays a Writ of Restitution to be restored to the place of a Common-Councel-man of the City of London For restitution to the place of a Common-Councel-man of London being put out of it by the Lord Maior and Court of Aldermen and also committed to Newgate the Writ is granted and directed to the Lord Maior and Court of Aldermen who thereupon make a logn retorn setting forth at large the causes why he was deprived and committed and why he
E. s Brook Covenant 4. was cited Next the Plea doth not say that the Armed men with Prince Rupert were Aliens or Enemies of the King Allen. Enemy but only that Prince Rupert was so But to this exception Roll Iustice answered that they shall be so intended if they be his Army with which he invaded the Land Plea Another exception was taken that the Plea gives no answer at all for one Quarters rent demanded which incurred after the time that he was kept out by Prince Rupert The Councel for the Defendant in defence of the Plea urged that it was not necessary to aver that the Army with Prince Rupert were Aliens and cited 3 H. 6. 61. and the Councel took a difference between an Enemy and a Rebel Rebel and though in the case of a Rebellion this might not be a good Plea yet in case of an Invasion he conceived it was Remedy because he could have no remedy against the party and resembled this case to cases of like nature cited out of 9 E. 3. 7. 40 E. 3 6. 33 H. 6. 1. VVaste and said that where waste is done in the Lands let for years by one again whom the Lessee can have no remedy over there the Lessée for years is not chargeable for the waste except he be bound by a particular Covenant to keep the Lands let without waste Also by the Law of Reason it seems the Defendant in our case ought not to be charged with the rent because he could not enjoy that that was let to him and it was no fault of his own that he could not Civil law Canon Moral Innundation and the Civil-law and Canon-law and Moral Authors do confirm this and Dyer 56. 11. Ass 13. were cited and it was said there is no difference between an innundation and this invasion and had the Lands been surrounded by water the Lessee should not have been chargeable for the rent during that time neither as I conceive shall he be here Next consider the nature of the reservation 10. Rep. 1 28. Rent Payment A rent is not to be paid untill it may be intended that the Lessee might have received the profit of the thing for which the rent is to be paid 27 E. 3.81 8 H. 4.6 Fitzh Execution 146.9 E. 3.16 neither by the Martial law is the Defendant chargeable Martial Law Law of Nature Covenant and that Law is the Law of Nature as well as of Nations But Roll Iustice answered that the Plea was not good for he hath not pleaded that the Army were Aliens and unknown as he ought to have done and the pleading that it was hostilis exercitus makes not the Plea more certain than before and if the Tenant for years covenant to pay rent though the Lands let him be surrounded with water yet he is chargeable with the rent much more here Therefore let the Plaintiff take his Iudgement Fremling and Clutherbook Mich. 23 Car. Banc. Reg. FRemling and his Wise Arest of Judgment in Trover and Conversion Executrix of A. B. bring an Action of Trover and Conversion against Clutherbook for Goods of the Testators found and converted by the Defendant and obtained a verdict against him The Defendant moved in arrest of Iudgement and took these Exceptions 1. That the Declaration was of a joynt possession of Goods of the Husband and Wife and dammages are given to the Husband and Wife whereas the Goods properly belong to the Wife only as an Executrix and not to the Husband and Wife Possession 2ly It doth not set forth how the Feme came to the possession of the Goods But to this Roll Iustice answered that the possession of the Wife Dammages as Executrix was also the possession of her Husband and that the dammages recovered shall be to the estate of the Testatour and so may concern them both And for the second exception this being a possessary Action only it is not necessary to shew how the possession of the Goods was gained Stayed till the other should move Parmiter and Cressy Mich. 23 Car. Banc. Reg. PArmiter brings an Action upon the case upon an Assumpsit and declares Arest of Iudgment in an Indebitatus Astumpsit that the Defendant in consideration that the Plaintiff had sold and delivered unto him such a number of pieces of Stuffs the Defenant did assume and promise to the Plaintiff to deliver unto him the value of the Stuffs in such Pipes of Wine lying in Bradgates Cellar in London as the Plaintiff should make choise of and for not performing the same brings this Action The Plaintiff obtains a verdict The Defendant moves in arrest of Iudgement and shews these causes 1. That the Plaintiff doth not aver in his Declaration that he made any election of the Pipes of Wine Averment and before such election the Defendant was not bound to deliver them nay it was impossible for him to perform the agreement before the election 2ly Election The Plaintiff doth not set forth that he made his election where the Wine was which he ought to have done because of the insupportableness of the commodity to be brought to him to make his choice The Court held that here ought to be a special request made to deliver the Wines Request special because it is upon a Contract and an Action of Debt lies not for them and thereupon arrested the Iudgement till the Plaintiff should move The same Term Iudgement was given against the Plaintiff Quod nil capiat per billam Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of the Case against the Defendant Arest of Iudgment in an action upon the Case forwords Words Tryal False Doctria for speaking these words against him being a Minister He is an Adulterer Whoremaster Drunkard a common Swearer and a Preacher of false Doctrine The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actionable because the matter expressed by them is merely Ecclesiastical and not tryable at the Common law and it was said that a man may preach false Doctrine and not be punished for it if he be not a beneficed man and it doth not appear here Heresie that the Plaintiff had any living and besides it is not said he was a Preacher of heretical Doctrine but of false Doctrine which words are more ambiguous The judgement was stayed till the Plaintiff should move Mack and Cubitt Mich. 23 Car. Banc. Reg. Pasc 23 Car. rot Q. MAck brought an Action upon the case against Cubitt for speaking these words of him Arest of Iudgment in an action upon the Case for words You are a branded Rogue and have held up your hand at the Bar VVords and deserve to be hanged and shall be hanged The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement that the words were not actionable for they are all but words
an Executor Devastavit for the Devastavit of the first Executor Roll Iustice the Ecclesiastical-law ought to make a provision against these mischiefs Prohibition otherwise a Prohibition lyes against them Appointed to be argued a gain Tuesday sevennight VVatson and VVatson Mich. 23 Car. Banc. Reg. Hiill 22 Car. rot 1687. VVAtson brought an Action of Debt upon an Obligation against Watson Arest of Judgment in Debt upon an Obligation to stand to an award Award the Condition was to stand to the Award of two Arbitrators or of the Vmpire The Defendant pleads nullum Arbitrium The Plaintiff replies that the Vmpire made the Award The Defendant demurs and shews for cause that the Award was not good for it was incertain and not final on both parts for one party was awarded to pay so much mony to the other as in conscience should be due and no man can say what that is The Court said the Award was insensible And Bacon Iustice said it was a Vicars Award Puliston of Councel with the Plaintiff cited these Books to prove the Award good 8 Ed. 4. f. 2.20 Ed. 4. f. 1. 4.18 Ed. 4. f. 2. Pasc 4 Iac. Gosnolls case 9 H. 7. and said these cases proved that where an incertainty in an Award may be made certain there the Award is good and so it is in our Case 2ly He said that the Award here is good notwithstanding it be to pay so much mony as shall be due in Conscience Conscience for it shall be meant as is due in Law for Law and Conscience are one and the same But Roll Iustice said that the Award doth not make a finall determination of the matters in controversy betwéen the parties and so it is no Award And Bacon Iustice cited 5 Rep. That an Arbitriment ought to be certain and final and this Award wants both these properties and therefore is not good Fitchet against Wolston Mich. 23 Car. FItchet had a Iudgement against I. S. in an action of Debt Demurrer to a Plea upon a Scire facias against an Administrator Scire facias with a Fieri facias I. S. dies intestate Wolston takes out Letters of Administration of the Goods and Chattels of I. S. Fitchet takes out a Scire facias with a Fieri facias to enquire what Goods of I. S. are in the hands of the Administrator and to take them in execution upon the Iudgement Wolston the Defendant appears to the Scire facias and pleads fully administred The Plaintiff demurs to this Plea and shews for cause that in this Case he should have pleaded non Devastavit and not fully administred 2ly The plea answers not the Writ The Court answered all such processes are only to make the Executors or Administrators to answer Fully administred and therefore fully administred is a good Plea for it is a good answer and it would be dangerous to plead other waies And Roll Iustice said that this being a Scire facias with a Fieri facias according to the new manner of making the Writ it would be dangerous to plead non Devastavit and it hath been adjudged a good plea Non Devastavit to say fully administred in a Scire facias against an Executor but it is better to plead nulla bona devenerunt ad manus Nulla bona with which he could satisfie the Debt since the Scire facias brought But this being a new case it is fit to be argued Therefore let us have Books Finer and Jeffry Mich. 23 Car. Banc. Reg. FIner brings an Action upon the Case against Jeffry and declares Arrest of Iudgement in an Assumpsit that the Defendant did assume and promise unto him that if he would forbear to sue one who had assaulted him and beaten him that he the Defendant would pay the Plaintiff as much mony as he was damnified by the Assault and Battery The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement and shewed for cause Consideration 1. That it doth not appear by the Declaration that the Plaintiff had any intention to sue the party for the Assault and Battery and so the Assumpsit in consideration that he would forbear to sue for it is no consideration 2ly He doth not set forth that he gave any notice to the Defendant Notice what dammage◠he had sustained by the Battery But the Court held that the Plaintiff néeded not to allege that he had an intent to sue the party for that the Defendant took notice of when the Assumpsit was made and for the notice what dammages the Plaintiff had sustained the request to perform the Assumpsit implies that sufficiently and so gave judgement for the Plaintiff Dersly and Dersly Mich. 23 Car. Banc. Reg. THree are endicted of Conspiracy and forgerg Arrest of Iudgement upon an Endictment of Forgery and one of them only is found guilty by the Iury. The party found guilty moved in arrest of judgement and offered these Exceptions 1. The endictment is for a joynt forgery and so one only cannot be guilty but if one be acquitted all must be acquitted 2ly The endictment is for forgery and causing to forge which are two several and different Acts. But to these the Court said nothing But took another Exception namely Conspiracy that the Conspiracy is not found upon which the Endictment is grounded according to the Statute for 2 are acquitted and so there cannot be a Conspiracy in the third person nor in any of them for one cannot conspire alone Bruer and Sowthwell Mich. 23 Car. Banc. Reg. IN this case it was moved again in arrest of Iudgement Arrest of Iudgement in an Action upon an Assumpsit Nudum pactum Consideration upon the exception formerly taken namely that the words in the Declaration discounting for four Months were uncertain and so there is no consideration for the Assumpsit and then it is but nudum pactum Roll Iustice said the Declaration is insufficient for the incertainty for it cannot be known what is meant by the word discounting Yet he said that though part of the Consideration upon which the Assumpsit is grounded be against Law yet if the other part be good and it may be divided the Assumpsit is good notwithstanding Yet we will hear Councel on both parts before the Plaintiff shall have Iudgement Colson and Bedloe Mich. 23 Car. Banc. Reg. Entred Mich. 22 Car. rot 434. COlson brought an Action upon the Case upon an Assumpsit against Bedlore Arrest of Iudgment in an action upon the Case upon an Assumsit and declares that in consideration of so much monys paid by the Plaintiff to the Defendant the Defendant did assume and promise to deliver so many loads of Hay unto him at such a place and for not performing his promise he brings his Action The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement upon these Exceptions 1. The Declaration doth not
set forth Jurisdiction that the place where the promise was made was within the Iurisdiction of the Court which ought to have been because it is the ground of the Action To this Roll Justice answered that it doth not appear that it is out of the Iurisdiction of the Court and it shall not be intended to be so if it be not alleged by the other party A second exception was Intendment Request that there is not a special Request set forth for the Defendant to carry and lay the Hay in the place alleged 3ly The pleading is out of Court for want of a continuance to the Court for the continuance is not to the Court Discontinuance Verdict but to such a day only 4ly The Verdict is informal and shews no cause why dammages are given Roll Iustice to the first exception said that the party ought to have taken advantage in pleading that the cause of Action was out of the Iurisdiction of the Court Pleading and not to move such matter in arrest of Iudgement for it is improper But the Court ruled the Plaintiff to shew cause why Iudgement should not be arrested upon the third exception Afterward the same Term judgement was given nil capiat per billam against the Plaintiff for the discontinuance in the Process Tentch and Cletheroe Mich. 23 Car. Banc. Reg. Pasc 22 Car. rot 332. TEntch brings an Action of Covenant against Cletheroe Error to reverse a Judgement in an Action of Covenant declares that the Defendant had covenanted with him to pay such a sum of mony into the Exchequer at such a time and for not performing this Covenant he brings his Action The Plaintiff hath a Verdict a Iudgment The Defendant brings his Writ of Error assigns for error that the Plaintif had not set forth in what County the Exchequer is and cites Hobs his case Pasc 8 Car. County and a case 22 Car. C. Banc. That the County is material to be alleged by reason of the Venue 1 E. 4.3 Cooks institut 210.21 H. 6. f. 4. The Court held that the County where the Exchequer was ought to be alleged Exchequer because the Exchequer is transitory and not fixt to one place Venue and so there can be no Venue because it appears not in what County it is And for this cause the Iudgment was reversed Sawyer and Russell Mich. 23 Car. Banc. Reg. SAwyer brought an Action upon the Case for speaking these words of him Thou art a Witch and hast bewitched my Cow Arrest of Iudgment in an Action upon the Case for words VVitch-craft The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement for these reasons 1. Such bewitching as is mentioned in the Declaration is not punishable by the Statute of 1 lac for it comes not within any of the branches of that Statute neither that which speaks of death by Witchcraft nor of the other branch for it is not averred that the Cow was hurt or destroyed by the bewitching and so the party is not punishable Intendment And it shall not be intended to be so for the party shall not be punished by an Endictment by an intention neither shall he be here in this Case And 2ly words ambiguous of this nature shall be taken in mitiori sensu Roll Iustice said that these words VVords Thou hast bewitched my Mothers Milk and Drink have béen adjudged actionable and here is a scandal of the party of whom the words are spoken and the words thou hast bewitched implies hurt done to the thing bewitched and this case differs from an Endictment for an Endictment must be more certain than these words need to be And a violent intendment as here is may bring one within the compass of an Action Therefore let the Plaintiff have his Iudgement if better matter be not shewn Monday next Nevill and Mott. Mich. 23 Car. Banc. Reg. NEvill brought an Action upon the Case against Mott and declared Arest of Iudgment in an action upon the Case for words that the Defendant being in company with him with a Constable did speak thus of the Plaintiff to the Constable There he is take him for I charge him with flat felony and after spoke these words of him also Mr. Nevill hath taken my Sheep with a felonious intent The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement that the words are not actionable and cited Poland and Masons case Hob. Rep. and alleged these reasons also 1. Because the words were spoken to a Constable in prosecution of Iustice which shall not be taken hold of by a private person as a particular injury meant to him Averment 2ly It is not said the words were spoken falso malitiose as it ought to have been But to the second Exception Roll Iustice said It is not not necessary to say they were spoken falso malitiose where they appear to be scandalous for there the Action lies well though it be not so expressed and if one charge another with suspition of Felony and speak such words of him if they appear to be maliciously spoken an Action very well lies The rule was for the Plaintiff to take his Iudgement if better cause be not shewed to the contrary King and Hide Mich. 23 Car. Banc. Reg. HIde moved for the quashing of an Endictment taken before Commissioners of Sewers For quashing an Edictment before Commissioners of Sewers wherein he was endicted for a nusance made in the high way by reason of penning of water in the River at his Mill wherby the water over-flowing the Banks did annoy the way and he took this exception to the Endictment that it did not say it was a navigable River But to this Roll Iustice answered it was not necessary to say it was navigable for if it be a common passage for water it is sufficient and lies within the conusance of the Commissioners But Roll took another exception to the Endictment That it sets forth this overflowing of the water to be a nusance to the high way Nusance and for this the party is endicted whereas Commissioniers of Sewers have no power to meddle with such nusances in the way but only with passages by Water And for this cause the Endictment was quashed Monger and Shaterton Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 569. A Writ of Error was brought in this Court to reverse a Iudgement given in the Barrow-Court of Southwark Error to reverse a Iudgement given in the Burrow-Court of Southwark and the Error assigned was that in the Venire facias one of the Iury is called Richardon and in the Habeas Corpora he is called Richardson which are two several names and so it is incertain what the proper name is To this the Councel on the other side said that this fault is helped by the Statute it being after a Verdict But Bacon Iustice said
supposed to be done in fee and so seised did demise the same for years by deed to the Plaintiff reserving rent in which deed was a clause of reentry for non payment of the rent and afterwards made his last Will in writing and dyed by which will be gave the said land in qua c. to the Defendant and that after the rent was behind and that he for the non payment of the rent according to the Covenant in the deed by virtue of the clause of reentry did enter intot he lands which is the same breaking of the Fence and entry for which the Plaintiff brings his Action and demands Iudgement if the Plaintiff ought to have his Action To this Plea the Plaintiff demurs and shews for cause That it doth not shew that the lease made to the Plaintiff is a lease of the land in which the Trespasse is supposed to be done 2ly Licence The Defendant doth not shew that he did â—nter into the land by leave of the Executor which he ought to have done for though the land was devised to him by will yet he cannot enter into the land without leave of the Executor The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea. and Long. Mich. 23 Car. Banc. Reg. THe Plaintiff brought an Action upon the Case for these words spoken of him Arest of Iudgment in an action for words Long is a murtherer and hath bewitched my Child and was the death of my Child and obteins a verdict The Defendant moves in arrest of Iudgement and takes these exceptions to the Declaration 1. That it is not said that the Child was bewitched to death 2ly It doth not express whether the Child bewitched was born alive or not To this the Court said Felony that the bewitching of the Child is Felony though it do not dye by it And to the second exception That the Court doth not take notice of a Child if it be dead-born and they will intend it was born alive and Roll Iustice said that these words Thou didst kill my Masters Cook Averment have been adjudged actionable although the Plaintiff did not aver that his Master had a Cook Therefore let the Plaintiff take his Iudgement if better matter be not shewn Saturday next Carver against Pierce 23 Car. Banc. Reg. CArver brings an Action upon the Case against Pierce for speaking these words of him Arrest of Iudgement in an action for VVords Thou art a Thief for thou hast stollen my Dung and hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actioanble for it is not certain whether the Dung be a Chattel or part of the Free-hold and if so it cannot be Theft to take it but a Tresspass and then the Action will not lye Chattel Bacon Iustice Dung is a Chattel and may be stollen But Roll Iustice answered Dung may be a Chattel and it may not be a Chattel for a heap of Dung is a Chattel but if it be spread upon the Land it is not and said the word Thief here is actionable alone Felony and there are no subsequent words to mitigate the former words for the stealing of Dung is Felony if it be a Chattel Bacon Iustice said It doth not appear in this Case of what value the Dung was and how shall it then be known whether it be Felony or pety Larceny To this Roll answered the words are scandalous notwithstanding and actionable though the stealing of the Dung be not Felony The rule was to move it again Tuesday next Mich. 23. Car. Banc. Reg. A Writ of Error was brought in this Court to reverse a Iudgement given in the Marshals Court Error to reverse a Iudgment for discontinuance in the Process Discontinuance and the exception taken was that there was a dicontinuance in the process and so there ought to have been no Iudgement and therefore the Iudgement given is erroneous and that there was a Discontinuance it thus appears The Continuance was ad proximam Curiam and it appears upon the retorn of the Venire facias that that was no Court day for it was the three and twentyeth day of the Month whereas Friday on which day the Court was held was not the 23 day and so there is Error in the continuance Roll Iustice said the former Continuance was to the 9th day and from thence to the 15th and that is but six daies and so wants of the time Iudgement Bacon Iustice Where there is a Discontinuance the Court hath no power to give Iudgement and so the Iudgement is here erroneous and therefore let it be reversed nisi causa c. Mich. 23 Car. Banc. Reg. LEssee for years of Lands by Deed Demurrer to a Plea in an action of Covenant brings an Action of Covenant against the Lessor and declares that the Lessor had covenanted that he should peaceably and quietly enjoy the Lands let during the Term and that a Stranger entred upon him and ousted him within the Term. To this Declaration the Defedant demurs Roll Iustice said that the Covenant in this Case is broken though it be a Stranger that entered and ousted the Lessee Walker of Councel with the Defendant took this difference where a Stranger enters upon the Lessee and doth a Trespass and where he enters and outs the Lessee in the former Case he said Covenant the Covenant is not broken but in latter it is broken Iudgement was given for the Plaintiff except cause should be shewn Monday next Thynn against Thynn Mich. 23 Car. Banc. Reg. Hill 23 Car. rot 1658. THynn brought an Action of Dower against Thynn Error to reverse a Iudgement in Dower Return Proclamation and hath a Iudgement by default and thereupon a Writ of Enquiry issued out to the Sheriff who delivered seisin of the Dower recovered and returned the Writ upon this Iudgement The Defendant brings a Writ of Error and assigns these Errors in the Record 1. The original Writ appears not to be returned according to the Statute for the year doth not appear when it was returned 2ly The Proclamation made by the Sheriff appears not to be where the Land lyes 3ly Summons The return doth not mention that the Proclamation was after the Summons as it ought to be as it is Hob. Reports in Allens Case 4ly It is not said that he did make Proclamation upon the Land 5ly It appears not that the Proclamation was in the Parish where the Summons was as the Statute directs To these exceptions Hales of Councel on the other side answered To the first Return that the retorn of the original Writ shall be intended to be in the year of the Reign and not of the Age of the King though the word Reign be omitted To the second the Lands lye in divers Parishes and Proclamation at the Church of any of the Parishes is good
fuit et adhuc est sesitus is not good for it is not material whether he were seised at the time of the distresse or no but whether he were seised at the time of the replevin and there is a distance between the replevin and the avowry and there is a prius and a posterius in it Roll Iustice said it is made up in the retorn and there is no distinction of time and if one plead an ill plea Plea and the issue upon it be found against him he shall not take advantage of his own ill plea and if there be a negative and an affirmative though the issue be not well joyned it is helped by the Statute of Ieofailes otherwise if there be not an affirmative and a negative for then there is no issue at all joyned to be helped Bacon Iustice Oves matrices et vervices is ill for the Sheriff knowes not what retorn to make Roll accords and said you have made that which was certain to be incertain by the specification you have made and a replevin is a demand and ought to be as certain as a precipe Iudgement was given against the Plaintiff in the case at the bar because the Declaration was ill and uncertain Gilbert agaiast Stone Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1703. GIlbert brought an Action of Trespasse quare clausum fregit Demurrer upon a plea in Trespasse and taking of a gelding against Stone The Defendant pleads that he for fear of his life and wounding of twelve armed men who threatned to kill him if he did not the fact went into the house of the Plaintiff and took the gelding The Plaintiff demurred to this plea Roll Iustice This is no plea to justifie the Defendant Trespasse for I may not do a Trespasse to one for fear of threatnings of another for by this means the party injured shall have no satisfaction for he cannot have it of the party that threatned Therefore let the Plaintiff have his Iudgement Symons and Low Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 650. SYmons brings an Action upon the Case against Low for speaking these words of hir Error upon a Iudgement for words Plaint She innuendo the Plaintiff is perjured and hath a verdict and a Iudgement the Defendant brings a Writ of Error to reverse this Iudgement and assigns for Error that the plaint was entred the same day that the words were spoken which was said ought not to be because the Action should be brought after the words spoken Fractions which shall not be intended to be if it be the same day because the Law admits of no fractions of time which will be if a day be divided into several parts as it here must be for there must be one hour supposed when the words were spoken and another hour when the plaint was entred But Roll Iustice said it was well enough and ordered the Plaintiff to take her Iudgement if cause were not shewn before the end of the Term. Cheevers against Mich. 23 Car. Banc. Reg. VPon a rule of Court to shew cause why a scire facias to revive a Iudgment was not good To quash a scire facias This was offred for cause that it doth not shew before whom the Iudgement was given which was to be revived by the scire facias and consequently there appears no Iudgement to warrant the scire facias To this Roll Iustice answered that in the Common pleas the course is to set forth before whom the Iudgement is given but in this Court the course is not so But how comes the Record hither The Councell answered That there was a Iudgement in Canterbury and upon that a Writ of Error was brought in this Court and the Iudgement affirmed upon that Writ of Error Scire facias and then a Scire facias issued out here upon the Iudgement against the bail and upon this the bail moves upon the record that there is error in the scire facias Roll Iustice The Record is well enough In a scire facias it is not requisite to say Consideratum est per curiam Therefore let the scire facias stand Carver and Pierce Mich. 23 Car. Banc. Reg. THe Case between Carver and Pierce was again moved by Hales Arrest of Iudgement for words wherin it was moved formerly in arrest of Iudgement that these words Thou art a theef and hast stolen my dung are not actionable That the words are actionable for these reasons 1. The first words are actionable and the second words are accumulative and aggravate the former words and do not mitigate them 2. It may be felony to steal dung and the violence of the words do enforce it to be so intended Bacon Iustice I hold that Iudgement is to be given for the Plaintiff and so it was for these words thou art a theef and hast stolen my Corn. Roll Iustice was of the same opinion and said that the second words are not violent enough to allay the first words and are not explanatory and by way of mitigation for the words are not for thou hast but they are and thou hast stollen my dung Iudgement was given for the Plaintiff antea Eeles and Lambert Mich. 23 Car. Banc. Reg. THe Case between Eeles and Lambert was again argued by Latch for the Plaintiff and by Twisden for the Defendant Latch argued to this effect Argument upon a plea by an Executor Legacy That the Legatee hath no right in the legacy untill it be delivered unto him by the Executor 2 E. 4 fol. 13. but if a legacy be given in this manner if I dye let my Cosen have such a thing there the Legatee may take the legacy without the delivery of the Executor and a thing which cannot be devided cannot be administred Bracton l. b. 2. C. 26. 7 H. 6. Administration Devise A devise is void if there be not sufficient goods besides to satisfie the Debts of the Testator 2. The disposition of the Testator ought to agree with the law of God the law of nature and the Law of the Land and whereas it is objected that there will be an inconvenience if the legacies shall not be paid I answer the Law regards not this inconveniencie But 2ly this inconvenience is none in respect of the inconvenience will be on the other side if the legacies be paid namely the breaking of the Law of God the Law of Nature and of the Land and the inconveniences supposed are helped by the Civill Law Caution for it takes caution in paying of legacies to repay them in such accidents as are in our Case Twisden for the Defendant argued that it was a good administration of the goods and that there is no assets in the hands of the Executors and he agrees that a devise of goods in specie and a devise of mony is all one but this is not a Debt and so is not to be paid for in
Lands he hath 40 s. a year in Lands at least and more and therefore it is a better Iury and more sufficient and by this the verdict shall not be vitiated though the Venire be not quorum quilibet habet 40 s. per annum ad minus as the Statute directs and he cited 21 Iac. Philpot and Fielders Case to be so adjudged and he said that Lands in the hands of a Trustee may be extended for the Kings debt Extent but that he did not conceive how the King can have Copyhold-lands that are in trust for an Alien Seisuie Bacon Iustice The Commissioners that found this inquisition for the King had no power by their Commission to seize the Lands into the Kings hands but only to enquire what Lands the Alien had The Court ordered that cause should be shewn Tuesday following why the party shall not be restored to his Lands which were seised into the Kings hands by vertue of the Inquisition Postea Hill 23 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an Action upon the Case Error upon a Iudgement in an Action up-the Case Incertainty Tryal upon an Assumpsit brought by two at Maydston in Kent and the Error assigned was that the Plaintifs in their Declaration do say unde dixerunt quod deteriorati sunt c. whereas it should be unde deteriorati sunt and not dixerunt c. for that is positive and the other not for they may say they are damnified and be not and there can be no tryal upon such uncertain words Roll Iustice said the words are not well laid yet if there were other words sufficient to expresse the dammage the Plaintiff had received it would be good enough but these words here govern the whole sentence Therefore let the Defendant in the Writ of Error consider how he can make the Declaration good The King against Savage Hill 23 Car. Banc. Reg. ONe Savage was arraigned in this Court upon an Endictment of Felony For quashing an Endictment for Felony for killing of a Woman within the Verge The truth of the Case was he beat and wounded the Woman at Lesne Abby in Kent which is within the Verge but the Woman dyed at Sevenock in Kent which is out of the Verge The Prisoner prayed the Court he might have Walker of the Inner-Temple assigned him for Councel for matter in Law which the Court granted Walker for the Prisoner prays the Endictment may be read which was done accordingly Whereupon he took these exceptions to it 1. That the Endictment doth not shew upon what part of the body particularly the Woman was wounded but it saith only generally that it was upon the hinder parts of her Body 2ly It sayes the Woman dyed de diversis plagis but it doth not shew of what length and breadth the wounds were as it ought to do nor doth it say of which of the wounds she dyed and so it is uncertain Incertainty and cannot be known whether the Wounds were mortal or no. 3ly By the Statute de Articulis super Chartas in this Case where the party was wounded within the Verge and dyed without the Verge the Coroner of the Verge and of the County ought to joyn in taking the Iuquisition super visum Corporis Inquisition which is not here done but the Inquisition is taken by the Coroner of the Verge only Bacon Iustice said the party is said to be slain where he dies not where he was wounded The Court ordered the Prisoner to appear a wéek after and in the mean time to give notice to the Kings Councel of the Exceptions taken to the Endictment and know whether they will maintain the Endictment Bail the same Term the Endictment was adjudged not good and the party was bayled Thyn against Thyn Hill 23 Car. Banc. Reg. Hill 22 Car. rot 1638. DAme Katherine Thyn brings a Writ of Dower in the Common-pleas against Sir Iames Thyn and hath a Verdict and a Iudgement Error in a Writ of Error Retorn the Defendant brings a Writ of Error to reverse this Iudgement in this Court and assigns for Error 1. In the Retorn made by the Sheriff for he doth not say that the Proclamation was made at the Church of the Town where the Summons was made Summons and a Summons upon any one part of the Land as hath béen objected on the other side is not good neither by the words nor the intent of the Statute for then the words in the Statute should be surplusage and idle that particularly directs how it should be And as to the Objection Fiction of Law Statute That a Summons upon one part of the Land is good in fiction of Law for the rest of the Land I answer That this is not so where the Statute directs the Summons and the words secundum formam Statuti cannot help where the Statute is not shewed to be pursued and so saith Dyer That substantial words ought to be mentioned Hill 24 Iac. Hâ—b Pl 179. Allen and Walkers Case 2ly Demand There is Error in the Demand of the Dower for the certainty of the Tithes demanded ought to appear and it doth not so here 11 Rep. Harpers Case f. 25. And for that which is said in answer unto this That a Demand of Dower is different from other Demands I agrée it to be true 8. H. 6. 3. Yet the things demanded in Dower must be certainly demanded 11 H. 7. f. 25. as it is in an Assise for an Assise de uno tenemento is not good for the incertainty Assise 4 E. 2. Fitzh Assise 45 1. Estovers demanded ought to be shewed particularly so is it of a Corrody 11 E. 3. Fitzh Dower 85. Dyer f. 84. 7 E. 6. Pasc 5 Iac. the Countess of Oxfords Case and whereas there hath this difference been taken betwéen a Demand of Tithes in gross and of Tithes appendant and that Tithes in gross must be particularly demanded but it is not necessary to demand Tithes appendat particularly I answer This is not so for their appendancy doth not make them not to be demanded particularly no more than if they were in gross 18 E. 2. Asise 377. A Corrody must be particularly demanded and all the Presidents prove it and it was so held Pasc 8 Car. rot 271. in Bruer and Drakes case in a writ of Error in this Court upon a judgement given in Dower in the Common-pleas A 2d exception to the Demand of the Dower is this the Writ of Dower is de manerio de Imber and the Demand is of Dower in parochia de Imber and so it is larger than the Writ Parish for a Parish may comprehend many Vills Stat. 1 H. 5. C. 5. 22 E. 4. C. 2. Mich. 34 Eliz. rot 1537. Brad and Bishops Case in the Exchequer Pasc 38 Eliz. Bedel and Scarborows Case in an Ejectione firmae in this Court It is true that generally a
declared and the Defendant hath emparled and after emparlance he pleads that the lands are antient demean Plea which is a dillatory plea. Roll Iustice It is a good plea after imparlance for it goes in bar of the Action it self and not in abatement of the Writ The King and Holland Hill 23 Car. Banc. Reg. ROll Iustice said Opinion of the Court for restitution in this Court not in Chancery Iudgement Restitution that in this case formerly argued restitution ought to be given to the party for the same Iudgement shall be given here which should be given in Chancery and all the Record is here before us and they in Chancery cannot do any thing in the cause for they have nothing before them And it appears to us that the Declaration was insufficient and so we cannot give Iudgement for the Plaintiff but against him notwithstanding the inquisition found for the King Therefore let the party have restitution except cause shewed the first Friday in the next Term. Hill 23 Car. Banc. Reg. THe Court was moved to discharge a prisoner brought to the Bar For discharge of a prisoner by a habeas Corpus committed by the Committee of plundred Ministers and these exceptions were taken to the retorn 1. There is no time expressed how long the party shall stand committed Commitment so he is committed without limitation of time which is not legall 2ly He is committed by the name of Mr. Smith and his name of baptism is omitted which ought not to be Vpon these exceptions the Court held the commitment illegal and discharged the party Weekes and VVeekes Hill 23 Car. Banc. Reg. VPon the retorn of a certiorari to remove orders made by Commissioners of Sewers Against a retorn of orders of commissioners of Sewers Retorn Notice It was moved that the retorn was not good because it was not made by the partyes to whom the certiorari was directed for it was directed to the Commissioners and the retorn is made by the Clark of the Sewers But the Court said the retorn was good enough for all the retorns are so and the Clark is an officer of whom the Law takes notice of and it belongs to him to do it Pasc â—4 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour court in an Action upon the case Error to reverse a Iudgement in an inferior court in an Action upon the case Retorn Day in court and the Error assigned was that the habeas corpus was not well retorned for it is not retorned to be in omnibus servitum et executum as it ought to be and as the usual form is Maynard of Councel against the Writ of Error argued that it was well retorned notwithstanding those words were omitted because the Iury did appear full and no issues were lost and the Iury have day by the roll 3 H. 7. 14. per Hussey and 9 E. 4. 14. it is made a question but not resolved 2ly Though it be a Sisp yet it is within the Statute of 21. Iac. and is helped by it for that Statute extends to more than Writs as may appear by the Statute and the Statute of 18 Eliz. Bill Original writ recâ—ipt touching original Writs extends to faults of bills although original Writs are only named for a bill is the same in substance with a Writ so here the Writ and precept are of the same substance 3ly it is the intent of the Statute and the Statute shall be taken by equity Hill 13. Iac. in this Court in Gregory and Brookes case this question was stirred but not resolved and Hobart denyes the 5th report f. 61. to be Law and there is no proceedings properly in superiour Courts by plaint Roll Iustice The Statute extends not to point of equity in inferior Courts for their proceedings are not so regular as the proceedings in the high Courts here at Westminster but they are by short notes Bring us books and move it again Creswell against Ventryes Pasc 24 Car. Banc. Reg. CReswell brought an Action upon the case against Ventryes for speaking these words of him Arrest of Iudgment in an action upon the Case for words Thou didst and dost receive thief stollen goods witnesse a feather bed tick in thy house and the cloath which thy mans suit was made of and thou knewest they were stollen The Plaintiff hath a verdict the Defendant moves in arrest of Iudgement that the words are not actioanble for one may receive stollen goods and yet not be guilty of Felony Becon Iustice The receiving of stollen goods is not felony but the receiving and comforting of the Felon is Felony Felony The Iudgement was stayed till the other should move Thynn against Thynn Pasc 24 Car. Banc. Reg. THynn brings an Action against Thynn to reverse a Iudgement given in the Comon pleas in a writ of Dowr Error to reverse a Iudgement in Dowr Hales of Councel with the Defendant in the Writ of Dowr in answer to the exceptions formerly taken said that the summons was well enough retorned as it is because it was made upon some part of the land within the Vil Long quint. E. 4. 2 H. 4. 13. 39. E. 3. 7. 2ly It is not necessary to make the Proclamation Proclamation where the summons is for the Statute intends not to alter the course of the summons 2ly The words of the Statute are satisfied for the actual summons in one Vill is a summons in the other Vills 3ly The meaning of the Statute is satisfied and the mischef intended to be satisfied by the Statute Hob. 173. Allen and Walkers Case Demand For the 2d exception to the Demand he held it good enough for in a Writ of Dower a Demand needeth not to be so particular as in other Writs so is it in an Assise 11 E. 3. 18. 43 E. 3. 6. 3 Ed. 2. Dower 161. and the reason is because the Wife demands not the whole Land nor can have the Charters which concern the Land to enable her to make so precise a Demand as may be in other Writs And as to Harpers Case that is objected I answer it agrées not with our Case Regist f. 36. 16 E. 3. Fitzh Quar. Imp. 147. and it is certain enough because it is of a Rectory and not of Tithes in gross 3ly The demand of Tithes is surplusage and it is all one as to say the Rectory cum pertinentiis Then as to the Objection that one thing is twice demanded I answer it is not so â—â—aâ—ement Dammages but demanded as part of a thing demanded in the Writ and a Demand in a Writ of Dower shall not abate the Writ though one thing be twice demanded for dammages shall not be twice recovered 4 E. 3. f. 52. Mich. 9 Iac. in the Common-pleas agreed so by the whole Court In Bluers Case 8 Car. one thing was twice demanded and yet the Writ was not
notice of the Almanack and the feast dayes there set down or no. It was adjourned to be argued again the next Term. Thynn against Thynn Pasc 24 Car. Banc. Reg. IN this Case wherein exceptions were formerly taken to the Writ of Error Opinion of the Court concerning a retorn and argued Bacon Iustice said he had read over the book and doubted whether many of the Errors formerly assigned are not out of doreâ— because the certiorari is not well retorned before us for the certiorari is directed to the Recorder and it is retorned by the Deputy Recorder in his own name Retorn Roll Iustice doubted also for he said all the old presidents were against this retorn But if the Writ be directed to a Recorder who is custosbrevium or to a Recorder and his Deputy then the retorn as it is will be good TWisden of Councel with the Plaintiff in the Writ of Error in the Wiltshire cause took these exceptions The first exception take was Error and exceptions offered to a Iudgement in Dowr that he demand of Dowr is larger than the originall Writ for that the demand is of the Parish of Timesbury and the Writ is of the Vill of Timesbury which is not so large by intendment as a parish because there may be divers Vills in one parish and he said that in some case a Writ shall restrain a demand in other cases it shall not namely where they cannot stand together and so is it here 21 E. 4. f. 24. 3 E. 3. f. 56. Demand A second exception was that the nature of the tithes demanded are not set forth although they be not in gross but appendant as they ought to be Dowr and a feme was not dowable at all of tithes before the Statute of 32 H. 8. and a feme is dowable of Common appendant but not of Common in gross A third exception was that Dowr is recovered of a thing not dowable viz. of a quarry of stones for if she should be dowable of a quarry of stones this would be to the destruction of the inheritance and indeed it is impossible for a quarry of stones cannot be divided by metes and bounds which must be if she should be endowed of it And also if the mine and quarry should be divided the Tenant of the Land would be prejudiced and that a quarry cannot be divided see Cooks Lit. 164. and so was it adjudged 2 Iac. upon a reference to the Iudges Next there is also Error in fact for the Hundred of Warminster extends into the Hundred of Sutton parva Error in fact and so if she be endowed of the Hundred of Warminster she will be endowed of the third part of two Hundreds which is more than she demands by her Writ of Dowr Maynard of Councell with the Defendant in the Writ of Error said as to the summons he held there is a good summons and cited Hob. 137 Dalt f. 86. And there may be divers parishes in one Vill as well as divers Vills in one parish And to the exception that the demand of the Dowr in the Writ is generall whereas it ought to be a special demand he answered the demand in Dowr differs from other demands and is more favoured in Law for as Dowr it self is favoured in Law so are the proceedings in Law to recover it 6 E. 3. 45. 16. E. 2. 7. 8 H. 3. 11 Ed. 3. 85. 25 E. 3. breâ— 412. Fitz. Dowr 8 E. 3. Sect. 434. Reg. 39. And as to the surplusage in the demand this shall not abate the Writ 4 E. 3. 52. Fitz. brei 14. Abatement And that the parish should extend out of the Vill is a forein intendment and shall not be so taken against an Averment and when a Vill and a parish are named by one name one of them shall not be intended larger than the other if the contrary be not shewn Long quint. Ed. 4. f. 20. And he argued that a feme is dowable of a quarry and that it may be divided by metes and bounds for it may be divided by the profits although it cannot be divided by the quantity of the thing Roll Iustice said By no manner of pleading can one abate a Writ after Iudgement and how should it be so here And 2 Cases were cited by the Councell that bis petita shall not abate a Writ Mich. 9. Iac. Bolstrod and Brooks case and Easton and Styles case in a Writ of Dowr Pasc 24 Car. Banc. Reg. THe Plaintiff brought an Action of Trespasse quare vi et armis for rescuing of a Prisoner out of his possession Arrest of Iudgement in an action of Trespass vi et armis for rescous and hath a verdict against the Defendant The Defendant moves in arrest of Iudgement for that the Plaintiff ought to have brought his Action of Trespass upon the Case and not an Action of Trespass quare vi armis But Roll Iustice answered that he might have an Action upon the Case or a Trespass vi armis at his election Election of Action and therefore the exception is null Another exception was taken that there was 4 years between the time of the Trespass done and the time of bringing the Action Roll Iustice answered you should have pleaded this matter if you would have had advantage by it but it is to no purpose to urge it Another exception was taken that the Declaration says that he took him in his possession out of his possession But the Court over-ruled this also and ordered the Defendant to shew better matter why Iudgement should not be given against him King against Pasc 24 Car. Banc. Reg. KIng brought an Action of the Case in London against the Defendant For a Procedendo in an action upon the Case removed our of London Custome for speaking these words of her Thou art a Whore and Cantrels Whore and hast been so this forty years The Defendant removed the Cause into this Court by a Certiorari the Plaintiff moved for a Procedendo But nothing was done in it for the Court was divided for Bacon Iustice held the words not actionable But Roll Iustice held that by the Custome of London they were though not at the Common-law Aylett against Stellam Pasc 24 Car. Banc. Reg. TWisden upon a rule of Court to shew cause why there should not be a new Tryal Cause why no new Tryal said that two things were alleged on the other side that there ought to be a new Tryal 1. That two of the Iurors were of kin to the Plaintiff And 2ly That there was notice given to the Defendant of a second Venire facias To the first of which he answered that the Iurors were not of kin and produced an Affidavit for proof Roll Iustice interrupted him and said it is not now material whether they be of kin or no for the Defendant should have taken advantage of that upon his challenge at the Tryal
Challenge Advantage And for the second it matters not whether he gave notice of the second Venire or no for the rules of the Court do not enjoyn him to give notice Maynard of Councel with the Defendant urged that two of the Iurors were of kin and produceth an Affidavit to prove it and said that the Defendant was also surprised for want of notice of the second Venire Roll Iustice said the second Venire ought to be entred here and if it were not entred how can the Defendant know whether it be altered or no Yet here is no breach of the rules of the Court and so the proceedings are fair for the Venire may be entred Entry or it may not be entred and if it be not entred the party may go to the Attorny and procure a Copy of it before the Tryal and though the Venire be not entred till after the Assises it is well enough Therefore let the Plaintiff take his Iudgement Thyn against Thyn Pasc 24 Car. Banc. Reg. LAtch of Councel with the Plaintiff in the Writ of Error argued again Argument in Dower Demand and held 1. That the nature of the Tithes demanded in the Writ of Dower ought to have been expressed for the demand may peradventure be of such Tithes whereof the Feme is not dowable 2ly Where the thing it self is demanded of which the Sheriff is to give possession there the Demand of it ought to be certain for as it is in a Demand in an Ejectione firmae or an Assise so ought it to be in a Demand in a Writ of Dower Dyer f. 116. 258. 11 Rep. Harpers Case Dyer 83. the Sergeants Case 44 B. 3.5 Cooks Entries tit Dower plac 2d and though the Demand be of all Tithes yet they ought to be specified as it is in Harpers Case and so it is of Tithes in gross 11 Rep. Savills Case Mich. 12 Iac. Bales and Hamond in this Court. And as to the Retorn a Chapel is demanded Retorn and Iudgement given for it and yet the Retorn doth not mention it and it is not enough to comprise it in other words and it is doubtfull whether a Chapel be a Tenement or no for it is not a temporal Inheritance as an Advowson is Tenement VVrit Dyer 83. In some Case the Writ may be general and the Count special but that is where there is not a special form of Writ 2ly a Chapel is not conveyed in Fines and Recoveries or Entries by the name of a Tenement nor in any judicial proceedings but Tenementa in a Grant may contain a Chapel 3ly The particular enumeration of other things and the â—mitting of the Chapel makes it ill and so would it be in a Grant by such in enumeration Dyer 161. The Case of the Hamlets 36 Eliz. Ewer Heydon 21 22 Eliz. the Bishop of Norwitches case 8 Rep. 18. Doctor Bonhams Case 12 Ed. 1. Grants 87. Other exceptions he took to the Iudgement and execution First to the Iudgement Hundred that a Hundred cannot be delivered by metes and bounds for a Hundred is but a Iurisdiction and is entire 2ly The execution is ill for a Court of Frank pledge cannot be divided by metes and bounds Cooks Instit 32. and Dower is assignable either by metes and bounds or in common or in special manner lib. Intrat 18. He took also Exceptions to the second Iudgement Dammages that dammages of the value of the Tithes are not to be given in Dower next the Inquisition doth not find that the Husband dyed seised of the Tithes and then there can be no Iudgement given for them And the dying seised of the Rectory is no dying seised of the Tithes nor is the dying seised of the Chapel a dying seised of the Tithes appurtenant to it for the Chapel is but the Chapel-House or Dilatory 11 Rep. Harpers Case Then for the Error in fact the demand is of the Manner of Lullington and this extends out of Lullington and it is not repugnant to the Record to assign this Error in fact and it could not have been pleaded in abatement of the Writ 8 E. 3. 68. A Nuper obiit resembles a Writ of Dower Nuper oblit 7 E. 3. 28. 7 E. 3. pl. 5.12 Ass 20. 26 E. 3. 72. 29 Ass 55. 10 E. 4 11. 9 E. 4. 3. 9 E. 4. 17. And so prayed the Iudgement might be reversed It was adjourned to be argued again the next Term. Hill against Bird. Pasc 24 Car. Banc. Reg. VPon a rule of Court to shew cause why a Prohibition should not be granted to the Prerogative Cause why no Prohibition to the Prerogative Court Latch stated the Case to be this A man dyed intestate the Daughter of the Brother of the Intestate her Father being dead procures Letters of Administration and a Son of the Sister of the Intestate sues in the Prerogative to revoke the administration or to have distribution of the Goods the Administrator prays a Prohibition and hereupon he prays that either no Prohibition at all is to be granted or else it must be special Prohibition Roll Iustice The Daugther of the Brother and the Brother of the Sister of the Intestate are in equal degree of kindred and the Ordinary may grant administration to which he pleaseth Administration Latch urged that the administration was not yet setled for it was granted upon Condition and if the Administrator will not bring in an inventory the Ordinary may alter the administration Hales on the other side prays there may be a general Prohibition cuiliber c. Roll Iustice The Prohibition must be against some certain person but if divers have appeared to sue there a Prohibition shall be against all of them and the Iurisdiction of the Court cannot be enlarged by the agreement of the parties Revocation Hob. Tucker and Boâ—es Case And an administration cannot be revoked for the not bringing in of the Inventory and Accompt by the Admnistrator The libel was afterwards read which was to have distribution of the Goods or else to reverse the Letters of admimiâ—â—â—tration and upon this the Court granted to a Prohibition if cause be not shewn upon notice to the contrary as to the Distribution but not generally Leving against Gamble Pasc 24 Car. Banc. Reg. IN arrest of Iudgement it was urged Arrest of Iudgement in Trespass that the Declaration was incertain for the Plaintiff had declared pro quinque pecias stanni anglice Pewter-dishes whereas pecias stanni did not fignifie Pewter-dishes for it might be Spoons Pots or any other sort of Pewter as well as Dishes But the Councel on the other side said Anglice void it was well enough and prayed for Iudgement Roll Iustice said the Anglice shall be void and then the Latin is good for it is five pieces of Pewter and it matters not what pieces they be For it is ad valentiam which makes the value certain
enough to the Iury. Therefore let the Plaintiff take his Iudgement Scoble against Tolye Pasc 24 Car. Banc Reg. SCoble brings an Action of Trespass against Toyle Demurrer upon a Replication in Trespass for taking away his Cattel The Defendant pleads that the Plaintiff was possessed of the Cattel joyntly with another not named in the Writ and demands Iudgement of the Writ The Plaitiff replies that the other with whom he was joyntly possessed was dead at the time of the Action brought The Defendant demurs for delay The Court ruled a respondes ouster Maynard of Councel with the Plaintiff said it was peremptory Peremptory But the Court was against him and ordered the Defendant to plead in chief Saturday following Hart against Bucminster Pasc 24 Car. Banc. Reg. Hill 23 Car. rot 225. HArt brought an Action of Debt upon an Obligation of 200 l. Iudgement demanded of a Plea against Buckminster and sets forth that the condition of the Obligation was to this effect That whereas Hart had carryed so many thousand of Billets and delivered them at Dartford in Kent for the use of Buckminster amounting at so much by the thousand to a hundred pound in the whole if therefore the Defendant should pay the said hundred pound at such a time and place that then the Obligation to be void or else to be in force and for non-payment was the Action brought The Defendant sayes that the Plaintiff did not carry and deliver so many thousand of Billets to Dartford as the Plaintiff had declared and demands Iudgement of the Action The Plaintiff by way of replication demands Iudgement if the Defendant shall be admitted to pleadt his Plea which is contrary to the averment of the Obligation which is his own Déed and shall not be estopped thereby Estople To this the Defendant demurs And the Court held that this recital in the Obligation is an Estople to the Defendant to plead the contrary and the rule was for him to shew cause why Iudgement should not be given against him upon his Demurrer Southcott against Southcott Pasc 24 Car. Banc. Reg. SOuthcott brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes against Southcott Arrest of Iudgement in an Action for Tithes upon the Stat. of 2 Ed. 6. and hath a verdict The Defendant moves in arrest of Iudgement and shews that the Declaration was too general and incertain for it is for such a quantity of Grain and doth not set forth what sort of Grain and so it may be for Grain not titheable Maynard of Councel with the Plaintiff held that in this Case the Declaration was well enough although it would not have been so in an Action of trespass for that Action requires more certainty A 2d Exception was that it is not said whether the Corn was in Garbs or Sheaves To this Maynard said it is well enough notwithstanding for it shall be intended only of such Grain as is usually put in Garbs Hales of Councel with the Defendant said the word Grain was too general a word to be used Incertainty and no certainty in it for it extends to Mustard-seed Cole-seed Rape-seed c. and the genus ought to be expressed and it shall not be intended of Corn put in Garbs The Court would advise but enclined the Declaration was too general and not good Postea Pasc 24 Car. Banc. Reg. SIr Iohn Stowell endicted in the Country for high Treason was brought to the Bar by a Habeas corpus to be tryed Proceeding against a Prisoner for high Treason and desired to hold up his hand which he refused But the Court admonished him to do it because that before he did so he could not plead and if he were to plead a pardon for Treason he could not do it till he were first charged with the Endictment And Doctor Stories case 32 Eliz. was cited and it was said that though in an Endictment for Felony if the Prisoner refuse to plead he is to be pressed Yet in Treason it is not so for if the Prisoner indicted of Treason will not put himself upon his Tryal Pressing or answer impertinently which is not answering but nugation Iudgement Pro confesso judgement shall be given against him as taken pro confesso that he is guilty Pasc 24 Car. Banc. Reg. AN Action of the Case was brought against one for causing the Plaintif to be endicted of Rebellion and Felony Arrest of Iudgment in an action upon the Case The Defendant moves in arrest of Iudgement and shews that the Declaration was incertain for it sets forth an Endictment in quo crimen rebellionis ei imposuit felonii which words are so incertain that it appears not what the Plaintiff was charged with in the Endictment and so there could never have béen any Iudgment given against him Maynard on the other side said it was well expressed and could not well be otherwise expressed than it is Bacon Iustice said Rebellion Intention there may be Rebellion which is not capital as Rebellion in Chancery But Roll differed in opinion and said the intent of the words spoken is to be considered The rule was to bring Books to the Iudges Mayhue and Baspool Trin. 24 Car Banc. Reg. BAsâ—ool brought an Action upon the Case upon a promise against Maybue Error upon a Iudgement in an Action upon the Case and hath a Iudgement against him The Defendant brings a Writ of Error in this Court to reverse the Iudgement and assigns for Error 1 It is not said in the Declaration that the promise was made within the Iurisdiction of the Court But Roll Iustice answered that it was that the Desendant was indebted tunc ibidem which shews that he became indebted within the jurisdiction of the Court. Iurisdiction Assumpsit and the being indebted there is an Assumpsit in Law that he will pay the Debt and therefore it is not needfull of shew expresly that he did promise there to pay it 2ly The Venire is duodecim probos legales homines whereas it should be liberos c. But the Court over-ruled this exception also and affirmed the Iudgement except better matter should be shewn VVinn against Stebbins Trin. 24 Car. Banc. Reg. VPon a rule of Court for a reference to the Secondary Whether a contempt to the Court or not whether the party and the Sheriff were in contempt to the Court for taking out of Execution and executing it after a Writ of Error brought upon a Iudgment it was moved that he might make his report who thereupon reported to this effect That there was a writ of Error brought upon the Iudgement before Execution taken forth Notice but there was no notice thereof given to the party nor any supersedeas taken forth to stay Execution and therefore the Plaintiff might take out Execution Contempt notwithstanding the writ of Error brought and that thereby he is
not in contempt to the Court. Roll Iustice said Then is the Execution now well executd Execution and the Sherif is in no fault Maynard of Councel with the Plaintif in the writ of Error moved that the Execution was awarded improvide and therefore the Court may restore the party to his goods taken in Execution although the Sherif be not in fault Roll Iustice The party ought to take notice of a recipitur upon the Record if it be entred and if the party take out Execution after the writ of Error is allowed he is in contempt to the Court else not and the Attorny is not bound to view the Record whether a writ of Error be brought but may take out Execution if there be not a Supersedeas Supersedeas or notice given to the party Therefore there is no help here for the proceedings have been according to the course of the Court for by the delivery of the writ of Error to the Officer of the Court the hands of the Court are closed Yet let us see the President that Wood ward hath to shew and let the Secondary examine it again Trin. 24 Car. Banc. Reg. AN Action of accompt was brought touching the fraight of a Ship For a scire facias against manucaptors and a Iudgement that the Defendant shall accompt and Auditors assigned and Manucaptors found to appear before the Auditors the Court was moved for a scire facias against the Manucaptors because that the Defendant did not appear at the day before the Auditors assigned and secondly it was moved that the Court would assigne a day peremptory Certificaâ—e Auditors for the party to appear before the Auditors But Roll Iustice said a day cannot be assigned untill a certificate be made to us from the Auditors for they are trusted and are Iudges of the cause and have power to excuse the non-appearance of the party at the day if they see cause and to give longer day or shorter for the party to appear as they think good end therefore till they certifie neither can you have a day assigned Scire facias nor a scire facias against the Manucaptors Clementson against Montford Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1493. A Writ of Error was brought to reverse a Iudgement in an Action upon the Case brought by an Administrator in the Court at Esham Error to reverse a Iudgement in an action upon the case The Errors assigned were 1. The Plaintiff doth not declare that the administration was granted unto him per loci illius ordinarium 2ly The Plaintiff saith in his Declaration producit litteras Administratorias intestati whereas it should be ordinarii and not intestati 3ly The Court cannot by its privilege being an inferiour Court Capias and that but newly erected award a Capias upon entring the plaint as it is here done 4ly The Court began first to be a Court but 9 Iac. and yet it is said to be held per usum et consuetudinem curiae Twisden to the 1. exception said that it is helped by the verdict Roll Iustice asked how doth it appear that Esham is within the Diocess of the Bishop that granted the Letters of Administration for if it be not the Letters are not well granted And said that in a Declaration it is not necessary to say that Letters of Administration are granted per loci illius ordinarium aut cui pertinuit Administration Declaration Plea although they ought to be so pleaded in a plea in Bar. To the second exception Twisden answered that the words mentioned are not necessary and the Declaration would be good enough without them and therefore they shall not hurt it though they he mistaken and if it should be otherwise yet they are helped by the verdict and to the first exception he said that the words secundum usum et consuetudinem shall be intended to be meant according to the Law and not according to ancient usage as is urged by the Councell on the other side The rule was that Iudgement be affirmed except better matter should be shewn Monday next Read against Palmer Trin. 24 Car. Banc. Reg. REad brings an Action upon the Case upon an Assumpsit to stand to an award against Palmer Arrest of Iudgement in an action upon the case and hath a verdict The Defendant moves in arrest of Iudgement and shews that there was an amendment in the consideration and the promise after the issue joyned Twisden answered it is not material though it be so for the matter of the Assumpsit is implyed and the words altered are idle and cited 37 â—l Heydons Case for it is de et super praemissis Amercement which implyes all the matter Roll Iustice said that the words de et super praemissis goe not to the time but to the matter submitted and said that the words postea scilicet eodem die Contract in law special contract upon a contract in Law shall be intended the time of the contract but here is a speciall contract and collateral and it ought to be otherwise intended and desired to see a book Freeborn against Purchase Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1575. FReeborn brought an Action upon the Case against Purchase Demurrer to a Declaration in an action upon the case and declares that the Defendant in consideration that the Plaintiff had paid unto him such a sum of money did assume and promise to joy in the surrender of certain Copyhold Lands and that for not performing this promise he brings his Action The Defendant demurs upon the Declaration Request and shews that the Plaintiff doth not allege that he made any request to the Defendant to joyn in the surrender which he ought to do for it was not a single Act to be done by the Defendant alone but he was to joyn in the Act with another Roll Iustice said the promise is that the Defendant shall joyn in the surrender Breach and he doth not say that he did request him to joyn which he should have done And besides the breach is not well assigned for you have assigned a particular way how he should surrender namely into the hands of 2 Tenants of the mannour whereas he did assume only to joyn in a surrender which may be in Court or into the hands of the Lord as well as into the hands of two Tenants so is Syms and Walkers Case 9 Car. Also the Plaintiff ought to have shewed that there is such a particular custom in the manour Notice that a Copyhold Tenant may surrender into the hands of two Tenants of the manour or else such a Custom cannot be taken notice of Therefore let a nil capiat per billam be entred against the Plaintiff Wright against Martin Trin. 24 Car. Banc. Reg. THe Court was moved to change the venue in an Action for an escape To change a venue in an action for an
escape Local upon an affidavit that the escape touching which the Action was brought was in another County and not in the County where the Action was brought But Roll Iustice said that an escape in one place is an escape all England over and is not local therefore the venue is not to be tyed to one place more than another Yet let the other party shew cause why the venue should not be altred Trin. 24 Car. Banc. Reg. VPon a rule to shew cause why Iudgement should not be stayed in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes Exceptions answered offered in arrest of Iudgement in an action upon the Statute of 2 Ed. 6. for not setting forth of tithes Recital these exceptions for merly taken were answered 1. It was said the Statute was misrecited for the day when the Parliament began wherein the Statute was made is mistaken but to this it is answered that the Declaration doth not say per Statutum in Parliamento inchoat tali die but in Parliament tento tali die and the Parliament was held by prorogation the day that it is mentioned though it were not then first begun and so that is well enough To the second exception that the Declaration doth say that the Plaintiff was primo die occupator ac postea eodem die c. So that it appears not Proprietor that he was proprietor and so the Action may not lye for he may be occupator wrongfully and so not proprietor It is answered that the Declaration is that he was tali die possessionatus et ab eodem die occupavit and this shall be judged of a rightfull estate and it is said that he is rector ecclesiae and so he shall be intended proprietor of the Tithes if the contrary be not shewn The rule was to shew better cause Friday following else Judgement for the Plaintiff Sowthcott against Sowthcott Trin. 24 Car. Banc. Reg IN this Case formerly moved Exceptions answered taken to arrest judgement in an action for tithes Tithes and Iudgement stayed til the Plaintiff should move Maynard for the Plaintiff moved for Iudgement and to the exception taken on the other side that the word grain used in the Declaration is too general and may extend to grain not titheable viz. to rape-seed and cole-seed c. as well as to titheable and so the Declaration is incertain De said it is well enough for it is said grain growing in such a field by name which makes it certain 2 rep lib. Int. 176. 2d Coment f. 161. b. and for the word grain in comon understanding it is meant for corn and not for seeds though in a large exception it may extend to seeds also Hales on the otherside said that the word grain is incertain and signifies more than corn and also the word Garbae is too generall for it may extend to more than sheafs of Corn for bundles of any thing bound up may be said to be Garbae as well as Corn bound in sheafs and may extend also to grain not titheable Roll Iustice held the words in the Declaration Seminavit cum grano proper enough Comon intent and that by common construction it shall be meant with Corn and not with seeds 10 Car. Goldsmiths Case Hill rot 8. And for Garbae it is also well enough for it shall be taken according to common construction which is to signifie corn bound up and shall not be taken in the large extent of the word for bundles of any thing else And the Iury hath taken notice of it for they have found debet which had they not they could not have found the verdict so The rule was for the Plaintiff to take his Iudgement if cause were not shewn Friday following The King and Sr. Henry Spiller Trin. 24 Car. â—anc Reg. THe Court was moved for the quashing of divers Endictments wherein Sr. Henry Spiller was endicted for not repairing a bridge For quashing divers Endictments for â—or repairing of a Bridge the exception to the first was that it doth not set forth in what County the bridge lyes and for that exception it was quashed Another Endictment was for not repairing of Mays Bridge and it doth not shew that the bridge is in the High-way But to this Roll Iustice said that the Endictment doth say it is a Common bridge and that is enough and it is needlesse to say it is in the Highway Another exception was taken to this Endictment that it did not shew whether the bridge were a cart bridge or a horse bridge or a foot bridge or what other passage was over it and for that exception that Endictment was quashed To a third Endictment for not repairing the same bridge this exception was taken viz. It sayes that Sr. Henry Spillar was bound to repair the bridge ratione manerii which cannot be good but it should be rationae tenurae manerii Roll Iustice said It ought to shew that he is owner of the manour and although it do expresse that he is bound to repair it ratione manerii sui that is but implication that he is to repair it Implication and makes it not appear that he is possessed of the manor and upon this exception was this Endictment quashed Addition To a fourth Endictment for not repairing the same bridge this exception was taken that there is no addition of the County where Sr. Henry Spillar dwelt as the Statute directs and for this it was also quashed Yet afterwards because there was no certificate that the bridge was repaired the Court would quash none of them but said let him plead to them The Defendants Councel moved that he might plead but to two of them and that processe might be spared to the rest Roll Iustice Appear to all and plead and proceed in two of them and processe shall be stayed to the rest Burrel and Lancaster Trin. 24 Car. Banc. Reg. BUrrell brought an Action of Trespasse quare clausum fregit against Lancaster Arrest of Iudgement in Trespasse quare clausum fregit Variance Nomen aggregativum and had a verdict the Defendant moved in arrest of Iudgement and for cause shews that there is a variance between the writ and the Declaration for the writ is quare clausum fregit in the singular number and the Plaintiff declares of divers Closes But Roll Iustice said That it was well enough for the word clausum is nomen aggregativum and may contain many Closes and so may well enough agree with the Declaration And therefore let the Plhintiff take his Iudgement Glide against Dudeney Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 426. GLide brings an ejectione firmae against Dudeney in the Common pleas Error upon a Iudgement in an ejectione firmae in the Comon plea and hath a Iudgement by default against the Defendant whereupon a writ of enquiry issues out to enquire of the Damages and before the retorn
the word pena be left out the Endictment is good enough without it and therefore passes ouster A second exception was that the Endictment doth not say that the Iustices before whom it was taken were justiciarii ad pacem tenendam in villa praedicta and then they might have no power to find the Endictment but this exception was also over-ruled by the Court A third exception was That the Endictment is too general for it only sayes that the prisoner practicavit diabolias artes and doth not expresse what To this Roll Justice answered that the employing of wicked spirits to any intent whatsoever is Felony within the Statute Felony and the intent why they were employed is well expressed in the Endictment and if an Endictment fail in one part it may be good in another and therefore the Endictment is good and the prisoner must plead Whereupon the prisoner pleaded not guilty Vpon this Walker moved the Court that this was an old Endictment and that the prisoner had been twice acquitted upon other Endictments of the same nature and that this was prosecuted for malice and prayed that the prisoner might be bailed which was granted And she was bailed by her Husband and by one Zachary Baggs a sufficient Citizen and Fishmonger of London and two others to appear at the next Assises to be held for the County of Suffolk Trin. 24 Car. Banc. Reg THe Court was moved to quash an Endictment exhibited upon the Statute of perjury at Kingston upon Thames for these exceptions To quash an Endictment upon the Statute of perjury 1. It is not expressed in what County Kingston is and 2ly the Endictment doth not expresse how the party is perjured for it shews not in what cause it was nor that it was in giving any evidence upon oath as a witnesse in any cause Vpon these exceptions the Endictment was quashed Nota Butler against Long. Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 496. LOng brought an Action of Trespasse against Butler in the City of _____ and hath a verdict and a Iudgement Error to reverse a judgement given in an inferiour Court the Defendant brings a writ of Error to reverse this Iudgement and assigns for Error 1. That the Declaration doth not shew in what Parish within the City the Trespasse was done as he ought To this Roll Iustice answered That it shall not be intended that there are more Parishes within the City than one Intention except the contrary be shewed 2ly The Declaration est quod cum talis viz. the Defendant c. which is not an expresse averment Declaration Trespasse that the Defendant did the Trespasse but it is set forth only by way of circumstance that he did it which is not good for he ought to be charged directly with it Roll Iustice The setting forth the Trespasse by a Quod cum is not good tho gh in another Action it may be good Therefore let the Iudgement be reversed except cause shewn to the contrary Saturday next VValker and Alder Trin. 24 Car. Banc. Reg ALder had a Iudgement and an Execution against Walker Auditaquereld for one taken twice upon one execution and thereupon he was taken and in custody in the Kings Bench prison Alder the Plaintiff afterwards consented that the Defendant Walker should come to him out of prison to the Horshoe Tavern which was out of the Rule without a Keeper or rule of Court thinking to make some agreement with him The Defendant accordingly went thither but because no agreement could be made The Plaintiff takes the Defendant again upon the same Execution and layes him again in the Kings Bench Audita querela Discharge the Defendant thereupon brings his audita querela And adjudged by the Court to be well brought for the Execution was discharged by the Prisoners going at large and therefore he could not be again taken upon it Reader against Palmer Trin. 24 Car. Banc. Reg. REader brought an Action upon the Case against Palmer Arrest of Iudgement in action upon the case for altering the Declaratio and hath a verdict the Defendant moved in arrest of Iudgement that the Plaintiff altered his Declaration in the consideration of the promise and in the promise it self after he had pleaded so that thereby the same issue which is tryed is not that which was joyned Twisden of Councell with the Plaintiff said that the issue was not altered for the words altered are not material words Wild of Councell with the Defendant said the issue was altered by alteration of the words for the Action is brought upon a special promise and not upon a promise in Law as the altering of the words have made the promise to be and therefore it is a material alteration Roll Iustice said it is a material thing that is altered and it ought not to be amended An Actual promise and a consideration continuing Amendment cannot be taken to be at another time Hodg and Vavisors case 14 Iac. Barton and Shurlyes case Mich. 15 Car. And therefore give new rules to plead and so proceed according to the course to a new tryal VVolverly Strachy against Trin 24 Car. Banc. Reg. VVOlverly Strachy brought an Action upon the Case against the Defendant Demurrer upon a plea in an action for scandalous words Plea declared that whereas she was a woman of agood fame and honest reputation c. The Defendant spake these words of her viz. she is a common Whore and I will prove her one by reason whereof she lost her credit and reputation and her mariage The Defendant pleaded that she was not of an honest reputation at the time when he spake these words of her as is alleged in the Declaration The Plaintiff demurs generally to this plea. Iudgement was given for the Plaintiff except cause should be shewed Saturday next to the contrary Antea and the Lord Moone Trin. 24 Car. Banc. Reg. MY Lord Moone had a Sute commenced against him in this Court For a supersedeas for a Peer of the Realm Supersedeas Privilege and thereupon he moves by his Councel upon an affidavit that he was a Peer of the Realm and a Lord of the Parliament and therefore ought not to be sued and prayes for a supersedeas to stay the proceedings Roll Iustice Plead your privilege for upon an affidavit we will make no rule or else acquaint the other party that he is a Peer of the Realm and it is like he will forbear to proceed thereupon But you ought not to trouble the Court with such motions as these Cornish against Cowsye Trin. 24 Car. Banc. Reg. Trin. 23 Car. rot 1434. COrnish brought an Action of Debt against Cowsye an Executor Special verdict in Debt for rent against an Executor for arrerages of rent incurred part in the life of the Testator and part in the time of the Executor The Plaintiff declares upon a lease made by him to the Testator by
his Indenture made the first of May in such a year c. The Defendant pleads nil debet and upon this a speciall verdict was sound to this effect That the Plaintiff did upon the first day of May make the Indenture of lease to the Testator of the lands let to have and to hold a die datus for and during the term of 7 years from our Lady day last past from henceforth fully to be compleat and ended upon this verdict the question insisted upon by the Councell was whether there be not such a variance between the lease upon which the Plaintiff hath declared and the lease found in the verdict Variance that they shall be said to be several leases or whether it shall be adjudged one and the same lease Twisden for the Defendant held that there is such a variance between the lease in the Declaration and the lease found in the verdict that they cannot be the same and so the Plaintiff can have no Iudgement and he urged this ground of Law that a deed shall be so construed that all parts of it may be made to stand together if it be possible without forced construction of the words but this cannot be here and a Lessor may make a lease to begin when he pleaseth and end when he pleaseth notwithstanding the date of it and a lease made to begin at a day past doth begin in interest in present Lease for years though not in computation and he cited Musgraves case Hob. rep where two computations are in a lease for years and one is repugnant to the other the last shall be rejected Hales of Councell with the Plaintiff held that the lease begins in point of interest from the day of the date and that there is no variance or repugnancy between the lease mentioned in the Declaration and the lease found in the verdict and therefore the verdict is for the Plaintiff Roll Iustice said it would be hard for him to maintain it and said Presumption that in presumption of Law when a thing is to be done upon one day all that day is allowed to do it in for the avoiding of fractions in time Fraction which the Law admits not of but in case of necessity Hill 14 Jac. More and Musgrave Mich. 10 Iac. rot 76 in the Exchequer A Demise the 5 of May by Indenture dated the 4 of May habendum from the feast of the Annunciation last past for 21 years to have and to hold from the day of the date of these presents But there are other points in the Case at the Bar to be considered of for the Action of Debt is for rent part incurred in time of the Testator Detinet and part in time of the Executor and it is in the detinet which ought not to have been but I conceive that that is here helped by the verdict yet it is worth consideration VVaiver And he said that an Executor cannot waive a Term if he have not assets but if he have he may Another thing here considerable is that the Action is brought in the detinet and the Defendant pleads nil debet Yet he said that after a verdict it might be good enough for it is a Debt though the Action be brought in the detinet Trin. 10 Car. 1289. Porter and Iarvis Banc. Reg. and he said that the Plaintiff hath mistaken his lease yet I will advise by reason of the opinion in Musgraves case Hob. rep Lease Livery and Seisin It is a lease in computation of time from the sealing and according to the habendum a livery and seisin habendum a die datus delivered the next day is good if it be made by the party but it is questioned whether it be so if it be made by an Attorney An antient deed which cannot be proved shall be intended to be delivered the last hour of the day to make good the conveyance But I will take a little time to advise Raw against Raw. Trin. 24 Car. Banc. Reg. RAw had a judgement in an Action of Debt brought for arrerages upon an accompt in Newcastle upon Tyne against Raw Error to reverse a Iudgement in Debt upon arrerages of an accompt Venire the Defendant brought a Writ of Error to reverse this Iudgement and assigned for Error 1. In the issuing out of the venire it is not said to be per Majorem praedictum villae praedictae but per Majorem generally 2ly It is said ad re co cognoscendum insteed of recognoscendum 3ly It is said the Iury assidunt damna de praedict who is not named before for it is assidunt damna ipsius Katharinae Carr whereas she was before called Katharine Raw and so damages are given to no certain person for they have different names Roll Iustice said the surname Carr is void Damages and it shall be taken as if it had been said ipsius Katharinae only and that is good enough But examine the transscript by the Record whether the word be re co cognoscendum or not for if it be so it is not good Lovell against Knatchford Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 348. KNatchford had a Iudgement in the Common-pleas against Lovell Error to reverse a Iudgement for Error in the Postea Commission The Defendant brings a Writ of Error to reverse this Iudgement The Error assigned was in the Postea in that it is not said that the Iustice of Assise Associato sibi c. as it ought to be by the Statute Roll Iustice said the Iustice of Assise may have a special Commission to go the Circuit alone and then it must not be said so but if it be per formam Statuti it ought to be associato sibi c. But the Clark of the Assise may bring in his notes by which he made the Postea and amend it by them for it is his fault to make the Retorn so Amendment Trin. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to stand to an Award Plaintiff moves to discontinue his action Discontinuance The Plaintiff shewed to the Court that the Award made was not under hand and seal according to the submission and therefore he had no cause of Action and prayed that he might discontinue his Action Roll Iustice answered it is in an Award and I will do nothing in if but if it were upon a Debt it might be the Debt remains though the Award be ill but Iudgement is not demanded I will do nothing in it Newton against Bales Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 183. or 178. BAles had a Iudgement against Newton Error to reverse a Iudgement in an Act on on the Case in an Action upon the Case upon an Assumpsit in the Court at Owse-bridge in York The Defendant brings a Writ of Error to reverse this Iudgement and assigns these Errors 1. It is said the Defendant was to
said by the Councel on the other side that this matter ought not to be assigned for Error Error because it is against the Record on the other side it was inssisted upon that he may assign it for Error Roll Iustice said it may be assigned for Error but it is a Question how it shall be tryed for it is not upon a Demurrer and so the matter is not before us 11 Car. Smith and Smith And this cause ought not as it is to have been put into the Paper VVorsely against VVorsely Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 489. VVorsely brought an Action of Accompt against Worsely Demurrer upon a plea in an action of Accompt Bar. The Defendant pleads that the Plaintiff stands convicted upon the Statute made against Recusancy and demands Iudgement Si actio The Plaintiff demurs upon the Plea Wild of Councel with the Plaintiff said that this matter ought not to be pleaded in Bar of the Action but he ought to conclude only Iudgement if he shall be answered The Councel on the other side desired time to speak in it Roll Iustice Shew cause Monday next why Iudgement shall not be given against you Trin. 24 Car. Banc. Reg. THe Court was moved for the quashing of an Endictment upon the Statute of 8 Hen. 6. against forcible entries For quashing an Endictment County Liberty The exception taken against it was that the Endictment doth not shew in what County the forcible Entry was upon which the Endictment was grounded Roll Iustice answered if it be within a Liberty it is not necessary Trin. 24 Car. Banc. Reg. THe Court was moved to quash an endictment of Perjury against Stephen Burton The Exceptions taken to the Endictmment were these For quashing an Endictment of perjury 1. The Endictment is said to be taken in plena Sessione pacis and it doth not appear to be the Quarter Sessions as by the Statute it ought 2ly It is said that the Defendant dixit c. and doth not shew where or in what Plea he gave the evidence wherein the perjury was committed 3ly It doth not say that the Defendant gave the evidence corruptive as it ought to do 4ly The prejudice is not said to be ad grave damnum of any body and so no body being prejudiced by it none ought to be endicted for it Roll Iustice said it is not enough to say the Endictment was taken in plena Cessione generally but it must appear in what Sessions it was Therefore let cause be shewn why it should not be quashed It was afterwards quashed because it did not shew that any of the Iustices before whom it was taken were of the Quorum and not for the other exceptions Howard Trin. 24 Car. Banc. Reg. A Iudgement was given in an Action of Debt in this Court Error in the Exchequer-Chamber to reverse a judgement given in Debin this Court Bar. The Defendant brings a Writ of Error in the Chequer Chamber to reverse this Iudgement and removes the Record thither The Plaintiff brings an Action of Debt in this Court upon the Iudgement given here The Defendant pleads in bar of this Action Nul tiel record and upon this the Plaintiff demurs and the Court after motions and arguments on both sides was by the Plaintiffs Councel moved for Iudgement for him upon the Demurrer But Roll Iustice answered Iudgement If you will have a Curia advisare vult you shall have it if not take your course for the Record is not here before us Therfore we can give no Iudgement The King against Trigg Trin. 24 Car. Banc. Reg. THe Court was moved to quash a Presentment against Trigg for not going before a Iustice of Peace to take the Oath of an Headborow For quashing an Endictment for not being sworn a Headborow to which office he was chosen at a Léet The Exceptions taken against it were 1. That it doth not appear that any notice was given to him to go before the Iustice â—ly it appears not that the Iustice had authority to administer the Oath For the first exception the Presentment was quashed Collins against Page Trin. 24 Car. Banc. Reg. Mich. 23 Car. to 269. A Plaint was entred in the Court of Plymouth against Page for threescore pounds Error to reverse a judgment in Debt upon a Custom in Plymouth and a pone taken out against his Goods and upon this a default and thereupon another pone issued out to attatch the Defendants Goods and the Defendant at three other Courts successively makes default and upon the fourth default Iudgement was given against him Whereupon the Defendant brings a Writ of Error in this Court to reverse the Iudgement â—and assigns for Error that here is a Iudgement given before any appearance which cannot be but in this Case the Goods attatched are only forfeited for the default made by the Defendants non-apparance Forfeiture The Councel on the other side desired time to answer the exception Roll Iustice The Custom upon which this judgement is given is not reasonable Custom Therefore if you answer not the exception Tuesday next the Iudgement shall be reversed Skete against Clay Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 180. CLay brought an Action of Trespass against Skete for taking away his goods and had a verdict and a Iudgement in the Common Pleas. Error to reverse a Iudgement in Trespass Declaration The Defendant brought a writ of Error to reverse this judgement and the Errors assigned were to the Declaration because it had not proper latine words to expresse the goods for 1. it is said that the Plaintiff took away decem Velamins Anglice Coifes whereas Velamina signifies coverings generally 2. Pilum is used for Pileum in English a Cap. 3. Decem Colores Anglice Neckbands 4. Cruralia Anglice Garters 5. He declares de uno instrumento Anglice a Plate for a Iack. And 6ly Pro uno operimento Anglice a Rayl But Roll Iustice said We must not be too curious to expresse all things in Latin words in all Cases for it cannot be done Description and therefore a description with an Anglice must serve and so it may here therefore let the Plaintif have his Iudgement Aylet against Oats Trin. 24 Car. Banc. Reg. THis Case was moved again Error to reverse a judgement entire good in part and ill to other part and upon view of the Book Roll Iustice held that the Iudgement was entire and ought to be reversed for the whole although it be good in some part of it and he cited Trin. 14 Car. Scudamore and Scudamores Case 8 Car. Gritewel Morefields Case Trin. 11 Car. Eltonhead and Deerhams Case and Trin. 7. Iac. rot 566. Bird and Ormes case and 5. Rep. Specots Case and 13 Car. Dye and Atkins Case and upon these authorities the judgement was reversed Sir Charls Coot against Plunket Trin. 24 Car. Banc. Reg. THe Court was moved on the
or else let the Plaintif take his judgement Trin. 24 Car. Banc. Reg. A Copyholder being sued in this Court for certain lands moved that the Steward of his Lords Court For a Steward of a Court to bring in the Court Rolls to whom he was a Copyholder might be ordered to bring in the Court-Rolls into this Court that by them he may be the better enabled to defend his title to the lands But Roll Iustice said He cannot be ordered to doe it by this Court therefore we will make no rule in it Trin. 24 Car. Banc. Reg. AN Action of Debt was brought for Rent in the Common Pleas Error to reverse a judgement in the Common Pleas fortent Misnosmer where the Plaintif had a Verdict and a judgement and a Writ of Error was brought in this Court to reverse this Iudgement The Errors assigned were 1. There is an Indenture recited to be between the Plaintif and Iohn Barber whereas it should have been Iohn Barker Roll Iustice answered It may be that he is known by the one name and the other and then it is well enough A second Exception was It is said per indenturam signatam and doth not say deliberatam and then it is no deed if it be not delivered To this Roll Iustice answered Deed. If he say per factum suum it is well enough notwithstanding for that implies it to be a perfect deed 3ly He declares for Rent of Houses in Kent street and doth not shew in what Parish Kent street is Adjourned Trin. 24 Car. Banc. Reg. THe Court was moved for a habeas corpus for a Prisoner in the Kings Bench Prison that he might be a writnesse in a cause to be tryed at the next Assises in Darby Shire But Roll Iustice answered we will grant no habeas corpus for this is but a trick of the party himself to gain his Liberty that he may go a hawking and hunting this long vacation But I have known it granted for one to be a witnesse at a trial at Yield Hall but at the charges and peril of the Party for whom he was to be a witnesse if he escape Mich. 24 Car. Banc. Reg. VPon a motion for a habeas Corpus for one in Execution upon a sentence given against him in the Court of the Admiralty For a habeas corpus for one in Execution upon a sentence in the Admiralty It was said by Roll Iustice That if one be sued in the Admiralty to a sentence and be in Execution upon it and be brought hither by a habeas corpus if upon the retorn it doth not appear that the Admiralty had not jurisdiction of the cause but it appears only that they had proceeded to a sentence against the rules of their own Court This Court will not deliver the Prisoner out of Execution Appeal for he ought to have made his appeal before he was taken in Execution And so is it touching the proceedings in other Courts of equity Cage Mich. 24 Car. Banc. Reg. ONe Cage was in Execution in the Kings Bench upon a Iudgement had against him for a hundred pound To vacate a satisfaction acknowledged upon a Iudgement The Plaintiffs Attorney by fraud without the consent of his Clyent acknowledgeth satisfaction upon this Iudgement afterwards the Attorney of the Defendant without the consent of his Clyent acknowledgeth another Iudgement for the same Debt The Plaintiffs Councel moved that the Defendant might be in Execution upon the first Iudgement and that the satisfaction acknowledged thereupon might be vacated Roll Iustice answered Commitment The Attorney ought to be committed for acknowledging the second Iudgement without Warrant But here are two frauds one of each side so that there is fraud against fraud and so the partyes are left to their remedyse one against the other but both the Attorneys shall be committed for their false practie And we will examine the whole truth of the matter Saturday next against Loveday Mich. 24 Car. Banc. Reg. THe Court was moved upon an affidavit that one of the Iurors that gave the verdict against the Plaintiff had a sute in law depending at that time with the Plaintiff and therefore that the tryal was not indifferent For a new tryal after verdict because a Iuror not indiste rent Challenge Tryal and therefore it was prayed there might be a new tryall But the Court said it could not be and asked the party why he did not challenge the Iuror for this cause at the tryal for want of which he had now lost that advantage Stradling and his wife against Boreman Mich. 24 Car. â—anc Reg. STradling and his wife brought an Action of Trespasse of Assault and battery Arrest of judgement in Trespasse Ioyn in Action and taking of a horse agianst Boreman and the Plaintiffs declare ad damnum ipsorum and have a verdict the Defendant moved in arrest of Iudgement and shewed for cause that the Baron and Feme cannot joyn in this Action but ought to bring severall Actions for the wrong done to each was severall The Iudgement was thereupon stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. AN Action upon the Case was brought for speaking these words Arrest of juogement in an action upon the Case He is gon and dares not shew himself for Debt and he is a Banckrupt for ought that I know the Plaintiff had a verdict the Defendant moves in attest of Iudgement that the words are not actionable because they are general and uncertain But the Court held that all the words taken together are actioanble but stayed the Iudgement for a week Mich. 24 Car. Banc. Reg. IVrors who appeared for a tryal at the Bar which fel off for want of a full Iury Iurors move for their charges prayed the Court they might have their charges because they came a great way and had attended long in town The Court answered them that it was their neighbours fault who did not appear that the tryal went not on for both the partyes are ready and if the cause had been tryed you should have had all your charges But now we can order nothing Mich. 24 Car. Banc. Reg. VPon a Retorn of a certiorari to remove an order of Sessions made against a Parish for not repairing of a high way Exception to an order and fine of Sessions Hales of Councel for the Parish took this exception viz. That the fine was set upon the Parish without any processe issued out against the Parish only upon a certificate of one of the Iustices of the peace made upon his own view that the way was not repaired and so the Parish was condemned before they were heard To this the Court answered That a Iustice of Peace may make a certificate upon his own view Certificate of the want of reparations of a Highway by the Statute Therefore bring a certificate that the way is repaired else we will do nothing for we
Feme being a Feme Covert could have no Corn of her own for it was her Husbands Corn and so there could be no stealing of her Corn. But the Court answered that in common intendment the Corn is hers and her Husbands Corn though in legal construction it be not so and the Scandal is great although it appear that the words were spoken by a Feme covert Therefore let the plaintiff take his Iudgement except cause be shewn to the contrary Iudgement was given the same Term because the last words were held to be accumulative Mich. 24 Car. Banc. Reg. THe Clark of the Errors in the Common-pleas attended here upon a rule of this Court Clark of Court ought â—oâ— to move the Court. Whereupon one of the Clarks of the Court gave notice of it to the Court and prayed he might be heard But the Court answered that Councel ought to move it and not be The King against Doctor Trigg THe Court was moved for Doctor Trigg to estreate the Fine into the Exchequer which was set upon him by the Court upon his conviction upon an informaiton preferred against him upon the Statute for practising Physick in London without a licence from the College of Physicians For the estreating of a Fine Hales of Councel with the College of Physicians moves it may not be estreated for it is not necessary and here the Iudgement is not only for the King but it is tam pro rege quam pro c. Fine Estreat and so part of the Fine doth belong to the Subject and for that part the Prosecutor may have a privy Seal here to recover it Estreat but if it be estreated into the Exchequer be cannot there have it and so he shall lose his reward and therefore he desired the Fine might be respited But the Court answered we cannot respite the Kings part nor the other part for there is an execution out for the whole Fine which cannot be stayed Heyford against Hobson Mich. 24 Car. Banc. Reg. HEyford brought an Action of Trover and Conversion against Hobson in the Common-pleas for taking away and converting of divers of his Goods and Chattels particularly named Arrest of judgment in Trover and Conversion and had a verdict The Defendant moved in arrest of Iudgement that the Declaration was incertain for amongst other things the Plaintiff in his Declaration declares for the taking de duobus castoribus Anglice Hats whereas castor is not a proper word for a Hat 2ly de uno servitio argenteo Anglice one silver Salt and there is no such word for a Salt but there is another proper Latin word for it viz. salinarium 3ly De duobus catenis Anglice two silver Dishes which is no word for a Dish much less a silver Dish Roll Iustice said one may describe a thing in a Declaration Declaration if there be not a proper word to express it and if it be so described that the Iury may know what is meant by it it is well enough But let the Iudgement be here be stayed for we will advise Wood against Clemence Mich. 24 Car. Banc. Reg. THis Case formerly viz. this Term moved and spoken to touching the validity of an Award made touching the fraight of a Ship Exceptions to an award was again moved and Exceptions taken to the Award 1. That the award is repugnant in it self And 2ly It is not final and so not good The Court answered if the Award be ill as of your own shewing it is then you have no cause of Action Iudgement Submission and so you cannot have Iudgement although the Defendants bar be not good and a submission made by one for himself and another is good to bind the party that submitted But move it again and we will advise in the mean time Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible Entry after the party endicted had pleaded To quash an endictment of forcible entry and a verdict against him Roll Iustice We must not be so curious in the framing of Endictments as to quash them for every small fault and in this Case it was said by him that if one interrupt a long possession by force and the other regain it with undue means an Endictment lies not against him for this for this is but vim vi repellere and after a verdict and before Iudgement upon an Endictment of forcible entry Restitution the party ought not to move for restitution Banister against VVright Mich. 24 Car. Banc. Reg. IN a Tryal at the Bar between Banister and Wright in an Action upon the Statute of 2. Ed. 6. for not setting forth of Tithes Lands free from tithes It was said by the Court that Tithes which lye not within any Parish are due to the King and that Lands must be parcel of a Parish either by prescription or by Act of Parliament and that Lands lying within a Forest and in the hands of the King do not pay Tithes although they be within a Parish Tithes but if the Lands be dis aforested and be within a Parish they ought to pay Tithes for their not paying Tithes being in the hands of the King is but an immunity for that time only Mich. 24 Car. Banc. Reg. A Baker was presented in a Court Leet for selling Bread under weight Arrest of judgement in an action for a Fine set at a Court leet Fine Amercement Presentment and a Fine set upon him and an action brought against him for this Fine and a verdict given against him It was moved in arrest of Iudgement that the presentment upon which the Action was founded was not good and so there was no ground of Action and so there ought to be no Iudgment But Roll Iustice answered that the Action is for the Amercement which is a collateral thing and the presentment is not now to be called in question if it be only avoidable for some fault in it but it were otherwise if the presentment were utterly void But speak again to it at another time Mich. 24 Car. Banc. Reg. THe Court was moved for a Habeas Corpus for one committed at Norwitch for Treason in speaking words against the Queen For a Habeas corpus to remove a Prisoner committed for Treason Endictment Tryal because be could not be tryed there Roll Iustice answered he cannot be endicted here except the fact were done in Middlesex therefore advise with the Kings Councel and prefer a Bill of Endictment where the fact was and then you shall have a Writ ad delibrandum directed to the place where the fact was and this is at the Kings sute and the Sherif shall be allowed his charges upon his accompt or else the Iustices may try him by their Commission of oyer and terminer Smith and Hancock and others Mich. 24 Car. Banc. Reg. SMith brought an Action of Trespass against Hancock and others For a new tryal
a verdict and upon the Defendants motion the Iudgement was former y stayed The Plaintiff moves for Iudgement notwithstanding for that the words are actionable The Court said the words are scandalous and by them he is disgraced in his Trade Hales of Councel with the Defendant said that there were other words in the Declaration which are not actionable and yet dammages are given for both Dammages which ought not to be and therefore no Iudgement could be given The words said not to be actinable were these Have a care and do not trust him for he will run away and pay you nothing But the Court held that both the words taken together are actionable and ruled the Plaintiff to have his Iudgement for both the words if better matter be not shewed Nelson against Tompson Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 343. NElson brought an Action of Debt against Tompson upon an Obligation with a Condition to save the Plaintiff harmless Demurrer to a replication in Debt upon an Obligation The Defendant pleaded non damnificatus The Plaintiff replyed and shewed a breach on the Defendants part whereby he was damnified The Defendant demurs to the replication and for cause shews that the breach was assigned to be at Westminster Place and doth not shew in what County Westminster is The Court held that though Westminster be a City yet it ought to be shewed in what County it lyes because it is not a County of it self Therefore advise what you will do for the Action is fit to be discontinued Discontinuance Thyn against Thyn Mich. 24 Car. Banc. Reg. LAtch moved again in this case that the Summons doth not appear upon the retorn to be well made Whether a Summons well retorned for it is not said to be made at the Church-dore as the Statute directs To this nothing was answered But Bacon Iustice said the retorn was naught for another reason and so there is no Record before us to proceed upon in the Writ of Error the fault is this The Custos brevium ought to make the retorn here and it is mentioned to be made per unum deputatorum suorum Retorn whereas his Deputy had no authority to do it Therefore you had best to take a new Writ of Certiorari and certifie the same matter by it and this the Court may grant though it be very rare for if one will assign an Error in a Record and pray a Certificate and nothing be done upon it we cannot proceed Consider which way you can help this fault Tracye against Poole Mich. 24 Car. Banc. Reg. TRacye brought an Action upon the Case against Poole upon a promise Arrest of Iudgement in an action on the Case upon a promise and declares that Poole the Defendant in consideration of a mariage to be had between the Plaintiffs son and the Defendants daughter of setling so much Land upon him upon the mariage He did assume and promise that within such a time after the mariage had he and his Son should be bound per scriptum suum debita juris forma fiend unto the Plaintif for the payment for 3000 l. for a mariage portion assigns the breach that the Defendant his son did not become bound per scriptum suum Obligatorium for the payment of the 3000 l. and for this he brings his Action The Plaintiff had a verdict The Defendant in arest of Iudgment moves that the breach was not well assigned Breach for the Assumpsit was that the Defendant and his Son should be bound per scriptum suum debita juris forma fiend and the breach is that they did not give security per scriptum suum Obligatorium which agrees not with the Assumpsit for the Defendant might give security by a Iudgement which is not scriptum suum yet it is debita forma juris factum upon this the Iudgement was for that time stayed though then Bacon Iustice enclined that the breach was well assigned because in common construction it shall be intended that the Defendant assumed to give his own and his sons bond for security Hales of Councel with the Plaintiff at another day moved for Iudgement and held that the breach was well assigned for that it expresseth the substance of the promise though not the very words of it and this was held good 7 Car. in Michill and Cars case 2ly If the meaning of the promise be considered it will appear that the Defendant and his Son were to be bound by Obligation 6 Car. Courtny and Gavills Case and indeed the promise cannot be satisfied by any other way than by an Obligation for a Iudgment or a Statute will not do it for by them he is not said to be bound and though all this be admitted against me yet it is now after a verdict and the Iury have found the breach Maynard for the Defendant argued that the breach was not well assigned for the breach assigned tends to a personal engagement for paying the 3000 l. which is not so expressed in the promise but only a general security to be given for the monies and a recognisance and a judgement are not properly scriptum as in 9 Car. Goldsmith and Sydners Case and the Declaration doth not set forth the death of Sir Henry Poole by whom the security was to be given and so it cannot appear whether he had a convenient time to do it as he ought to have and he held that the Plaintiff was bound to do the first act viz. to tender the Obligation to the Defendant or else he is not bound to seal and deliver any Request and also he ought to make a particular request to him to seal and deliver it Hales replyed if a man plead a Statute it is true that he ought to say per scriptum suum Pleading but pleading ought to be more nice than common parlance 2ly The living of Sir Henry Poole is expressed and there appears time convenient between the promise and the time of his death for performing of it 3ly It is not necessary for us to tender a bond but the other ought to have done it at his own perill for it is to be done at his charge and not at ours Roll Chief Iustice held that Iudgement ought to be given for the Plaintiff and said that for the laying of the promise it is not necessary to pursue the very words of the promise but the substance so that there may appear to the Court that there is cause of Action 2ly He held that there is no variance in the substance for the intent of the parties is to be considered which was to have another act done by Sir Henry Poole and his Son per aliquod scriptum and not by a verbal promise and we are to consider if the breach assigned agree to this and he held that the promise will extend to a Iudgement or a recognisance for a Iudgement Statute or Recognisance
between what the Law directs and what the devise directs all the difference is in the manner how his Son Iohn shall come to the Estate 3 4 Phil. Mar. Dyer 134. 37 Eliz. A man seised in fee had issue two Daughters and devised the Lands to them and to their Heirs and it was questioned whether they were Ioynt tenants and I conceive they are and where one omits a thing in a conveyance which the Law supplies this shall not hurt and he cited Iennings and Pollards Case 6 Car. Hales on the other side argued that the Son takes by purchase and not by descent for the devise is not to the Son in present but after the death of the Testators wife and if he had the Lands by descent he should have them presently VVaiver It is true the Son might have waived the taking by purchase and might have taken by descent but here prima facie he shall be intended to be in by purchase and not descent for here doth not appear to be any actual waiver of the purchase and the Son doth here as I conceive take by way of remainder and not by way of reversion And as to the verdict I conceive it is not good for it doth not shew how the lands are held whether in Chivalry or Socage and so it appears not whether the Testator had power to devise all of them or not for if they be held in Chivalry he can devise but two parts of them as the Statute directs 2ly It appears not that the Testator had but one Son by his first wife 3ly It is not shewed that the Lands are parcel of the Mannor 4ly It doth not appear in whose possession the Lands are Roll chief Iustice said Lands that are given by Will shall be intended to be socage tenure Intention if the contrary do not appear And he held that the devise is void and that it is not in the power of Iohn the Son to make the election to take by descent or by purchase at his pleasure but he must of necessity take the Land as the Law directs which is by descent Maxim and it is against a maxim in Law to give a thing to such a person to whom the Law gives it if it had not been so given 3 4 Phil. Ma. Dyer 134. and therefore the Plaintif ought to have Iudgement And as to the verdict he hath primer possession Verdict and therefore if the other make no title the verdict is for him and good enough Bacon Iustice to the same intent viz. that the Heir doth here take by descent and not by purchase for this the Law says and he cannot alter it and cited Foscues Case 4 Car. and a Case in 7 Iac. And so judgement was given for the Plaintif Franck against Burt and others Mich. 24 Car. Banc. Reg. THe Plaintif brought an Action of Trespass for breaking of his House For costs for the Desendant upon non-sute of the Plaintif and carrying away his Goods at the Tryal the Plaintif was non-sute The Plaintif moved that there was error in the Declaration and therefore there could have béen no Iudgement and prays that he may be spared costs Roll chief Iustice answered that heretofore it hath been made a question whether the Plaintif being non-sute should pay costs Cests but since the Statute of 4 Iac. it is clear he ought to pay costs for the vexation of the Defendant and so it hath béen ruled here and you are out of Court now by being non-sute and therefore you must pay costs And therefore except better matter be shewed let them be paid Mich. 24 Car. Banc. Reg. THe Court was moved for a Prohibition to the great Sessions of Carnarvan in Wales to stop a sute in an English Bill of Equity exhibited there For a prohibition to the great Sessions at Carnarvan in Wales whereas by the Bill it appears there is no matter of Equity in the Case but only matter tryable at the Law The Court answered if they proceed there against Equity we cannot hinder them There was wont to be an Agent here from the Commissioners there for us to confer with in such cases as these but it seems there is not any here now Therefore give notice Prohibition and let them shew cause the next Term why a Prohibition should not be granted Mich. 24 Car. Banc. Reg. VPon reading of a retorn made by the Sherifs of the City of Norwitch upon a Habeas corpus directed unto them for one Chambers It was said by the Court How a Habeas corpus to an inferiour Court should be retorned Retorn that it hath been ruled That upon a Habeas Corpus to an inferiour Court to remove Corpus cum causa they ought to retorn all the causes that are depending there concerning the party that hath the Habeas Corpus if any of the causes depending be for above five pound of which they ought not to hold Plea and therefore because all the causes were not retorned here upon the retorn of this Habeas Corpus The Court held the retorn was not good and ordered that it should be amended upon pain of ten pounds by Monday next Raph against Davye Mich. 24 Car. Banc. Reg. RAph brought an Action of the Case against Davy for speaking these words of her to the Plaintifs mother Arrest of judgement in an action for words viz. Your Daughter innuendo the Plaintif is a brazen faced Whore and deserves to be hanged and for speaking these other words to the Plaintif herself viz. you Huswife are a Thief and have stollen my Purse The Plaintif had a verdict The Defendant moved in arrest of Iudgement Averment that the Plaintif doth not aver that her Mother had not any other Daughter besides herself and so it is uncertain whether the words were spoken of her or no. But the Court held it was well enough without such averment because the Declaration is that the Defendant habens colloquium of the Plaintif did speak the words and that makes it certain enough And therefore bid the Plaintif take her Iudgement Jennings against Lee. Mich. 24 Car. Banc. Reg. IEnnings brought an Action of Assault and Battery against Lee. The Defendant pleads a special plea Arrest of Iudgement in an action of assault and battery and justifies The Plaintif replies de injuria sua propria and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that the replication was not good because it answers not the special matter pleaded nor takes any traverse by an absque tali causa as it ought to do and so there is no issue joyned and consequently there can be no Iudgement Roll chief Iustice said that the replying de injuria sua propria Traverse Issue Ieofails and not traversing absque tali causa is not good for there is not an affirmative and a negative and so
was committed 3ly It is said intulit and expulsit in the singular number Endictment whereas it should be intulerunt and expulserunt in the Plural number because the Endictment is against divers and so it is false Latin 4ly False Latin The Endictment uses the word lignum for the tymber of the house whereas it should be maremium Twisden on the other side answered that the Endictment was good at least to the Assault and Battery though it fail in the other particulars The Court ordered the Defendants to plead to it and would not quash it Mich. 1649. Banc. Sup. THe Court upon the retorn of a Sheriff of a rescous made To quash a Rescous and read was moved to quash it for these exceptions taken to it 1. It is said feci warrantum meum Thomae Tayler and doth not say that Thomas Tayler was his Bayliff 2ly He doth not say for what cause he made his Warrant Warrant and so it appears not whether it was lawfull or not Vpon these exceptions it was quashed Mich. 1649. Banc. sup Vaux and Vaux against Steward VPon a verdict found for two Plaintiffs in an Action upon the Case upon an assumpsit Arrest of Judgement in an action upon an Assumpsit Ioyn in action The Defendant moved in Arrest of Iudgement and for cause shews that the Plaintiffs ought not to have joyned in the Action but ought to have brought several Actions The Case was this the several Cattel of the two Plaintifs were distreyned The Defendant upon consideration of ten pounds paid unto him by the Plaintifs did assume and promise unto them to procure the Cattel to be re-delivered unto them and because they were not re-delivered acordingly they brought their Action joyntly Promise entire Roll chief Iustice said the promise here is entire for the consideration is entire and so the Action may be joyntly brought Yet let Iudgement stay till the other move Postea Mich. 1649. Banc. sup IN a Tryal between Cave and Osby Observations upon a Tryal Presentation Licence Grendons case 11 Rep. Impropriation Vicarage for not setting forth of Tithes according to the Statute of 2 Ed. 6. These things were delivered by the Court. 1. That the King may present to a living by a Letter but it is a question whether he can do it by paroll 2ly There ought to be the Kings licence to make an appropriation of a Church and to endow a Vicar 3ly The King cannot make such a licence without matter of Record and it ought to be with a Condition to endow a Vicar and the endowment of the Vicar may be by a distinct instrument from the appropriation so that it be made at the same time when the appropriation was Mich. 1649. Banc. sup IN the Case of one Wright Robbery of the servant may be robbebery of the Master Robbery brought upon the Statute of Hue and Cry Roll chief Iustice said that if a mans Servant be robbed of his Masters Goods in the sight of his Master this shall be taken for a robbing of the Master And if one cast away his Goods to save them from a Robber and the Robber take them up and carry them away this is a robbery done to his person Coles against Sibsye Mich. 1649. Banc. sup Trin. 1649. rot 148. COles brought an Action of Trover and Conversion against Sibsye The Defendant pleaded the Statute of Limitation of actions in bar of the Action A Latitat in nature of an original The Plaintif replies that he took out a Latitat out of this Court against the Defendant within the time limited by the Statute which yet continues depending Roll chief Iustice said a Latitat out of this Court is in the nature of an original in the Common pleas and so hath been alwaies held to be Original Adjourned Mich. 1649. Banc. sup THe Court was moved to quash divers Endictments against the Inhabitants of the Parishes of Shoreditch and Hackney in Middlesex To quash Endictments of Parishes for not repairing the high way for not repairing the High ways The exception taken was that the Parishes are joyntly endicted whereas their offences are several and also not equal and yet both fined alike The Court quashed the Endictment and discharged the issues which were not returned but not those that were retorned Gardner against Jollye Mich. 1649. Banc. sup Pasc 1649. rot 189. IOllye brought an Action upon the Case against Gardner for causing him to be endicted of Felony as accessary Error to reverse a judgement in an action on the Case for suffering a Prisoner to escape that was convicted of Felony The Plaintif had a verdict and a judgement The Defendant brought a Writ of Error to reverse this judgement and the error assigned was that the party was endicted for a matter which is but a Trespass and not a Felony and so the Declaration is mistaken and an Action upon the Case lyes not Case But the Court answered that the charge of the Endictment is for Felony although the matter the party is charged with be not Felony and a scandal lay upon him by it and therefore the Action lies Vaux and Vaux against Steward Mich. 1649. Banc. sup THe Case between Vaux and Vaux and Steward Arrest of judgement in an action upon an Assumpsit was again moved in arrest of Iudgement The objection made was that the promise made amounted to a double promise and therefore the parties to whom the promise was made ought to have brought several Actions and not to have joyned in the Action as they have done But to this it was answered by the Councel on the Plaintifs part that the promise is entire and is not double for the consideration of the promise is entire viz. the ten pound which moved from them joyntly and not severally Roll chief Justice held Ioynt promise that it is an entire promise and a joynt consideration though the Cattel taken were several and therefore the Action may be joynt and if one lay out mony for a thing assumed to be done for a third person if it be not done an Action shall be brought upon the Assumpsit by him who layd out the mony Rippon and â—ortons case f. 1. but because a Case was cited out of Yelvertons Reports to be against the opinion of the Court therefore the Court ordered the Councel to bring that Case and in the mean time they would advise Antea Mich. 1649. Banc. super Christopher against How CHristopher brought an Action on the Case upon an Assumpsit against How an Executor Arrest of Iudgement in an Action upon the Case and declared upon a promise made by the Testator to the Plaintif to deliver certain goods in the possession of the Testator unto the Plaintif upon request and because the Testator had not delivered them accordingly the Plaintif brings his action The Plaintif had a verdict The Defendant moved in arrest of Iudgement and
against Harington for arrerages of rent due to him as Lessee of a Vicarage Arrest of judgement in Debt for arrerages of an annuity Debt Annuity and upon nil debet pleaded there was an Issue joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that an Action of Debt did not lye but that he ought to have brought a Writ of Annuity because it was for arrerages of an Annuity which yet continnes and 6 H. 4.7 9 H. 6.94 were cited The Iudgement was arrested till the Plaintif should move Compton against Allen. Mich 1649. Banc. sup Entred Trin. 1649. rot 348. COmpton brought an Action of Covenant against Allen his Lessee for years upon a Covenant of the Indenture Demurrer upon a Plea in an action of Covenant for not keeping the House let unto him in repair The Defendant pleads that the House was burnt by casualty The Plaintif demurs to this Plea and for cause shews that the Plea was contrary to the Defendants express Covenant by his Deed and therefore was not good Roll chief Iustice said that a Lessee that covenanteth to repair Covenant ought to do it if the House be burnt be it by negligence or by other means Therefore let the Plaint if have Iudgement except cause shewed to the contrary against Phillips Mich. 1649. Banc. sup AN Action upon the Case was brought against Phillips for suffering one to escape Arrest of judgement in an action upon the Case Escape The Plaintif had a verdict The Defendant moved in arrest of Iudgement and for cause shews that the Declaration was insufficient For 1. it shews that the party was arrested that made the escape but it doth not shew by what process he was arrested 2ly The Declaration saith that he was arrested virtute Querelae which cannot be for he is arrested by virtue of the Writ and not of the Plaint 3ly The Declaration doth not shew by what authority the Prison was kept out of which the escape was made Escape Roll chief Iustice said that the second exception was material and then if the party be not well arrested there can be no escape and so the Action lyes not Therefore nil capiat per billam if cause be not shewed to the contrary Iohnson against Abington Mich. 1649. Banc. sup IOhnson brought an Action of the Case against Abington and declared Arrest of judgement in an action upon an Assumpsit that the Defendant in consideration that the Plaintif would deliver unto the Defendants Son such wares as his Son should desire did assume and promise unto the Plaintif that he would pay the Plaintif for them and avers that he had delivered certain wares unto his Son and that the Defendant did refuse to pay for them and for this he brought his Action The Defendant pleads non Assumpsit and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of judgement and for cause shews that it doth not appear Averment that the Son of the Defendant did desire the Goods that the Plaintif delivered unto him and for which he brings his Action and the Assumpsit being to pay for such as his Son should desire the Declaration ought to set forth an actual desire of the Son to have the wares delivered But Twisden of Councel with the Plaintif answered that the delivery of the commodities by the Plaintif and the acceptance of them by the Defendant implyed a desire and it is not necessary to shew an actual desire Ierman Iustice said there ought at least to be a verbal desire But Roll chief Iustice said that the acceptance of the wares is an actual desire and that is more than a verbal desire Declaration Assumpsit and it is not necessary here to affirm the punctual words of the promise but only the substance of it And therefore let the Plaintif have his Iudgement if better matter be not shewed Mich. 1649 Banc. sup VVAlker moved to quash an endictment against the Inhabitants of Mile-end To quash an Endictment within the Parish of Stebenhoth for not repairing the high way and to take off the issues upon a Certificate read that the way was repaired and upon this exception taken to the Endictment viz. that the Inhabitants of Mile-end within the Parish of Stebenhoth are endicted and Mile-end is but a Hamlet within a Parish and a Hamlet within a Parish cannot be charged to repair a high way except it be by prescription or for some other special reason for of common right the whole Parish is charged with it Common right High way and here is no such prescription or particular reason shewed in the Endictment and therefore it is not good Roll chief Iustice answered that of common right a Hamlet is not so charged but a vill is and therefore let it be quashed but the issues shall stand for few will repair the high way till they be forced Fines against Dell. Mich. 1649. Banc. sup FInes brought an Action of Debt upon an Obligation to perform certain Covenants contained in an Indenture Demurrer to a Plea in Debt upon an Obligation to perform Covenants Plea The Defendant pleads performance generally The Plaintiff demurs to the plea and for cause shews that divers Covenants are comprised in the Indenture and that some of them are in the Affirmative and others of them are in the Negative and therefore a general pleading of performance to all is not sufficient for as to the Covenants in the Affirmative he ought to plead a special performance and to shew how he hath performed them The Court bid the Plaintif take his judgement except cause be shewed to the contrary Mich 1649. Banc. sup THe Court was moved that there might be a rule of Court for the party upon satisfaction made of a judgement obtained by him For a rule to acknowledge satisfaction to acknowledge satisfaction But the Court denyed it and said there was some trick in the businesse For no doubt but the party upon receipt of what is due to him will acknowlege satisfaction without a rule to compel him Crible against Orchard Mich. 1649. Banc. sup Entred Trin. 1649. rot 30. ORchard brought an action of debt against CRible upon an Obligation Error upon a judgement in debt upon an Obligation the Defendant pleaded per minas upon this an issue was joyned and a Verdict and a Iudgement given in the Court at Barnstaple for the Plaintif and upon a Writ of Error brought three Errors were assigned 1. That the Declaration was insufficient 2ly The Common Error 3ly That the Venire was not good but these were over-ruled And Roll chief Iustice upon Oyer of the Record found this Error That the Iury in the assessing of damages say pro missis Custagiis c. but doe not not say circa sectam et expenditis Damages Iudgement and so it cannot appear for what the costs
with the Plaintif wherein the Action being an Action of Trespass for taking away wheat rye and wood upon an Elegit taken out against a Parson The Question was Whether Tithes are extendible upon an Elegit by the Statute or not And he held that they are not extendible first by the Common law confirmed by Mag. Charta they are not extendible Extent Cook upon Magna Charta 37 N. Brev. 227. Tithes are méerly Spiritual things and exempt from all Lay consideration 11 Rep. 14. Pridle and Nappers case Cawdries case 5 Rep. f. 15.35 H. 6.39 where rights of Tithes are in dispute the Common Law shall take place but not where the Tithes themselves are in dispute Seldens History of Tithes cap. 14. 2ly The Statute of Westminster makes no alteration of the Common law in this point and non usage is a good argument to prove it for if they had béen extendible it would sometime or other have been put in practice and by the express words of the Statute of Westminster the 2d Tithes are excepted and the process usually before that directed to the Bishop for sequestration is not taken away by the Statute of 5 Ed. 3.53 N. Brev. 66. Though it be a freehold yet is it not within the Statute and if it be within the words of the Statute yet is it not within the meaning of it as Cook upon the Stat. of Wesim 2. doth prove 35 H. 5.50 9 E. 2. Clergy men antiently were not included in general Acts of Parliaments because the Church was accompted as an Infant alwayes within age Clergy and so favoured and protected by Law Next the late Ordinance of Parliament hath made no alteration in this case for the Ordinance intended not to punish the Parsons of Churches although it doe out Bishops of their Bishopricks and dignities And as to the Objection That if the Tithes should not be here extendible there would be a failer of justice I answer That our case is out of the Common law upon which the rule that extraordinary courses are to be taken rather than there should be a failer of Iustice is grounded Roll chief Iustice said that there are two Questions in this case 1. Whether Tithes are within the Statute 2ly Whether now that Bishops are taken away by the Parliament the Sherifs may levy the debt of the Clergy as the Bishops used to doe and I conceive they may Levari by a levari facias But the great question is Whether the Elegit lye And the Court inclined it did But you will argue it again therefore we will deliver no opinion in it Elegit And the Court clearly held with Mr. Selden That Tithes are not due jure divino and directed to search presidents Tithes if a Recognisance had ever been extended upon Tithes Cane against Golding Mich. 1649. Banc. sup CAne brought an Action upon the case against Golding for slandring his title by speaking these words viz. His right and title thereunto is naught Arrest of Judgement in an action upon the case for slandering the Plaintifs title and I have a better title than he The Plaintif had a verdict The Defendant moved in Arrest of Iudgement that the words were not actionable Twisden of Councel with the Plaintif argued that the words are actionable for though the words spoken of themselves may not be actionable yet here they are alleged to be spoken falso et malitiose and that will make them actionable 43 B. 3. f. 33. N. Br. 95. Hob. Rep. Water and Freemans Case and as to the Objection that is made that the Declaration is only quod fuit verisimilis vendere and that he was hindered by the words and therefore there might have béen no bargain made though the words had not been spoken The answer is That it is well enough set forth as it is for all treaties upon Contracts are but likely to procéed and are not certain till the Contracts be made but which is more it is further alleged here that by reason of the speaking of these words he could not receive his Tithes which is an express loss Hales for the Defendant argued that the words of themselves are not actionable although they be said to be spoken falso et malitiose except a special damage be alleged to come to the party for such words as these differ from words that are spoken of the person of a man And though there be damage yet they are not scandalous for the Defendant claims a title as well as the Plaintif and the saying that the words were spoken falso malitiose doth not make them to be so spoken nor makes them actionable if they be not so in themselves Roll chief Iustice said there ought to be a scandal and a particular damage set forth but it is not so here But move it again Saturday next Postea White against Holford Mich. 1649. Banc. sup Trin. 1649. rot 1214. A Writ of Error was brought upon a Iudgement given in an Action of Debt upon an Obligation to stand to an Award and the Error assigned was Error to reverse a judgement in Debt upon an Obligation that the Arbitrement exceeded the submission for the submission was to stand to the award touching all matters in difference between the parties and the award was that the parties shall make general releases each to other of all demands and the word demands is a word of a larger signification than the word differences Award But Roll chief Iustice answered That if the release be more large in words yet it is good enough for it shall be intended only of all matters in debate between the parties and if there be other matters you ought to have shewn them in pleading otherwise the Court will not intend there are any to which the other Iudges agreed and gave judgement for the Plaintif except better matter should be shewn Brooke against Brooke Mich. 1649. Banc. sup Mich. 24 Car. rot 287. BRook brought an action of trespass quare clausum fregit for eating of his grass with Cattel Error to reverse a judgement in trespass quare clausum fregit c. against Brooke Vpon Not guilty pleaded an issue was joyned and the Plaintif had a verdict and a judgement The Defendant brought a writ of Error to reverse this Iudgement and assigned for Error that the Declaration was incertain For the Plaintif declares of breaking his Close and eating his grass cum quibusdam averiis and doth not say what Cattel and so he may recover damages in this action and bring another action for the same trespass because it cannot be known what Cattel did the former trespass Barr. Averment Hales of Councel with the Defendant said the Declaration was good enough for it is good in substance although it might have been better in form and it being after a verdict the incertainty is helped And the Defendant if the Plaintif should bring a new action for
this trespass may plead by averment that he hath satisfied the trespass don already and aver with what Cattel it was done Jerman Iustice said the beasts ought to be named particularly for averia is a large word and signifies cattel of divers kinds and it is too general a word to declare upon But Roll chief Iustice answered where the thing it self is in demand and an action is brought for it as it is in an action of trover and conversion the thing ought to be particularly named but here the action is brought for damages for breaking his Close and eating his grass And if you had demurred to the Declaration Demurrer it had not been a good Demurrer but now it is after a Verdict which makes it stronger against the Defendant Nicholas and Ask Justices concurred with Roll so the Iudgement was affirmed Mich. 1649. Banc. sup THe Court was moved for a Prohibition to the Admiralty upon a surmise that one was arrested there for rescuing one out of the hands of a Messenger of the Admiralty For a Prohibition to the Admiralty who was taken by him by the warrant of the Court Contempt for a contempt to the Court in a sute depending there betwixt him and another Roll chief Iustice answered if the cause were maritine which was depending there the Court may examine a contempt to the Court in that cause but they cannot procéed criminally against the party that rescued him that did the contempt Therefore give them notice that they shew cause why we should not grant a Prohibition Prohibition Ireland against Michelborn Mich. 1649. Banc. sup Entred Mich. 24 Car. rot 111. MIchelborn brought an Action of Trespass against Ireland Error to reverse a judgement in Trespass vi et armis quare vi et armis clausum suum fregit and for driving and beating his Cattel The Plaintif had a Iudgement the Defendant brought his writ of Error to reverse this Iudgement The Errors assigned were 1. That it appears not by the Continuando how long the Trespass continued 2ly There is a discontinuance to part of the plea and a departure also Discontinuance Windham in answer to the first Exception said that it is diversis diebus et vicibus and it is without an usque and the continuance is but in aggravation of the Trespass and the Action it self is for the first Trespass which is the original and the diversis diebus et vicibus shall be intended before the Action brought 20 H. 6. f. 15.35 H. 6. s 4. Hob. rep 377. and the party may well enough averr in another Action brought for this Trespass that the Plaintif had recovered for it in an action formerly brought and for the new assignment he said it was but as a new Declaration But the Court bid the Defendant in the writ of Error advise concerning the second exception Roll chief Iustice said he believed the case cited out of Hobard was not well printed but something left out for it hath been ruled that after a verdict it is good enough to say one had imprisoned him for a long time but here is a Iudgement upon a nihil dicit which will alter the Case Ierman Iustice said it was considerable and fit to be advised on Holhead of Councel with the Plaintif in the writ of Error took another exception viz. that there was an issue joyned as to the beating of the Cattel and that is not tryed nor continued and yet damages are given entire for the chasing and beating of the Cattel Harris against Gibbons Mich. 1649. Banc. sup Pasch 1649. rot 303. GIbbons brought an Action upon the Case against Harris upon an Assumpsit Error to reverse a judgement in an Action on the Case and declared that the Defendant in consideration that the Plaintif should let unto the Defendant a Booth in Sturbridge-fair did assume promise to pay the Plaintif ten pound for the same and to pay the Plaintif for all such Wine and Hops as should be spent in the Booth during the Fair. The Plaintif had a Verdict and a Iudgement The Defendant brought a writ of Error to reverse this Iudgement and assigned this Error that it did not appear in the Declaration that the Fair was ended when the Action was brought and consequently that there was cause of Action But Twisden of Councel with the Defendant in the writ of Error said it shall be intended it was ended for the standing there during the Fair is the cause of Action Declaration Notice Roll chief Iustice took another exception That the Declaration doth not express that the Plaintif gave notice how much Wine and Hops he laid into the Booth during the Fair nor that he made any demand of the payment of any sum of money due and so the Defendant could not know how much money he should pay and therefore the Declaration is not good because it is too general Therefore advise whether you will maintain it or no and because the Councel desired not to be farther heard in it the Iudgement was reversed Mich. 1649. Banc. sup AN Action of Covenant was brought upon an Indenture for the payment of a certain sum of money at a certain time Arrest of Judgement in an action of Covenant The Defendant pleaded payment at the time and upon this an issue was joyned and a Verdict found for the Defendant The Plaintif moved in arrest of Iudgement and alleged for cause that the Issue was mis-joyned because the place of the payment was not alleged which is material and so there can be no Iudgement Maynard for the Defendant moved for Iudgement and said that the issue was well joyned and that it was not material to allege the place of payment because it is a personal Action and the place shall be intended where the Action is brought 1 E. 5. f. 3. And here he cannot allege an immaterial place and so it must necessarily be intended to be where the Action is brought Roll chief Iustice If you will argue it put it in the Paper But there is a difference between finding the money paid and the finding it not paid Denoir against Oyle Mich. 1649. Banc. sup VPon a Rule formerly made in this case to shew cause why a prohibition should not be granted to the Court of Policy for assurances For a Prohibition to the Court of policy for assurance Hales opened the case as formerly had béen done and prays that there may be a Prohibition granted because the party may have remedy here as well as in that Court and so this Court ought to be preferred and the contract here hath no relation to merchandizing and so it doth not properly belong to that Court Serjeant Glyn of Councel with the Defendant prayed that there might be no prohibition granted because it hath not béen known that even such a prohibition was granted and he recited the Statute made for assurances of 43 Eliz. and said this
Case was within that Statute and is to be tryed by the Court of Policy and that this case doth properly concern merchandizing and is within both the Letter and reason of the Law And by the words of the policy it appears plainly that the Contract concerns merchandizing the party ought not now to suggest the contrary against his own words in the policy Roll chief Iustice said the words of the policy are not material for the words may be false and the Contract may be for things not touching merchandizing notwithstanding and the intent of the Statute is for things merchantable and if it appear they be not so a prohibition ought to be granted Serjeant Glyn replyed Prohibition that the voyage depended upon the skil of the party whose life was assured by the policy and although the party were indebted and there were security given by bail for his debt to the intent he might goe the voyage yet this is within the Statute Roll chief Iustice answered This is a far fetch'd construction and we cannot avoid the granting of a prohibition but â—raw the suggestion and deliver it on Monday next and joyn issue and try it this term The Case in which this prohibition was moved for and granted was this Denoir and Oyle were baileâ— for one Captain Parr whose life was assured by the policy in a sute against him in the Admiralty brought by one Bushel for 100 l. for fraight due by Parr unto him Assurance and upon that Parr having part in a plantation in the Barbadoes and a quarter part in the ship he was to make his voyage and his life was assured by Denoir and Oyles who were his bail Weston against Plowden Mich. 1649. Banc. sup Rot. 505. THe Court was moved for time for Sir Edmund Plowden the Defendant to plead For time to plead because the Plaintif had declared against him by the name of Sir Edmund Plowden Knight whereas he is by Creation Count Palatine of Nova Albion and that is now part of his name and he must also plead a special plea. Roll chief Iustice answered he is also called a Count of Ireland and neither the one nor the other is part of his name as is suggested and therefore if you will plead in Chief take a wéeks time more for it otherwise plead at your peril for a Count Palatine of Nova Albion or a Count of Ireland are not additions in England Addition Mich. 1649. Banc. sup A Petition was presented to Commissioners of Sewers against one for obstructing a navigable River Against an Order of Commissioners of Sewers and prayed that the Commissioners would remove the obstructions upon which an Order was made by the Commissioners to make a view and to certifie the matter to them and upon this certificate a Iury was returned to enquire of the nusance and a verdict was given by the Iury upon Articles presented unto them to enquire of it This Order of the Commissioners and the procéedings thereupon were removed hither by a Certiorari and these exceptions were taken upon reading of the return 1. That it doth not appear by what authority the Commissioners did sit 2. The presentment made was not good for it is said that antiently the river was so and so and this is incertain 3ly The presentment is that they know not when the Mill was made which is supposed to be an obstruction and if the Mill were made beyond time of the memory of man the Commissioners have no power to enquire concerning it Roll chief Iustice Give notice to the Councel for the Commissioners of Sewers to answer the exceptions Wednesday next Shayler against Bigg Mich. 1649. Banc. sup Mich. 24 Car. rot 90. BIgg brought an Action of Trover and Conversion of a Horse Writ of Error brought by the bail and had a Verdict and a Iudgement The bail for the Defendant in the Action brought a writ of Error to reverse this Iudgement given against the principal The Court was moved to abate the writ The Court answered If the writ of Error be brought upon the principal Iudgement it ought to be abated It hath been a question heretofore whether a writ of Error brought upon the principal Iudgement Error and also upon the Iudgement given against the bail together be good in part and ill for other part But of later times it hath been ruled that it ought to abate for all Therefore let the party shew cause why the writ shall not be abated here Mich. 1649. Banc. sup THe Court was moved to quash an Endictment for a forcible Entry For quashing an Endictment upon these Exceptions 1. The party hath made no title 2ly The Endictment is not said to be found by the Iury but by the Iustices 3ly It doth not say that the force was contra pacem publicam as the late Act of Parliament directs but contra pacem reipublicae The Court answered it was a foul riot and deserved no favour yet the Endictment was quashed upon the 1 and 3 exceptions Dell against Brown Mich. 1649. Banc. sup BRown brought an Action of Trespass against Dell in the Common Pleas Error for taking away three Cowes and had Iudgement against him upon a nihil dicit The Defendant brought a writ of Error in this Court to reverse the Iudgement Entire damages The Error assigned was that for two of the Cowes there was no value declared and yet entire damages were given for them all which was not good Roll Chief Iustice This is a Iudgement upon a Nihil dicit and so there is no Verdict to help it Postea 136. Barber against Pomeroy Mich. 1649. Banc. sup Entred Hill 24 Car. rot 595. or 1095. BArber brought an Action of debt against Pomeroy for arrerages of rent due for 7. years and for 7. Capons the Defendant pleaded nil debet Arrest of judgement in an action of debt for rent upon this an issue was joyned and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and took this exception that the Plaintif of his own shewing had demanded more than was due so ought not to have Iudgement The Question here was Whether the Plaintif might not relinquish that part which is not due and have judgement for so much as is due Yard of Councel with the Plaintif held that he might Relinquishment and cited Godfryes case 11 Rep. f. â—5 b. and Hubbards case 4 Rep. and prayed for Iudgement Twisden of Councel on the other side prayed judgement might not be given and he agreed the cases cited by Yard and cited other cases of the same nature where the Plaintif may release part and have Iudgement for the rest But he said that here the thing is entire and cannot be apportioned for then he shall falsifie his own writ 1 Ed. 4.24 But Roll chief Iustice held Release Damages that the relinquishing of part is not the falsifying of his own writ
be used otherwise Barbarism will be induced and circumlocution ought not to be used where there is a proper Latin word to be had to express a thing Ask Iustice agreed with Roll the chief Iustice And the Plaintif was bid take his Iudgement except better matter were shewn to the contrary Hobson against Hudson Hil. 1649 Banc. sup HObson brought an Action upon the case against Hudson for speaking these words of her viz. She went to the Wells to be cured of the French Pox. Vpon Not guilty pleaded and a verdict found for the Plaintif Arrest of Iudgement is an action for words the Defendant moved in Arrest of Iudgement that the words are not actionable because they are incertain words and doe not express that the Plaintif had the French Pox at the time of the speaking of them and the causa dicendi shall not make them actionable Shaftoe on the other side said the words are actionable for these words thou hast been laid of the Pox have been adjudged actionable which are not so scandalous as these Mich. 7 Iac. Thou art a Pocky whore and the Pox hath eaten out the bottom of thy belly were held actionable Roll chief Iustice said the words required consideration but the words séem to imply that the party did believe that she had the French Pox else the would not have gone to be cured and so they are scandalous Ierman Iustice said intentions shall not make words actionable and therefore he conceived they are not actionable Nicholas Iustice said he conceived them prima facie to be actionable for words shall be taken according to the common intendment and an Action on the Case may sometimes be brought upon words spoken by implication and interrogation Aâ—k Iustice held they were actionable But the Court said they would advise Posten Hill 1649. Banc. sup THe Court was moved for the quashing an Endictment For quashing an Endictment for suffering one to escape that was taken for Felony But the Court would not quash it though there was cause but ordered the Defendant should plead to it because they believed he had compounded with the Felon VVyat against Harbye Hil. 1649. Banc. sup Mich. 1649 rot 426. A Writ of Error was brought to reverse a Iudgement given in the Court at Barnestable in an Action of Debt upon an Obligation The Error assigned was Error to reverse a judgment in Debt at B. râ—estable that the place alleged for the payment of the mony sued for is out of the jurisdiction of the Court It was answered that it is said to be at Chitlehampton aforesaid and it doth not appear whether Chitlehampton be within the jurisdiction of the Court or where it is and therefore it shall be intended to be within the jurisdiction Roll chief Iustice said the Declaration is that the Obligation was at Barnestable and the plea is that it was at Chichley which is a forein plea and the plea is not sworn neither is there any demurrer upon the plea but the plea is received and day given to swear it and for not swearing it accordingly a judgement is given against the Plaintiff by default Iudgement whereas it ought to have béen a Iudgement upon a nibil dicit for want of a plea and he said also Fereâ—n plea. that if one plead an insufficient plea although it be a forein plea it is not necessary it should be sworn The Iudgement was ordered to be reversed except cause shewed to the contrary Iones against Blunden Hil. 1649. Banc. sup Mich. 1649. rot 34. A Writ of Error was brought to reverse a Iudgement given in the palace Court at Westminster in an Action of Assault and Battery Error to reverse a Judgement given in the palace Court at Westminster Tryall The Case was this an Action was brought for an Assault and Battery in Surry The Defendant pleads a plea of justification in Middlesex The Plaintiff replyed that he beat him in Southwark which is in Surry de injuria sua propria absque tali causa and this issue was tryed by a Iury of Midlesex The question was whether it were a good tryal The Court would advise Postea VVatson against Norbury and others Hil. 1649 Banc. sup VVAtson brought an Action upon the Case against Norbury a Commissioner upon the Statute of Bankrupt and others Demurrer to a plea in Trespasse upon the Case for the breaking of his house and taking away his goods upon pretence of the said Commission whereas he was no Bankrupt by reason whereof he was empaired in his credit and hindred in his Trade and declares to his damage c. The Defendant pleads that the Plaintiff had heretofore brought an Action of Trespasse against him for the same trespasse and goods taken and had recovered damages against him To this plea the Plaintiff demurred And upon the demurrer the question was whether this plea pleaded by the Defendant be a good plea in abatement of the writ of Trespasse upon the Case now brought or not Abatement Shafto of Councel with the Plaintiff argued that the plea was not good because the matter in this Action upon the Case and the matter of the former Action of Trespasse are not all one but are several and various matters and therefore severall Actions may be brought for them 15. rep f. 43. Sparies case Hob. 493. The Earl of Bedfords case 4. rep â—lades case Petty Brook 105. 4. rep f. 43. Hudsons case 11 Ed. 2. Fitzh Trespasse 207. 2 R. 3. f. 14. 18 E. 4. f. 23. 20 H. 7. f. 9. 12 E. 4. f. 13. Fitzh estopel 78. 7 H. 4. f. 44. And the variances here between the Action upon the Case and the Action of Trespass prove that they are not all one And that there is a difference it is plain for in this Action upon the Case it is said that the Defendant did enter into the Plaintiffs house malitiose but in the former Action of Trespass it was said that he did enter vi et armis which is a plain difference and variance 8 H. 6. f. 27. Cooks Entries fol. 39. And the matters pleaded upon Record in these several Actions do not destroy one another but may well stand together Pasc 2 Car. Laicon and Barnards case And here this Action of the Case is to repair the Plaintiffs credit but the former Action was to recover damages for his goods taken from him An abduxit of Cattel will maintain a chasing and one may therein recover for the chasing and the value also so here both Actions may stand together And there is matter for both Actions and the matter pleaded in Bar is but to encrease the damages and if the special matter alleged in the Action of Trespasse alleged in the Action upon the Case had been lesse yet it is well enough and it is but surplusage and only by way of inducement to prove the scandal and the Defendant here is not at any mischief for the words here
are only put in agrravation of dammages 7 H. 6. f. 34. and so prayes judgement for the Plaintiff Green of Councell with the Defendant prayed the Writ might be abated Because 1. here is not any thing laid that the Defendant hath positively affirmed the Plaintiff to be a Bankrupt 2ly There are general words in the former Action namely alia enormia which words do comprehend the matter for which this Action is now brought and he denyed the differences taken by the Councell on the other side And it doth here appear to the Court that the former Action of Trespasse was brought for the same things and damages were therein given for them and it is unreasonable to punish one twice for one and the same offence and the averment is good and doth shew that both Actions are for one and the same cause and he hath recovered damages already for all the wrong he sustained and here is no conversion alleged in the Case nor is it vi et armis and the Law hates double vexation 2. H. 6. f. 54. Brook brev 397 3 H. 7. 4. Brook brev 77. and damages might well enough be recovered in the first Action for all the damages sustained 19 H. 6. f. 44. And if this Action now brought had been brought for calling the Plaintiff Bankrupt the Action would have lien but not as it is here brought and one entire Action shall never be divided to put the party to a double vexation as it is in our case 41 Ass pl. 16. Brook brev 309. â— rep Hudsons case and in the first Action the words alia enormia were purposely put in that all matters touching that Trespass might be brought in question to encrease the damages 9 E 4. Brook Tresp f. 1â—9 and so all the damages were recovered in the former Action And he agreed Laicons case put by Shafto that the Plaintiff might recover damages as well for the value of the Sheep as for the chasing of them and prayes the Writ may be abated Roll chief Iustice said it is hard to maintain Laicons case for cepit er abduxit intends that the owner hath not the Sheep again otherwise it would be if the Action had been for the driving of them only And Mr. Shafto hath taken a good ground viz. that the Actions are for severall things and the Declaration is in part but an inducement to increase the scandall and to prove it and the words alia enormia shall not be intended of collateral matter but of matter incident to the Act done And one and the same thing may give several causes of Action and one Action is not to be confounded with another Action Ierman Iustice said Laicons Case was not like this Case for the question here is whether the Plaintiff can recover damages in this second Action which he hath by intendment recovered in the former Action and he inclined that it may be so here and that there is a recovering of the same damages in divers manners for the same thing Nicholas Iustice said he may bring severall Actions although he might have joyned them both in one Ask Iustice said That one Act may be divided into divers Actions and so it is here and well enough Roll chief Iustice said the Plaintiff in this Action cannot recover damages for his Goods so that this Action is brought for another matter Therefore plead in chief if cause be not shewed to the contrary for the Action doth well lye Meers against French Hll. 1649. Banc. Reg. IN an ejectione firmae Arrest of judgement in an ejectione fiâ—â—ae and a verdict for the Plaintiff The Defendant moved in arrest of Iudgement that there is no certainty in the Declaration neither of the place nor of the quantity nor of the quality of the Land whence the Plaintiff was ejected for it is eâ—dnobus Acris fundi Anglice a hopground which is not warranted by the Latin and so it is incertain and it is also dimisit unum croftum and a peice of Land and the quantity is not expressed for it is per estimationem sive plus sive minus medietatem sive unam partem is also incertain Twisden answered it was certain enough because it is expressed by a certain name Declaration Grant But Roll chief Iustice said it is good in grants but not in a Declaration for there is required more certainty and the Anglice here doth not help it for the Anglice is not to interpret a Latin name by which it is called And the sive plus sive minus is also ill but if it had been so many Acres per estimationem it had been good Therefore advise better of it Antea Vaux and Vaux against Draper Hill 1649. Banc. sup Entred Trin. 1649. rot 1104. VAux and Vaux brought an Action upon the Case against Draper Arrest of Iudgement in an action upon the case upon a promise upon a promise and declared that the Defendant in consideration of ten pounds paid by the Plaintifs unto the Defendant did assume and promise unto the Plaintifs to procure certain Cattel of the Plaintifs taken from them by a third person to be redelivered unto them by such a time and for not performing this promise they brought their action Vpon Non assumpsit pleaded there was an issue joyned and a verdict found for the Plaintifs after this case had béen twice spoken unto The Defendant moved in arrest of Iudgment that thâ—â— Action was not well brought joyntly by the Plaintifs but that they ought to have brought two several Actions Joynt action in regard that the promise upon which the Action was founded was not an entire promise but was a several promise made to each of the Plaintifs The Councel on the other side prayed for Iudgement and said the promise was intire made to both and not several and so the Iury have found it which shall be intended to be true and if it should not be so it would be disadvantagious for the Defendant Hales said on the other side that the assumpsit is several and the acts to be done by the Defendant to the Plaintifs are several although the assumpsit sounds as a joynt assumpsit Roll chief Iustice said That the Consideration given is entire and cannot be divided and there is no inconvenience in joyning in the Action in this case but if one had brought the Action alone it might have been questionable Nicholas and Ask Iustices of the same opinion But Jerman Iustice differed and said that they are several promises viz. to deliver such Cattel severally to each of them as did belong properly to them and so there must be two several Actions But Iudgement was given for the Plaintif except better matter shewed Antea Spry against Mill. Hill 1649. Banc. sup Pasch 1649. rot 208. IN a Writ of Error brought to reverse a Iudgement given in a Trover and Conversion at Launceston in Cornwal upon a nihil dicit Error to reverse a
not well pleaded for it is pleaded too generally and not in the several circumstances thereof as it ought to be The Court commanded the Record to be read and upon Dyer of it answered That 2 Churches united by the Statute are both of spiritual promotion And the Statute of 12 Eliz doth not repeal the Statute of 38 H. 8. But let the party shew cause why the Iudgement should not be reversed Repeal and let us see a book Burton against Low Pasc 1649. Banc. sup Mich. 1649. rot 27. AN Action of Debt was brought upon a Bond taken by a Sheriff Dâ—muâ—â—er to a plea in debt upon a Sheriffs Bond. for the Defendant to appear in Chancery upon an Attachment issued out thence against him The Defendant pleads the Statute of 23 H. 6. That the Sheriff ought not to take Bonds of any but in speciall cases and that this Bond is void because it is taken against the Statute To this plea the Plaintiff demurred The question was whether an Atatchment out of the Chancery be within the Statute of 23 H. 6. The Court ordered cause to be shewn why Iudgement should not be given for the Plaintif upon this Demurrer Postea Edwards against Fallowes Pasch 1649. Banc. sup EDwards brought an Action upon the Case against Fallowes for speaking of these words of him viz. Arrest of Iudgement in an Action for words Edwards hath stollen my Axe from my Wood Pen and for causing him to be bound over to the Quarter-Session It was moved in Arrest of Iudgement that the words were not Actionable But the Court held they were actionable and gave Iudgement for the Plaintif Nisi causa c. Viccarye against Barns Pasch 1649. Banc. sup rot 1724. VIccarye being a Mercer by his Trade Arrest of Iudgement for words brought an Action upon the Case against Barns for speaking these words of him viz. Thou art a Cuckold and a Cuckoldly Rascall and dost owe more than thou art worth and are not able to pay thy debts Vpon non culp pleaded and an issue joyned and a verdict found for the Plaintif it was moved in Arrest of Iudgement that the words are not actionable for for the first part of the words they are clearly not actionable and for the latter words they do not imply any shifting fraud or falshood and so cannot imply him to be a Bankrupt for though he doe owe more than he is worth and is not able to pay his debts yet he may be an honest man and he may have credit and friends to support him in his trade Apes and More Pasch 15 Car. and Iones and Iacob â—4 Car. The Court answered here is no fraud or deceipt implyed which do make a Bankrupt within all the Statutes touching Bankrupts and if there be a special loss alleged the words will be actionable otherwise not Bankrupt But let Iudgement stay till the other side move and bring us a book for the words are worthy consideration Postea Barnestone against Gale Pasch 1649. Banc. sup AN Action of Trespass was brought for chasing of the Plaintifs Hogs Arrest of Iudgement in Trespass the Defendant by way of justification pleads a special plea viz. That he did hunt them with a Dog by the command of his Master because the Plaintif did put them into his Masters ground to eat the Acorns there The Plaintif replyed that he had Common there Vpon this an Issue was joyned and a Verdict found for the Plaintif Replication The Defendant moved in Arrest of Iudgement upon this exception that the Plaintif in his replication hath not answered the bar for he prescribes only for Common of Pasture and pannage is no pasture and so he hath no right to the Acorns But Roll chief Iustice said If they have cause to eat the Grass they may also eat the Acorns there for they may be on the grounds and therefore it is a good justification And therefore let the Plaintif have Iudgement except cause be shewn to the contrary Bolton against VVills Pasch 1649. Banc. sup AN Action upon the Case was brought upon an indebitatus Assumpsit for a hundred and ninety Weathers sold by the Plaintif unto the Defendant at 18 s. Arrest of Iudgement in an Action upon the Case upon an Assumpsit a shéep which in all amounts to 190 l. Vpon an Issue joyned and a Verdict for the Plaintif It was moved in Arrest of Iudgement that the Declaration is not good but mistakes the promise for the Weathers promised to be paid for do not amount to the sum for which the Declaration is laid And also the issue is taken upon the immaterial part of the plea and the matter well pleaded is waived The Court answered That mistaking of a Iudgement is a mistake of the Clark and is not material Amendment but here the Declaration it self is mistaken and that is material for the Action is grounded upon the promise in Law upon the sale of the Shéep Declaration and not upon any new Contract and by the sale there wants 2 s. in every Sheep to make up the sum demanded therefore the Declaration is repugnant Nil capiat per billam nisi c. More against the Earl Rivers Pasch 1649 Banc. sup Mich. 1649. rot 588. VVIlson of Councel with More the Plaintif argued against the Plea of Péerage pleaded by the Earl Rivers as it is pleaded and took these Exceptions Argument against the plea of Peerage 1. It appears not here by the Retorn by what Warrant the Earl was committed and brought hither and so he hath no day in Court and so the Plea is not good 2ly It is not shewed by virtue of what Warrant he was taken 3ly The Plea is 1. In abatement of the writ 2ly In avoidance of the Act of the Iudge and the latter ought not to be questioned by Plea 3ly There is no Plea but bare words for he pleads the Common Law 4ly He pleads his Patent as Earl only by way of Argument 5ly He ought to shew the writ under the Seal testifying the matter 8 H. 6. f. 9. 6ly The investiture of the Earldom is the livery and seisin of the Earldom and he hath omitted the pleading the Ceremonies of the investing and so he doth not shew that he is an Earl By the Statute Law Capias viz. of E. 3. a Capias was given in debt and before that a Summons was the process The Councel on the other side said they had demurred to the Plea Summons and shewed the cause of their Demurrer but the Court reproved them because they had ruled the matter in Law should be argued at the Bar to enform their own Iudgements Adjournatur Postea Syms against VVilson Pasch 1649. Banc. sup Pasch 23 Car. rot 120. SYms brought an action upon the Case upon the Statute of Monopolies against Wilson Demurrer to a Plea in Bar in an Action upon the case The Defendant pleaded
agreed that by the conference set forth in the Declaration it is agreed that there was a Bastard Child and it is a scandal to the party whether there were a Bastard Child or no and if there were none you ought to shew it on the Defendants part Therefore let the Plaintiff have his Iudgement Elsy against Mawdit Trin. 1650. Banc. sup Pasc 1650. rot 409. THe Case of Elsy and Maw dit was again moved Arrest of judgement in an action for words wherein the Plaintiff had a verdict against the Defendant in an Action upon the Case brought against him for speaking these words of him Thou Sirrah art a rogue and a run-away rogue and didst run away at Oxford and art a rogue upon Record at Oxford upon a motion in arrest of Iudgement Iudgement was stayed till the Plaintiff should move Hales now moved for Iudgement because the words are actionable for they make the Plaintiff to be such a Rogue as may be endicted within the Statute and receive corporal punishment But Twisden denyed it Roll chief Iustice held it was within the Statute Yet the Court would advise In this case Ierman Iustice said That if one say that another is forsworn in a Court of Record the words are not actionable but if he say that he is forsworn upon Record the words are actionable But Roll chief Iustce held there was no difference between the words but that they are both Actionable Antea et Postea More against the Earl Rivers Trin. 1650. Banc. sup Mich. 1649 rot 588. MOre Arrested the Earl Rivers by a bill of Midlesex in a plea of Debt The Earl was therupon brought before Mr. Iustice Nicholas to put in bail Earl Rivers case touching privilege of pecrage and not being able to put in sufficient bail according to the course of the Court was committed to the custody of the Mareschal of the Marshalsea the Earl being in custody brings himself into Court by a habeas corpus and there pleads his privilege of his peerage and sayes that he ought not to be arrested and demands Iudgement of the Writ and prayes to be delivered to this the Plaintiff demurred Hales of Councel with the Earl argued to divers points but I could not here him well But the main question he insisted upon was whether that by taking away the house of Lords in Parliament whereby their voice and place in Parliament was gone the Privilege of his peerage not to be arrested for Debt was also taken away and he argued that it was not for he said that at the Common Law no capias did lye against a Peer Capias and the Statute of E. 3. which gave a capias for Debt against others did not give it against a Peer and it doth appear here that the Defendant is really an Earl and not in nomination only and he cited 27 H. 8. f. 22. b The reasons he said why an Earl had the privilege not to be arrested are two The first is in respect of the dignity of his person being called comes a comitando rege as some have thought and he is called by the King consanguineus noster The second is in respect of the presumption of his sufficiency of estate in lands to be summoned by and not by reason of his place in Parliament for they have the privilege not to be arrested as well in the vacancy of Parliaments as when the Parliament doth sit and the privilege of Parliament is that he shall not be sued but the privilege of peerage is that he shall not be arrested in his person and so they are distinct privileges and by taking away the Lords house the former privilege is taken away but not the latter and this privilege annexed to the person not to be arrested may belong to a person that hath not the privilege of Parliament as for example unto Widowes of Peers which could not be arrested and yet had no place in Parliament so that the excluding them from the Parliament doth only take away their privilege of Parliament and not their privilege of peerage and Nevlils case is that the privilege not to be arrested belongs to them in respect of the dignity of their persons 9 Rep. Salops case And it hath been a question whether comes be so called a comitando rege or in respect of their Counties whereof they were Earls and I conceive the latter derivation is the truer and then the taking away the King takes not away their privilege for the Counties remain 2ly Earls have by intendment sufficient fréehold to enfcore them to come in and answer at this day and therefore are not to be arrested and imprisonment of a mans person for debt was but a suppliment to make him answer where he had not sufficient freehold which we cannot intend here Nat. brev f. 93. And an Earl shall be amerced higher than another man in regard of the presumption of his freehold and Earls are called majores Barones in this respect 7 E. 4 Nevils case and the widow of an Earl had the privilege not to be arrested for the two very reasons that her husband had it so was it of a Bishop Abbot and Prior of England but otherwise it was of a Bishop that had a Bishoprick out of England And the late Statute that takes away the Kingly office doth not take away their names and dignities nor the presumption that they have fréeholds and therefore they are not to be arrested and their will be since the Act no more a failer of right than there was before and so he prayed the Writ might be abated Abatement Roll chief Iustice answered your Clyent ought to have prayed the Writ might have abated before he was turned over to the Marshall of this Court◠for then he was in Midlesex where he was arrested but now it is too late for now he is in custodia Marescalli Declaration and any body that hath cause of Action against him may declare against him Ierman Iustice said that the Writ is now determined which you pray to have abated so your prayer is to no purpose Roll chief Iustice said that the dignity of the person of an Earl may relate to him as he is Peer of the Parliament and the other presumption that he hath sufficient freehold may also fail but it doth not appear here by averment that he hath not freehold therefore it may be a question whether there shall be intended a sailer of Iustice for want of freehold if the party should not have been arrested and he agreed that an Earl as a Peer of Parliament had a double privilege one of his person to be free from arrests Arrests the other of his Estate to be free from sutes and he said if it had appeared by averment that the party had freehold it had been good without doubt to free him from arrests Ierman Iustice said he is now in custodia and the Declaration against him is good and now
upon the Case and didst kill thy first wife The Error assigned was that it doth not appear in the Declaration that the Plaintif was maried before But the Court affirmed the judgement and said the Defendant hath confessed it by joyning issue non culp upon the words VVood against Topham Trin. 1650. Banc. sup THis case being an Action upon the Case quare filium suum cepit et abduxit Error to reverse a judgement in an Action on the Case et maritavit was again moved and the exception insisted upon was that the Plaintif doth not say Cujus maritagium ad ipsum pertiner But Roll chief Iustice said that it could not be otherwise intended but that the mariage belongs to him and it doth not appear that his Son was maried before and the value of the mariage is not here material for the mariage of his Son belongs unto him as a parent Mariage in regard of his protection and advice Ierman differed and said that if he were maried before he was then Pater Familias and is out of the protection of his Father Protection But Nicholas and Ask Iustices agreed with Roll and Roll said the matter here is not the loss of the mariage for that is but to increase the damages but the Action lies only quare cepit et abduxit Adjourned to be argued the next Term. Antea et Postea Oreswick against Armery Trin. 1650. Banc. sup Mich. 1649. rot 354. OReswick brought a writ of Error against Armery to reverse a judgement given against him in Bristow Error to reverse a judgement in an Action of Debt Debt Custom in an action of debt upon a Concessit solvere according to the custom of the City but the Iudgement was affirmed for the Court said an action of debt will lie by a custom upon a Concessit solvere but not if it be brought against an Executor Custodes Libertat c. against Valconbridge Trin. 1650. Banc. sup THe Court was moved to quash an Endictment of Assault and Battery To quash an Endictment of Assault and Battery The Exception was that the Endictment was taken before the Iustices of Assize and Gaol delivery and Oyer and Terminer and so it doth not appear by vertue of what Commission it was taken Roll chief Iustice He ought to shew by virtue of what Commission particularly it was taken and therefore let it be quashed and a fine of 40 s. set upon the Clark of the Assizes for his negligence Fine Bowles against Clark Trin. 1650. Banc. sup IT was she wed for cause upon a rule of Court why a Prohibition should not be granted to the Prerogative Court Why a Prohibition should not be granted to the Prerogative That in the will which the Prerogative Court endeavoured to repeal there were lands given to the Executor The Court answered If the Prerogative have power to prove a will they may also repeal it by appeal but if lands be devised together with goods they have no power to repeal it as to the lands but if they should have no power to repeal it as to the goods it would be mischievous But they have no authority to make the devise good or ill as to the lands Prohibition And the Court was at first agreed to grant a Prohibition as to the lands only But afterwards the Court held that there could be no such division made of the will by Prohibition as to stand good in part and to be repealed for the rest and so would not grant the prohibition Nota. Keniston against Crouch Trin. 1650. Banc. sup THe Court was moved that upon a Judgement given in the Common Pleas For a rule to enter judgement in the Common Pleas denied since the Act that a writ of Error shall be no supersedeas a writ of Error was brought in this Court and the record removed but that depends undetermined and that the party had moved for execution in the Common Pleas but the Clarks refuse to make out execution without the rule of this Court Rule and therefore a rule was prayed to them to make out execution But the Court answered procéed as the Act directs we will make no rule But we conceive there is no writ of Error now depending and therefore you may take out execution of Course Q. Tamen Execution for it was doubted at the Bar. Denton against Harison Trin. 1650. Banc. sup DEnton brought an Action upon the Case against Harison in London For a Procedendo to London for speaking these words Thou art a Whore and my Husbands Whore and he doth maintain thee The Defendant removed the cause into this Court by a Habeas Corpus whereupon the Plaintif moved for a procedendo Roll chief Iustice was of opinion that a procedendo ought to be granted for if it should not the party hath no remedy to proceed and if they do proceed in London and the judgement he thereupon erronious the party grieved may bring a writ of Error in the Hustinges and reverse it Ierman Iustice said here is a wrong done and the remedy is given according to the custom of the City and it is a good custom Custom because it is for the preservation of the Peace of the City and it is the custom of the City to whip a Whoremonger and to Cart a Whore and this may be the ground or reason why an action lies in London for calling of a woman whore there thought it doe not lie in other places Trin. 1650. Banc. sup VPon an Issue joyned and a Tryal thereupon That Iudgement might not be entred a Verdict was found for the Plaintif and the Postea was delivered to the Clark of the judgements to enter the judgement but through the Clarks neglect execution was taken out the Iudgement being not entred upon this the Court was moved that the Iudgement might not be entred Iudgement because it should have béen entred before Execution issued forth and therefore it was suggested that now it was too late and prayed to supersede the Execution Supersedeas because there was no judgement to warrant it But Roll the Chief Iustice answered that this being but a neglect of the Clark judgement might be well enough entred though the Execution were issued forth and because the tryal betwéen the parties is right therefore let it be entred Cane against Pell Trin. 1650. Banc. sup CAne brought an Action of Debt upon the Statute of 2 Ed. 6. for substraction of tithes against Pell and hath a verdict against the Defendant Arrest of Iudgement in an action upon the Statute for tithes The Defendant moved in Arrest of Iudgement and took an Exception to the Plaintifs Declaration That it did not appear by it in what Parish the lands lie out of which the tithes grew due On the other side it was said 〈◊〉 appeared well enough by implication but if it did not it is not now material there being a
verdict in the case by which it is helped Ierman Iustice said there is only an implication to shew in what Parish the lands lie and that is not a violent implication neither and therefore the Declaration cannot be good But Roll Chief Iustice answered What if the Plaintif had only said that the tithes belonged unto him And it is here after a verdict and the Declaration is helped by it Declaration but if you had demurred to the Declaration it would have been ruled to be naught Demurrer And if the tithes do belong to the Plaintif why may it not be implyed that they belong to him as Parson of the Parish and are of lands lying within the Parish But let us see a Book and speak to it again the next Term. Robinson against VValker Trin. 1650. Banc. sup Pasc 1650. rot 251. WAlker brought an Action upon the Case upon an indebitatus Assumpsit for wares sold Demurrer for doubleness in a replication The Defendant pleaded the Statute of limitations of Actions in Bar. The Plaintif replyed that he is a Merchant and was in Ireland and did not return thence till such a time and shews precisely when and that within six years after his return he brought this action Vpon this Replication The Defendant demurred and upon the Demurrer Iudgement was given for the Plaintif The Defendant brought a writ of Error to reverse this Iudgement and assigned for Error 1. That the replication of the Plaintif upon which the Demurrer was joyned is double For first he allegeth that he is a Merchant so is a person out of the Statute of limitations And secondly he shews that he brought his Action within 6 years after his return which is needless 2ly He saith That he did not return into England whereas the Statute is general If he return and he may return into Wales But to that the Court answered that to return into England or into Wales was all one as to the intent of the Statute 3ly The Action was an Action upon the Case that Action is not mentioned in the Statute But Roll chief Iustice said this is no new Case for it hath been ruled that an Action upon the Case is within the Statute Case Ierman Iustice said the Proviso of the Statute is intended to be as large as the body of the Act. Nicholas Iustice to the same effect and said that the word Trespass mentioned in the Act doth comprise in it an Action upon the Case The Iudgement was affirmed nisi Trin. 1650. Banc. sup AN Endictment was quashed To quash an Endictment because it was said to be taken ad generalem Sessionem Pacis Custodum libertatis Angliae where it ought to be Sessionem Pacis publicae by Ierman Iustice absente Roll. Treton against Squire Trin. 1650. Banc. sup THe Court was moved that a Prisoner in the Marshalsea might have liberty by rule of Court to be at a tryal to give his testimony as a Witness in the cause To have a Prisoner to testifie at a Trial. Ierman Iustice absente Roll answered Bring him thither by a Habeas Corpus but take a good guard with him for it shall be at your peril if he escape Habeas Corpus and he shall be brought thither and carried back again at your own charge Gibs against Price Trin. 1650. Banc. sup GIbs a Barrester of Lincolns Inne brought an action upon the case against Price for speaking these words of him Arrest of Iudgement in an Action for words William Gibs hath dealt falsely with me being his Clyent and hath joyned with mine Adversary Vpon not guilty pleaded there was an issue joyned and a Verdict given for the Plaintif The Defendant moved in Arrest of Iudgement that the words were not actionable But the Court held clearly the words were actionable and were ordering judgement to be entred for the Plaintif Case but because another exception was taken That the Plaintif doth not aver that he was a Practiser at the time of the bringing of his Action Averment and because it was also objected that the Plaintif was now sequestred Therefore the rule was that the Record or the Postea should be brought into the Court and that Councel should again be heard This was moved again And Roll chief Iustice said That the Plaintif ought to aver he is a Practiser for he may be a Barrester and not practise But the Court would advise Boomer against Cleve Trin. 1650. Banc. sup IN this Case in Arrest of Iudgement upon a verdict given for the Plaintif in an Action upon the Stat. of Winch. 12 E. 1. of Hue Cryes Arrest of Iudgement in an Action upon the Statute of 12 E. â— of Hue and Cries Recital the question being whether the Plaintif in his Declaration had mis-recited the Statute or not Roll chief Iustice took this difference that if one bring an Action upon a Statute and in his Declaration mis-recite it in words which go to the ground of the Action though there be a Verdict in the case yet it is not helped but if the mis-recital be in words which doe not goe to the ground of the Action it is helped after Verdict by the Statute of Ieofails Ieofails Bynion against Trotter Mich. 1650. Banc. sup BYnion brought an Action upon the Case against Trotter for speaking these words of him Arrest of Iudgement in an Action for words He is a Thief and hath stollen my Turnips and my grass Vpon a Verdict given for the Plaintif The Defendant moved in Arrest of Iudgement that the words are not actionable because the grass might be growing upon the ground and the Turnips in the ground Case and so part of the Freehold But Roll chief Iustice held the words are actionable for the Turnips shall be intended to be pulled up and the Grass mowed the last words are not cumulative Therefore let the Defendant shew cause why the Plaintif shall not have his Iudgement Pinder against Dawkes Mich. 1650. Banc. sup PInder brought an Action of Trespass against Dawkes Error to reverse a Iudgement in Trespass quare clausum fregit and declares quare clausum fregit contra pacem publicam et postes et palos suos ibidem nuper inventos cepit et asportavit The Plaintif hath a Verdict and a judgement the Defendant brings a writ of Error to reverse the judgement and assigns for Error 1. That the Trespass was done in the late Kings time and therefore the Declaration should have been contra pacem Domini Regis and not publicam 2ly That the Declaration is incertain for it appears not whether the Posts and Pales were fixed to the ground or no nor how many of them there were and so the nature of the offence cannot be certainly known But the Court held that the first exception was but a mistake of the Clark and so may be amended and as it is there is no repugnancy in it
Iustice held that a Bond given to appear upon an Attatchment out of the Chancery is within the Statute but it hath been heretofore a question whether a Serjeant at Arms of Wales were within the Statute but it hath been since ruled that he is not and here is a material variance in the Bond which makes it void and neither the upper Bench nor the Chancery are fixt Courts Obligation and therefore the Defendant ought not to be bound precisely to appear at VVestminster and then to add ubicumque fuerit is a material variance Chancery Variance and makes the Bond naught Ierman Iustice to the same effect and said that the Chancery may sit at any time out of the Term when they please and their not sitting in the Vacations is for the ease and conveniency of the people Nil capiat per billamn si c. Antea Paine against Prestny Mich. 1650. Banc. sup PAine brought an Action upon the case against Prestny Arrest of judgement in an action for words for speaking these words to a Constable of him Take charge of him and carry him away for I lay flat Felony to him and for speaking these words to the Plaintiff himself I will make you hold up you hand at the Bar upon not guilty pleaded an issue was joyned and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the words are not actionable but the Court held them cléerly actionable and ruled the Plaintiff to take his Iudgement except other cause were shewed to the contrary Friday following Popham against VVhite Mich. 1650. Banc. sup VPon a verdict found for the Plaintiff in a Trover Conversion Arrest of judgement in a Trover and Conversion the Defendant in Arrest of Iudgment took exception to the Declaration because the Plaintiff had declared of a Trover Conversion de decem arboribus wheras the trees were Tymber trees that were felled so they are not well expressed for the word arbor properly signifies a tree that grows and not one cut down according to the old verse Arbor dum crescit lignum dum crescere nescit and so a Trover cannot be brought pro arbore But Roll chief Iustice said that they were well enough expressed by the Declaration Declaration Description and that they ought not to be too strict in scanning some words where the thing is well described Goffs Case Mich. 1650. Banc. sup CLement Goff of Greenwitch in Kent A pardon for Felony pleaded and allowed arraigned of felony at Maidstone in Kent and there condemned was brought to this Bar and there it was demanded of him by the Clark on the criminal side what he could say why he should not suffer death according to his Iudgement whereupon the Prisoner pleaded he had a pardon and produced it and it was read openly the Prisoner kneeling on his keees in the mean time after reading of it he was asked what it was he demanded besides of the Court he answered that he prayed his pardon might be allowed which after Ierman Iustice had made a grave speech to exhort him to a better carriage for the future was done accordingly VVood against Topham Mich. 1650. Banc. sup THe case between VVood and Topham being an Action of Trespasse Arrest of judgement in trespass quare filium et heredem rapuit maritavit quare filium et heredem suum rapuit et maritavit was again spoken unto and in arrest of Iudgement Green took these exceptions to the Declaration 1. That it is too short because that after the words quare filium suum heredem rapuit maritavit there ought to have been added cujus maritagium ad ipsum pertinet for else it appears not that the Plaintiff hath cause of Action Instit f. 20. 35 El. Child and Towrs case Banc. Reg. 2ly The Declaration doth not say filium suum apparentem which it ought to do because the Father is alive 3ly It doth not expresse the Heir to be infra aetatem 4ly It doth not say the Heir is in custodia sua 5ly It doth not shew that the Heir was not married before 6ly It doth not shew that the Plaintiffs Father is dead 12 H. 4. f. 16. Broo◠Tit. Trespasse 101 Nat. brev 142. Reg. 163 Nat. Brev. 140. 20 H. 6. f. 44. And he said that a Declaration ought to be certain but that here was no certainty by reason of the former exceptions Declaration Trespass VVilmot on the other side said the Declaration was certain enough and according to the presidents and cited the Register f. 88 89. ◠rep Ratcliffs case Roll chief Iustice said It is a Trespasse to take away a mans Son and Heir although he be not within age but if it be another Son it is not so Nicholas Iustice to the same effect But because the Court was not full in regard that the damages given by the Iury were excessive the Court deferred to give Iudgement that time and perswaded the Plaintiffs councell to go to a new new try all Antea et Postea Marshall against Ledsham Mich. 1650. Banc. sup MArshall brought an Action of Debt as an Administrator against Ledsham Arrest of judgement in debt by an Administator and obteins a verdict against the Defendant It was moved for the Defendant in arrest of Iudgement That the Plaintiff had not shewed in his Declaration by whom the Letters of Administration were granted unto him as he ought to do according to the books of 26 H. 6.29 35 H. 6. The Court answered that he ought to have set it forth and therefore the Plaintiff might have demurred to the Declaration but it now being after a verdict Demurrer the question is Whether that fault be not helped by it And therefore they would advise Postea VVats and his wife against Lord. Mich. 1650. Banc. sup VVAts and his wife brought an Action of Trespasse of an Assault and Battery against Lord Arrest of judgement in an Assault and Battery and obtein a verdict The Defendant moved in arrest of Iudgement That the Declaration was by the Baron and Feme for an Assault and Battery made to the Feme and they also declare that the Defendant alia enormia eis intulit which ought not to be for the wrong being but a personal wrong done to the person of the Feme only could not be said to be done to the Husband To which Roll chief Iustice agreed Fairefax against Fairfax Mich. 1650. Banc. sup IN a writ of Error brought to reverse a Iudgement given in a writ of Dowr these exceptions were taken Error to reverse a judgment in down 1. That the original was not well returned for their appears not to be any return of the Proclamation of the summons and though the party do appear yet it was said that it is not helped thereby 2ly The demand is incertain for the demand is de tertia parte decimarum garbarum
upon the Assumpsit for this is no new promise in Law and it is all one here as if the promise had been set forth that he promised to pay when he should be thereunto required And whereas it hath been objected that the debt upon the Accompt appears to be due by two and that the Action therefore ought to have been brought against them both and not against one of them as it is here he answered that the Action may be brought against both or any one of them at the election of the party and the custom of Merchants makes no difference in the case for the Law creates the debt and makes both lyable though the custom give election to sue one or both of them and so one may here be sued for the debt is by the custom transferred upon one although it be the debt of both And here both the dayes viz. according to the old stile and according to the new were past before the action brought Roll chief Iustice held Date that the Plaintiff ought to have Iudgement but that day shall be taken according to the old stile Averment if there be not a speciall averment to the contrary and so there is variance between the pleading and the verdict but this doth not hurt here for the Action doth not fail although the day be limited upon the evidence otherwise than it is in the Declaration for the debt is the duty arising upon the accompt made between the parties Time and the day upon the Assumpsit for the payment is not material for the Action lies though no Assumpsit had been made Actual promise Debt and here is no need of an actual promise But if an Assumpsit be made upon a contract there is no precedent duty and so there is a difference between one case and the other And if two be found in arrearages of accompt Custom by the custom of Merchants one may be charged to pay all the debt as well as both Ierman Iustice as Roll and said that where the day is part of the contract it ought to be alleged to be past at the time of the Action brought but it is not so here and also both the dayes are here past Nicholas to the same purpose Roll chief Iustice If the Action be specially laid and the day made part of it there if the Plaintiff fail in the day his action also fails And if one declare generally for 100 l. upon an indebitatus and it appears upon the evidence that the Defendant did owe the Plaintiff but 10 l. yet the Plaintif shall recover But if the Plaintiff declare specially Declaration General Special viz. for a horse sold for so much and by the evidence it appears he owed a lesse sum there the Plaintiff shall not recover for it shall be intended another contract and not that upon which the Action is brought and so Iudgement for the Plaintiff nisi c. Maynard spake again to it But Iudgement was given for the Plaintiff upon the former reasons Paul VVilliams and his wife against the Custodes c. Hill 1650. Banc. sup PAul Williams and his wife had a Iudgement given against them at the Sessions at Hickes Hall Error to reverse a judgment at the Sessions for speaking words upon an endictment for speaking words against the Lord Fairefax whereupon they brought a Writ of Error in this Court to reverse the Iudgement The Exceptions taken were these 1. That the Iustices there had not power to hold plea for words spoken To this the Court answered that they have power to hold plea for such words because they tend to breach of the peace and the speaking of them is a great misdemenour The second exception was that it is said juratores jurati electi triatiad veritatem dicunt ad dicendum is left out 3ly There issued out a capias pro fine against the parties whereas there was no fine set upon them The Court to that answered that a fine was set Wild took another exception viz. that the endictment ought not to be joynt against two for words spoken by them both Endictment but severall endictments for the words of one are not the words of the other though they be the same words But the Court answered Case that a joynt endictment was good enough although a joynt Action of the Case cannot be brought against two for words spoken by them both He took also this Exception that it doth not appear that the parties were tryed in the Court for it is only said that they were ducti ad barram and then that they were removed from Hickes Hall to Newgate The Court answered that the words ducti ad barram were sufficient and it is needless to say they were tryed in Court And therefore the whole matter rests upon the 2 d. Exception whether the want of the words ad dicendum be Error and for that let the Clark of the peace be here on VVednesday next and then speak again to it and then by the whole Court the Exception was adjudged good And the Clark of the peace was fined 40 l. Masterman against Rusholme Hill 1650. Banc. sup Pasc 1650. rot 594. A Writ of Error was brought to reverse a Iudgement given in an Action upon the Case upon an Assumpsit Error to reverse a judgement in an Action upon an Assumpsit to pay Mariners wages the Exceptions taken were first that the plaint was for 10 l. and the Declaration is to the damages of 20 l. and so there is variance between the plaint and the Declaration Next the promise is laid to be made the 1. of May 1641 to serve the Defendant for a year and he saith that he served him from the 1. of May for a year whereas the 1. of May ought to be excluded so that he ought to say that he served for a year from the making of the promise Roll chief Iustice said Variance that there is variance between the plaint and the Declaration but it is helped by the verdict for that finds that he hath served a whole year But two other exceptions were taken at the Bar. 1. That the Declaration was pro salore insteed of Salario And 2ly It is said deserviret for deservivit Error And upon these the Court ordered the Defendant in the VVrit of error to shew cause why the Iudgement should not be reversed Hill 1650. Banc. sup AN Action upon the Case was brought in London for calling a woman whore the Defendant removed the cause into this Court For a Procedendo into London whereupon the Plaintiff moved for a procedendo to try it in London where the action was first brought Roll chief Iustice held that a procedendo was to be granted for we cannot determine the Custom but if a Iudgement be given in London if it be erroneous a writ of Error may be brought in the Hustings to try the custom therefore
take a procedendo nisi causa ostensa fuerit in contrarium Antea Davis against Ockham Hill 1650. Banc. sup Mich. 1650. rot 557. DAvis brought an Action upon the Case against Ockham for speaking these words of him Demurrer to a plea in an Action for for words The knave the Apothecary that married my sister hath poysoned my Vncle and I will have him taken up again to hang him The defendant pleaded an accord betwixt him and the Plaintiff that whereas the Plaintiff had done a Trespass against him that one Trespass should be set against the other To this plea the Plaintiff demurred and Twisden said the plea was not good and cited 16 Ed. 4. f. 89. and prayed Iudgement for the Plaintiff Latch of Councell with the Defendant said that the Accord was executed on the Defendants part and therefore may be pleaded in Bar. To this Roll chief Iustice answered Bar. how have you discharged the Accord for you do not shew it Latch took Exceptions to the Plaintiffs Declaration 1. That the words set forth are not actionable for it doth not express that the Plaintiff wittingly poysoned the Defendants Vncle or that he did dye of the poyson and cited Hob. rep 8. Miles and Iacobs case and 275. Fleetwood and Caveleys case 2ly There is no Communication expressed in the Declaration to be of the Vncle and it may be spoken of another Vncle and the innuendo will not helâ— it because he may have divers Vncles Twisden answered that it is implyed in the sence of the words that he poysoned him feloniously and so consequently wittingly And 2ly He saith that he will have him digged up and so it must be intended that he dyed of the poyson Roll chief Iustice held that the words are actionable Case Bar. And 2ly That the Defendants plea in Bar is not good Ierman Iustice held the plea in Bar not good but he doubted whether the Declaration was good for it doth not appear thereby whether the party dyed of the poyson and the latter words help it not Nicholas Iustice and Ask Iustice agreed with 〈◊〉 Roll in all and thereupon the râ—le was Iudicium nisi Lundi Suivant Custodes c against Maine and Serjeant Hill 1650. Banc. sup A Ioynt Information was exhibited against Main Serjeant 2 Iustices of Peace for not enquiring of a Ryot and a verdict found against them Arrest of judgment upon an information found The Defendants move in Arrest of Iudgement and by Hales shew for cause that the information ought not to have béen joynt against them but several because their offences are several and not joynt and here one of them is acquitted and so judgement cannot be given against the other that is found guilty Roll chief Iustice answered That as an Attachment in a Prohibition is several Execution so the execution here may be several and it is not material though one be acquitted and the other found guilty Ierman Nicholas and Ask Iustices to the same purpose It was then said that it is not necessary that the next Iustices only should remove a force but all the Iustices of the County are bound to it Force And these words in the Statute viz. That the 2 next Iustices shall do it are put but for conveniency and the more speedy execution of Iustice Nicholas Iustice doubted of this Judicium nisi pro custodibus Ailet against Watless Hill 1650. Banc. sup Trin 1649. rot 200. IN an Action of Trespass and Ejectment Special Verdict in Trespass and Ejectment there was a special verdict found upon which the case fell out to be this An Infant bargains and sells land and is vouched to warranty and comes in upon the Voucher and thereupon a common recovery is had and upon this the question was whether this be such a recovery that the Infant cannot avoid by Entry Hales held it could not be avoided but did bind the Infant during his life but I could not hear his reasons Wild of Councel on the other side argued that the Infant was not bound by the recovery because as an Infant cannot alien his lands so neither can he suffer a common recovery and cited 6 rep 28. 2ly No record made by an Infant can bind him and for this he cited 26 Ed. 3. Fitz. per que serv 24.41 E. 3. f. 3.44 E. 3.10.9 Ed. 4 3â— and though it be breve Amicabile and by consent yet it binds not and 9 Car. Newports case where a recovery suffered by a Guardian was adjudged good comes not to our case and for the intended value in a recovery that is not material to make it binding for it is but a fiction and not a real value Roll chief Iustice demanded whether a fine be not breve amicabile Fine Error Recovery and yet he said that that binds an Infant until it be avoided by writ of Error And he said that the Infant is not bound here but the question is whether he can avoid the recovery by Entry or must bring a writ of Error to avoid it And he held that a recovery suffered by a Guardian is not good notwithstanding the opinion in Newports case Hales replyed that the recovery here is binding till it be avoided by a writ of Error and that the Infant cannot avoid it by his Entry though an Infant may avoid a deed by Entry although it be enrolled And here appears no consent of the parties and the party cannot shew it and here is a formal judgement given which binds till it be reversed by a writ of Error Roll chief Iustice Entry An Infant may avoid a matter in paiis by Entry but not a matter of Record and here is a proper way by the law to avoid it namely by a writ of Error which is also matter of record and of as high a nature Ierman Nicholas and Ask Iustices to the same effect and so judgement pro Defendente nisi Powell against Hopkins Hill 1650. Banc. sup Hill 23 Car. rot 787. IVdgement was given in an Action of Trover and Conversion for the Plaintif The Defendant brought a writ of Error Error to reverse a judgement given in a Trover and Conversion and the Exception taken was to the Declaration wherein the Plaintif among other things declared of a Trover de ducentis ponderibus aeris ducentis ponderibus plumbi Anglice of Brass and Lead and there wants an Anglice for the ponderibus so it is uncertain what the quantity of either are And upon this Exception the rule was that the Iudgement should be reversed nisi c. Denton against Caket Hill 1650. Banc. sup Trin. 1650. rot 150. DEnton brought an Action upon the Case against Caket for speaking these words Demurrer to a plea in Bar of an Action upon the case for words He and his fellows have stollen her having speech of a Cow of the Defendants and I do charge him with flat felony By reason of which words
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
Return Tryal Therefore let them shew cause before the end of the Term upon notice why they should not make a better retorn Roll said the Action may be well brought there although they cannot try it there for the Original is good Shurlye against Semaign Hill 1650. Banc. sup THe Court was moved upon an Affidavit that two writs of Execution were executed upon one Iudgement For a supersedeas to an Execution therefore it was prayed that the last execution might be superseded because there ought not to be two executions for one matter but where the party is prejudiced by death or Act of Law that the party cannot take benefit of the former execution 28 H. 8. Dyer and 13 Eliz. Dyer Roll chief Iustice If the first writ of Execution be returned and filed there cannot be a second Execution Execution otherwise it is if it be not retorned and filed Therefore take your Course Coleman against Blunden Hill 1650. Banc. sup Mich. 1650. rot 447. COleman brought an Action upon the case upon an Assumpsit against Blunden and had a verdict against him Arrest of judgement in an Action upon the Case In Arrest of Iudgement it was moved that it doth not appear by the Declaration to whom the Assumpsit was made but it only says super se assumpsit and upon this Exception The Court ruled a nil capiat per billam VVarry against Bond. Pasch 1651. Banc. sup IT was moved in Arrest of Iudgement in an Action of Debt brought upon an Obligation to stand to an Award Arrest of Iudgement in debt upon a Bond to stand to an Award that the submission to stand to the Award was conditional viz. so that the Award were delivered up the 27 day of such a Month And it appears that the Action brought is for not performing an Award made the 24 day of the same Month so it appears not whether the Award were delivered upon the 27 day or no and so it may be that the condition is not broken Roll chief Iustice answered the question is whether it be an Award before the delivering it up or no. Therefore let the Iudgement stay till the Plaintif move Award for it is worthy of Consideration Harman against Iacob Pasch 1651. Banc. sup IN an Arrest of Iudgement upon a verdict given against an Alien in an Endictment upon the Statute of 22 H. 8. C. 1◠for using a Trade Arrest of Iudgement upon an Endictment exception was first taken that the Endictment doth not say that the Defendant was born out of the power of the Common-wealth but only that he was born out of England To this Roll chief Iustice answered if it say that he is Alienigenus Alien that emplyes all 2ly The Endictment doth not say that he is Alienatus extra Angliam and this was held a good Exception Sir Humphry Tracye against Bloom Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict given in an Action of Debt for rent upon two leases Arrest of Iudgement in Debt for Rent one for years and the other at will The Exception taken was that the Plaintif declares upon a demise made to the Defendant the 7th of October 1646. at will and sets forth that the Defendant held the lands let for 2 years ending at Michaelmas 1648. and so for two years rent behind he brings his Action whereas there cannot be such a rent due for such a Term for although the rent be due for the whole year at Michaelmas yet the term of 2 years is not ended at Michaelmas for that is upon the 29 day of September whereas the 2 years end not till the 6 of October following Roll chief Iustice answered the rent for the 2 years was due at Michaelmas Rent and take all the words together the Declaration is good enough although the expression be not so proper as it might have béen Nicholas and Ask as Roll and so the rule was judicium nisi Shann and Shann Pasch 1651. Banc. sup SHann brought an Action upon the Case upon an Assumpsit against Shann Arrest of Iudgement in an Action upon an Assumpsit and declares That in Consideration that the Plaintif would surrender to the Defendant and his heirs a Copyhold according to the custom of the manor the Defendant did assume and promise unto the Plaintiff to pay unto him 500 l. and for breach of this promise he brought his Action and obteins a verdict against the Defendant The Defendant moved in arrest of Iudgement and took this exception viz. that the consideration on the Plaintiffs part was not performed for the consideration was that he should surrender the Copyhold to the Defendant and his Heirs and he hath set forth the surrender to be into the hands of a Copyhold Tenant of the manor to the use of the Defendant which is no surrender Surrender untill it be presented at the next Court and so it is incertain whether it shall take effect or no. Roll chief Iustice said It is expressed to be secundum consuetudinem manerii yet this is not sufficient for it is not an effectual surrender untill it be presented at the Court. Therefore let Iudgement stay till the Plaintiff move Lord Mont-Eagle Pasc 1951. Banc. sup THe Lord Mont-Eagle was arrested by a bill of Midlesex and for want of bail was turned over to the Mareschal of this Court For the Defendant to plead in chief Plea dilatory and being in Custodia Mareschalli the Plaintiff declares against him in Debt upon an obligation The Defendant pleads his peerage and prayes to be discharged The Court was moved that he might be ordered to plead in chief and not this dilatory plea. The Court thereupon ordered that he should shew cause why he should not plead in chief and said his plea was dilatory and so it had been ruled lately in the case of the Earl Rivers Fielder and Tovye Hill 1650. Banc. sup Pasc 1651. rot 430. FIelder brought an Action of debt upon an obligation Demurrer to a Declaration in debt upon an obligation the Defendant prayed Oyer of the Bond and upon view thereof demurs to the Plaintiffs Declaration and for cause shews that the Plaintiff declares for quadragint libris and the Bond is quadragent libris and so there is a variance To this it was answered by Green that this is no material difference for the words sound alike and there is more difference between dra and drin than between ginta and genta between dra drin hath been held no materiall variance and quadragent is not utterly incertain here for either it must be 40. or 400. and the condition of the obligation explains the sum and the Plaintiff here declares but for 40 l. and so it appears in the Record In Osbornes case octogenta was for octogint and yet held good and Hob. 18. Logards case Trigintat insteed of triginti and in Walter and Pigots case Septingent is used
his promise to take notice of her coming Roll chief Iustice answered if all the Declaration be considered together here is a good consideration expressed for this is not like to the case of tender of money And the words obtulit se in maritagium conjungi shall be intended to the Defendant himself Consideration and then he must néeds have notice of her coming thither D ves of Counsel with the Defendant took this Exception that the Plaintif in setting forth her offer of mariage doth not say tunc et ibidem soe there is neither place nor time set forth Roll chief Iustice answered it is after a Verdict and you move this Exception too late Advantage and you have now lost the advantage of taking it If there be a sufficient notice it is well if not it is not good for there ought to be a notice for she may come to his house in private so that he cannot take notice of her coming thither Notice The question only is this whether notice be sufficiently and necessarily imployed in the words obtulit se in maritagium conjungi Curia advisare vult Postea King against Weeden Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif in an Action upon the Case upon an Assumpsit brought by an Administrator Arrest of Iudgement in an Action upon the Case 2 Exceptions were taken 1. That the Plaintif did not shew his Letters of Administration and 2ly That there is no good consideration set forth to ground the Assumpsit upon for it is that the Defendant did promise that if the Plaintif would forbear to take his course for the monies he would pay them which words are uncertain and he should have said his course in Law and not generally his course Roll chief Iustice to the 1 answered It is not necessary here to shew the Letters of Administration for they are but inducements to the Actio◠and not the ground of it And for the second exception the consideration is certainly enough set forth Consideration although the Latine be not very proper Therefore let the Plaintif have his judgement nisi c. Sawyer against Russel Pasc 1651. Banc. sup SAwyer brought an Action upon the case against Russel Arrest of Iudgement in an Action upon the Case for taking away certain Cattel and obtained a Verdict against the Defendant The Defendant moved in Arrest of Iudgement and took exception to the Plaintifs Declaration for the incertainty thereof The Plaintif declared of a Trover and Conversion de ducentis Averiis viz. bobus juvencis Anglice Steers Iuvencis Anglice Runts Iuvencis Anglice Heifers which is uncertain and so judgement cannot be given for it is uncertain for what number of each of the Steers Runts and Heifers judgement should be given Roll chief Iustice enclined that it is certain enough Averment and that the number may be averred and the Cattel are all of one kind yet The Court would advise afterward it was ruled Iudicium nisi Shedlock and La. Pere Pasc 1651. Banc. sup Hill 1650. rot 211. IN a Writ of Error brought to reverse a Iudgement given in an inferior Court The Error assigned was Error to reverse a judgment in an interior Court Iudgement Error Abatement that the Iudgement is quod recuperare debeat whereas it ought to be recuperare debet Roll chief Iustice answered That if it be so there is no Iudgement given and so no Writ of Error lies therefore let the writ be abated For the Writ of Error supposeth a Iudgement for the words of it are si judicium redditum sit and in 3. Iacobi in the Exchequer Chamber the very case was adjudged so Collins against Sillye Pasc 1651 Banc. sup Hill 1650. rot 302. THe Case was this Demurrer upon an entry upon Lessee for years Lessée for years by indenture covenants with the Lessor that he will not assign over the land let nor any part thereof without the consent of the Lessor The Lessor during the term enters into part of the land let the Lessee assigns over the remainder of his term in the rest of the land without the consent of the Lessor and the Lessor thereupon brings an Action of Covenant against the Lessee the question was whether it did lye in regard that the Lessor had entred into part of the land Covenant Roll chief Iustice held that the Covenant was collateral and therefore it is broken by the assignment notwithstanding the Lessors entry into part of the land And the rule was judicium nisi Custodes against Monger Pasc 1651. MOnger was endicted for forgeing a presentment to a Iury in a Court held before Commissioners of sewers Exceptions to the setting forth of a presentment against Monger for casting of 10 loads of soil into the Thames Exceptions were taken that it doth not appear by the endictment by what authority the Court was held where the presentment was found 2ly It is not averred that the presentment did present the casting in the soil to be any annoyance 3ly There doth not appear to be any process in the case against the party upon the presentment To the first it was answered by councell on the other side that it is not necessary to shew by what authority the Court was held for their Authority is by Act of Parliament and it is a publique Act to be taken notice of Roll the chief Iustice answered That it is a private Act made for the City of London and concerned the Lord Maior though part of it be publique Statute for part of an Act may be publique and another part of it private and of that part which is private we are not bound to take notice and it was here said that in criminal causes Errors in proceedings are not helped by a verdict Notice Roll took an exception that the endictment was only contra pacem publicam Ieofail Indictment whereas at that time when it was preferred it ought to have been contra pacem nuper domini Regis contra pacem publicam nunc Adjourned 23 Car in the Kings Bench. Pasc 1650. rot 414. Cremer Plantiff in a Replevin Burnet Avowant in a Replevin THe Plaintiff complains for the taking of his Cattell Whether a copyhold estate be extinct by the Kings leasing it for life to wit a Horse Colt and three Mares the 13 of Ianuary 21 Car. at Chingford in the County of Essex in a close there called Pipers down THe Defendant avows the taking of the Cattel in loco quo c. as Bailiff unto Thomas Boothbye as damage feasant in the Close aforesaid being the soil and the freehold of the said Thomas Boothby Vpon the pleading the case appeared to be as followeth KIng Henry the 8. being seised in Fée in the right of his Crown in the maner of Chingford Comitis in the County of Essex of which manour a certain tenement called Lormiers
the grant of the Office of the Custody of the house is a good lease for life notwithstanding it was Copyhold and it is not necessary to recite in the grant that it is Copyhold 2. That after the estate for life is determined the King may grant the house and land again by Copy of Court Roll because the Kings grants shall be taken favourably and not extended to two intents where there is no necessity for it as there is not here and we are not here to intend a collateral intent and so the Copyhold is not destroyed for the Law takes care to preserve the inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copyhold viz. to have Common c. and his election is also destroyed if he may not have it Copyhold So Iudgement was given for the Plaintif nisi Pawsey and Lowdall Pasc 1651. Banc. sup Pasc 1650. rot 275. IN this Case formerly argued Roll chief Iustice Iudgement reversed upon a special Verdict touching a Devise of Copyhold lands and Nicholas and Ask Iustices agreed that the devise of the Copyhold here is a devise to the Heirs of the Father and so a Fee-simple and that the party comes not in as a purchaser and for this cause the judgement was reversed nisi As to the other point whether the surrender of a Copyhold by a Tenant for life be good in this case the Court delivered no opinion Antea Trundall and Trowell Pasch 1651. Banc. sup Hill 1650. rot 670. IN this Case it was held that Tenant in antient Demesn cannot after imparlance plead antient Demesn for he hath made a full defence Where antient Demesne cannot be pleaded for he says Defendit vim et injuriam quando c. which implyes all the rest Mich. 22 Car. Banc. Reg. Yet it was ruled to be again spoken to Peck against Ingram Pasch 1651. Banc. sup THis Case formerly spoken in was moved again and Latch held Whether a good notice that the words obtulit se in maritagium conjungi was a good notice upon the whole matter and therefore that the Action did well lye Roll chief Iustice answered this is a personal thing and ought to be offered to the party himself otherwise it is no notice and that doth not appear here and if there be no notice implyed then the Action lies not and Holmes and Twists case is that there ought to be notice if the thing be to be done by the party himself otherwise if it be to be done by a stranger so is it here but the question only is if notice be implyed here or not Ierman Iustice said there is no tender of mariage if the other party be not there The rule was for the Plaintif to take his Iudgement Rooke against Smith Pasch 1651. Banc. sup ROoke brought an Action upon the case against Smith for speaking these words of him Thou art a poor fellow Arrest of Iudgement in an Action upon the Case for words and art not able to pay 2s in the pound and art not able to pay thy debts Vpon an Issue joyned and a Verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable for 1. the Plaintif is not by them charged with the crime of being a Bankrupt and so there is no particular losse to him 2ly It is not showed that the Plaintiff got his living by buying and selling or that he is indebted and 11. Iac. Brook and Clarks case was cited Twisden on the other side answered that the Plaintiffs credit was impaired by the words and by his credit his livelyhood is in part mainteyned And he cited Viccary and Barns case Adjourned to the next Term. Wild afterwards moved again for Iudgement because the words being spoken of a tradesman he conceived them to be actionable Maynard on the other side held them not actionable because there is no particular damage alleged to grow to the Plaintif by speaking of them and because there is no crime objected against the Plaintiff for poverty is no crime but a man may be poor and honest at the same time and he cited two cases to be adjudged that a particular damage ought to be alleged And said that these Actions are not favoured in Law and therefore if the words be not cleerly Actionable it was not reason to make a forced construction of them to make them so Next the Plaintiff hath not averred that he was able to pay all his debts for all the things bought but only of a debt contracted by the buying of the Oyl mentioned Twisden denyed the cases put by Maynard of the particular damage and held the words actionable Roll chief Iustice said a man may be a Bankrupt and yet be honest for he may become so by accident Averment and not of purpose to deceive his creditors But here is no need for the Plaintiff to shew he had a particular losse by the words for it is enough that he is generally scandalised by them neither is it necessary for him to averr that he was able to pay all his debts as Maynard hath alleged Therefore let the Plaintiff have his Iudgement nisi Antea Owen against Jevon Trin. 1651. Banc. sup Pasc 1651. rot 211. OWen brought an Action of the case against Ievon for speaking these words of her Arrest â—f judgement in Action for words viz. This is the whore that my man Cowell begat a bastard on and spent all my mony upon and the quean hath been too long in Town to my ease Vpon an issue joyned and a verdict for the Plaintiff Twisden for the Defendant in arrest of Iudgment urged that the words are not actionable because there is no special losse or damage alleaged by the Plaintiff hapning to her by reason of the words said that in one Lighfoot and Pigots case it had béen ruled that an Action lies not for saying a woman had a Bastard and he cited also Winter and Barnards case Trin. 1650. in this Court. Vpon these reasons Iudgment was stayed till the other side should move Iay against Iay. Trin. 1651. Banc. sup Trin. 1650. rot 1350. THis case formerly put and spoken to Argument in a special verdict touching the consideration of the words of a will was again spoken unto by Latch wherein he made this question viz. whether the limitation to I. and his Heirs were good or not and he held it was not good for he said that such limitation in case of a freehold is void He confessed that in the case of Pell and Brown 17 Iac. rot 44. the contrary was adjudged but that there did appear such apparent inconvenience in it that upon it the Court was afterwards divided and 21 Iac. in the Serjeants case it was made a flat quaere and ever since it hath been disputable whether a contingent devise be good or not and in Iacob and Tellings case it is not
pacty who is to assign the dower may agrée that the dower shall be assigned without bounding it For consensus tollit errorem But dower ad ostium ecclesiae must be more certain Dower Mich. 43 44 Eliz. Bullock and Finches case Hill 4 Iac. C. B. Roll chief Iustice Of Common right a feme ought to be endowed per metas bundas where the Sheriff assigns dower who is an officer of the Law and ought to prevent incumbrance and disputes But it may be assigned generally of the third part in some cases Consent and the partyes may agree against Common right and here both partyes agreed to take dower in this Manor And though here the termer for years of the land who is a third person be prejudiced by this assignment yet this alters not the case because it is only an estate for years and toucheth no freehold Nicholas and Ask Iustices as Roll. Ierman Iustice If dower be of a third part it ought to be by metes and bounds generally but if it be of a moyety it is not so or if the partyes consent it shall be otherwise Roll if the Sheriff assign dower and do it not per metas bundas it is Error Error if it might have been so assigned and where a feme cannot be endowed per metas bund as she may enter without assignment Iudgement was given for the Defendant nisi c. Smith against the Earl of Dorset Trin. 1651. Banc. sup SMith moved the Court against the Earl of Dorset Motion for an attatchment for disobeying a rule of Court Attatchment for an attatchment for disturbing of him in the possession of certain Lands contrary to the rule of this Court for the Plaintiff to have possession The Court answered that for only disturbing his possession there ought not to be an attatchment granted but if he be put out of possession he shall have an attatchment The Councel replyed that the partyes cattel were driven off from the land which they conceived was an ousting of the party from his possession To this the Court answered that this seemed to be a putting out of possession And therefore ordered that the Defendant should shew cause why an attatchment should not be granted Owen against Ievon Trin. 1651. Banc. sup Pasc 1651. rot 211. THis case formerly spoken unto in arrest of Iudgement and then stayed Iudgement prayed in an Action for words was again moved and Iudgment prayed for the Plaintiff by Serjeant Glyn who argued that the words were actionable because if they were true the party of whom they are spoken is punishable by the Statute of 7 Iac. with corporal punishment and besides the words were spoken since the last Statute made against Adultery which doth aggravate the words and make them more actionable Iudgement was given for the Plaintiff nisi In this case it was said by the Court that it was adjudged in one Thecker and Duncombes case that a woman may have a child in 38. weeks and that a woman by cold or hard usage may go with child above 40 weeks Antea Nelson against Tompson Trin. 1651. Banc. sup Trin. 24 Car. rot 343. NElson brought an action of the Case against Tompson Demurrer in an Action upon the Case upon a promise and did declare that the Defendant in consideration that the Plaintif would cease to prosecute a sute in Law against him did assume and promise unto the Plaintif that he would pay unto him 8 l. the charges of sute which he had been at for breach of this promise Actio acrevit sets forth his damage To this Declaration the Defendant demurs in Law takes this Exception viz. That there is no time nor place set forth where or when he did forbear to sue the Defendant as it ought to be because it is a traversable matter But Roll chief Iustice answered It is not necessary to allege a place of a negative thing to be done viz. to say that he did not prosecute the sute in such a place or at such a time for he ought to surcease prosecution in all places and at all times Therefore let judgement be for the Plaintif except better matter be shewn Friday next Lydaâ—e and Lyster Trin. 1651. Banc. sup Mich. 1650. rot 387. AN Action of Debt was brought upon an Obligation made to a Bishop and his Commissary for the payment of Debts and Legacies Iudgement in Debt upon a Bond reversed the Action was brought by an Executor and judgement given by Default against the Defendant the Iudgement was reversed by a Writ of Error because the Action was brought in the Debet and Detinet whereas it ought to have been brought in the Detinet only because it was brought by an Executor Saunders against Ritch Trin. 1651 Banc. sup Hill 1649. rot 758. IN an Action of Trespass and Ejectment upon a special verdict found The Case fell out to be this Special Verdict in Trespass and Ejectment A man by his last Will and Testament devised all his Fée simple land wheresoever to his Brother upon condition that he suffer his wife to enjoy all his free lands in Holford during her life and the jury found that the Testator had only a portion of tithes in Holford The question was whether the portion of tithes did pass to the wife by this devise Merifield held That the Tithes passed not by the devise because the word lands cannot extend to tithes for that would be a very forced construction and cited Trin. 17 Iac. Banc. Reg. Knight and Knights case and Mich. 39 40 Eliz. Entred 38 Eliz. rot 269. Yow and Hardings case Banc. Reg. That Houses are not devisable by the name of lands and he said that the word wheresoever makes no difference as to make the tithes pass and though there be an implication and an intent in the Testator here to dedevise the tithes yet that will not serve because there wants words to express this intent and though this be in a will yet there must be words used to support the intent of the Testator for wills must be ruled by the rules of the Common Law Ashinghurst and Curtice his case Mich. 7 Iac. Hob. rep 34. the last Edition Mich. 42 43 Eliz. Banc. Reg. a devise of Lands extend not to tithes for tithes are not lands but a meer collateral thing to them and have no relation to them Mich. 1. Iac. rot 192. Mills and Hides case Banc. Reg. 11 Rep. Bridle and Napers case f. 13. b. Trin. 42 Eliz. B. Reg. Sherwood and Winston held that tithes cannot be appendant to a Manor 1 Rep. 111. Albanies case and here are no words in the Proviso to pass the tithes It is true that tithes may lie in tenure and that an Action of debt lies for them but that is by the Statute 19 Eliz Dyer f. 354. The word land in a will doth not extend to tithes and heirs ought not to be
a Legacie and it may be there are debts owing which are to be paid before Legacies and here doth not appear to be any assets in the Executors hands besides this debt and if the Testator would have released it he ought to have done it by a deed Roll chief Iustice What shall the Executor do in this case I conceive it is a strong case for the Executor and that it is very unreasonable that the Testator should make such a devise and here is no consent of Mary the Executor expressed to this release besides a will cannot release a thing created by deed and so discharge Creditors Nicholas and Ask Iustices concurred But Ierman Iustice doubted For a fault in the writ of Error and imperfection in the record certifyed the Iudgment was not then affirmed Afterward Sir Humphrey Style preferred his bill in Chancery to be releived herein and obteyned an injunction till hearing but upon a hearing at the Rolls could get no relief but was ordered to pay 100 l. or else the injunction to be dissolved Q. Nota. Hamond against Ward Trin. 1651. Banc. sup Pasc 1650. rot 58. AN Action of debt was brought against the Defendant Error to reverse a judgment in debt upon an insimul computaverunt upon an insimul Computaverunt and a verdict and a Iudgement given against him whereupon he brought his writ of Error and assigns for Error that the Action was brought against him for rent as a Tenant of land and not as a receiver and that therefore an accompt did not lye Roll chief Iustice cited 20 H. 6. that rent alone lyes not in accompt because rent is a certain thing and it is also in the realty but if rent be mixed with other things an accompt will lye Accompt but here it appears the Action is brought against the Defendant as a receiver and if one receive mony due to me upon an obligation I shall have either an Action of accompt Debt or an Action of debt against him so if he receive my rents without my consent Therefore let the Iudgement be affirmed Alleyn against Holden Trin. 1651. Banc. sup Entred Pasc 1650. AN Action of debt was brought against an Heir who pleads riens per discent Error to reverse a judgment in debt against an Heir Iudgment was given against him upon a nihil dicit a writ of enquiry was awarded without the prayer of the party and a special Iudgement thereupon given against the Defendant Vpon a writ of Error brought to reverse this Iudgement it was alleaged for Error that the Iudgement ought to have been a general Iudgement and there ought not to have been a writ of enquiry except the party had prayed it and to this the Court enclined and Roll chief Iustice said that it is otherwise in an Action against an Executor for there assets may be found At another day Roll chief Iustice said Writ of inquiry if the Heir plead riens per discent and if it be a false plea a general Iudgement ought to be against him and there shall be no writ to enquire what lands he hath and it is not necessary as here it is to have a special Iudgement Iudgement that the Plaintiff shall recover of the lands discended for the Iudgement ought to be that the Defendants body and goods be lyable and half his lands and not as it is here a writ to enquire and find what lands he hath by discent Reverset nisi Barcock against Tompson Trin. 1651. Banc. sup THis case was again spoken unto Error brought by the Bail to verse a judgment given against the principal which was this A Iudgement was given in the Comon pleas against the principal without an original upon this Iudgment there issued out a scire facias against the Bail two nichils returned and thereupon Iudgment was given against the Bail a writ of Error was brought by the Bail to reverse this Iudgment And it was now argued by Hales of Councel for the writ of Error that the Iudgment was erroneous because it being given upon a scire facias which is a judicial writ it ought to be grounded upon an original and it not being so here it is Error in fact although it be not Error in Law To this it was answered that two nichils returned upon a scire facias amount to a scire seci and a judgment given thereupon is good and therefore it is too late now to say that the scire facias was not well executed Brook Sc. fac 96. 28. 17 Car. C. B. To this Hales said there was a Iudgement against us in the Common pleas so that we could urge nothing against the scire facias there but here we may Roll chief Iustice answered it is to some purpose to make up the record upon the two nichils otherwise there would be no end of things and the Iudgement is well given by the Iudges and how can you now make Error in it Iudgement and if you be inconvenienced by the Iudgement you are not without remedy Error for you may bring an Audita querela and you might have pleaded to the scire facias nul tief record for it is not matter of fact And therefore shew better matter why the Iudgement shall not be affirmed Audita querela and take liberty to bring an Audita querela Antea Tucker against Cosh Trin. 1651 Banc. sup Entred Trin. 1650. rot 388. TVcker brought a replevin against Cosh Special verdict in a replevin for distreining his Cattel The Defendant makes conusance as Baily to I. S. and upon the Avowry the case fell out to be this A tradesman in consideration of mariage made a conveyance of his lands to the use of himself and of his wife and afterwards becomes a Banckrupt and a commission of Bankrupt is taken out against him and the lands of the Bankrupt are sold by the Commissioners to the avowant that took the distress The question here was whether this conveyance made by the Bankrupt of his lands was within the Statute of fraudulent conveyances or not and the sale made by the Commissioners of this land were good Maynard for the Plaintif argued that it is not within any of the Statutes of Bankrupts The Déed here is without fraud and so it is not within the Statute for a valuable consideration is only expressed in the Statute and not a conveyance upon consideration of mariage as it was in our case 2ly The Feme is but one person with her Husband 3ly By comparing the Statutes together it appears that the wife is not comprised within the Statute of 1 Iacobi which looks back to other Statutes touching Bankrupts for the wife is not named in the Statute of 1 Iacobi but only children and other persons otherwise the words of the Act which do enumerate children and other persons would be frivolous and idle Roll chief Iustice said the Case is of great consequence and
Crisp and Prats case doth somewhat resemble this Bankrupt The Law intends a Bankrupt which is so by fraud as well as a Bankrupt who becomes so by accident and for this cause is he called an Offender in the Statute and here the year of our Lord 1637 is the 13 year of the late King the recovery suffered by the Bankrupt was then and within half a year after the recovery he became a Bankrupt so that me thinks there plainly appears to be fraud in the Conveyance Fraud but the fraud is not expressed in the pleading as it might have been The Statute of 1 Iac. is somewhat doubtfull as I conceive and I do not sée any provision made in it against the wife if fraud do not appear for here is no valuable consideration mentioned Nicholas justice said it is doubtfull yet he conceived it within the Statute of 1 Iac. which ought to receive a large construction because it was made for the good of the Commonwealth Ierman and Ask agreed with Roll in omnibus Roll Here the matter in dispute is not in a special Verdict but comes in question upon point of pleading Pleading which shall be taken most strong against him that pleads it and he hath not expressed any valuable consideration as he might have done by saying in consideration of a portion or in recompence of mariage or in performance of Articles made upon mariage or that the wife had joyned in selling some part of the land The Court would advise but enclined judgement ought to be for the Avowant Afterwards judgement was given accordingly for the Court held the wife was within the Statute of 1 Iac. and the providing for wife and children to be providing for himself Chapman against Brook Trin. 1651. Banc. sup Trin. 1650. rot 200. IN an Action upon the Case the Plaintif declared upon a Custom of commoning in such a place The Defendant demurred to the Declaration Demurrer to a Declaration in an Action on the Case and for cause shews that the Custom was not well laid for the Plaintif declares of a Custom of commoning pro averiis viz. pro equis bobus equabus et pullis and the word pullis is of an uncertain signification for it may signifie a Calf a Lamb or any other young Beast or Foul and 23 Car. Segar and Dyers Case was cited The Court held the exception good and said that it is incertain what is meant by the word pullus and said that if the prescripsion had been pro omnibus averiis it had been good Prescription and the viz. should have been void but here it is only pro averiis Therefore nil capiat per billam Newton against Godard Trin. 1651. Banc. sup A Writ of Error was brought to reverse a judgement given in an Action of Debt at Ipswitch Error to reverse a judgement in debt The Case was this There issued out a Capias against the Principal and a judgement was given against him and after a scire facias issued out against the Bail and a judgement thereupon was given against the Bail Then the Plaintif takes out an Execution viz. a fieri facias against the Principal and Bail upon both the judgements to levy the debt recovered upon the goods and chattels of the Principal and Bail or either of them It was alleged that the execution thus taken out was not good for there ought to have been several executions upon the several judgements Execution and not one execution and to this the Court agreed and ordered the Defendant in the writ of Error to shew cause why the judgement should not be reversed In this Case Roll chief Iustice took an exception to the scire facias Abreviation because it was scire fac with a dash which might be as well scire faciatis as scire facias Spittlehouse against Farmery Trin. 1651. Banc. sup Hill 1650. rot 43. AN Action of accompt was brought against a Feme Covert an Administratrix and her Husband in the Common Pleas Error to reverse a judgment â— ven in an Action of Accompt and judgement given against the Defendants quod computent The Feme dies and the Husband brings a writ of Error in this Court to reverse this Iudgement Roll chief Iustice held that the writ of Error did not lie because the Record cannot be removed by it for that would disturb the proceedings in the Common Pleas and the party would have no fruit of his sute if the Record should be removed nor any remedy to recover the arrears due unto him Original Scire facias Yet the Original is determined by the Iudgement given quod computent and a scire facias lies by the Executor as the case here is Ierman Iustice to the same effect and cited 1 H. 7. f. 2. Nicholas Iustice to the same intent and said he did not much regard the Book of 21 Ed. 3. because there are other Books against it Ask Iustice ad idem Roll chief Iustice put these cases A judgement was given in Dower for the Demandant and another judgement that she shall recover her damages and this second judgement for the damages was reversed by a writ of Error because she did not aver that her Husband died seised in which case she is to have no damages Iudgement yet the first judgement for the Dower stood unreversed and Hill 43 Eliz. C. B. in one Williams and Whites case in an â—â—ction of Accompt 2 judgements were given and the second wâ—s reversed and the first stood unreversed In the principle case the rule was judicium nisi VVallis against Bucknal Trin. 1651. Banc. sup Trin. 1649. rot 600. VPon a special Verdict the case fell out to be this Sâ—ecâ—al verdict upon a Custom of a Manor One selfe d of Copy-hold lands of inhâ—ritance made a Letter of Attorney unto two joyntly and severally to surrender the lands after his death to certain uses according to the Custom of the Manor The question was whether this was a good Custom or no. Ellis of Councel with the Plaintif argued that it was not a good Custom because a Custom ought to be reasonable but this Custom is unreasonable because it is not only against a particular Law but it is against the general rule of Law to pass estates of inheritance in such a Manor and although particular Customs may be against publique interest pro boâ—o publico yet this is nothing to our case for this is not for the publique good and therefore it is not good 2ly An authority ought to be countermandable and to determine by the death of the party that gives the authority but here it is not so but it is to continue after his death Next no man can give authority to another to do a thing which he himself could not do but here it is otherwise and therefore it is not good Also by the death of the Copyholder the Law settles the lands in the
was a grant but of part of the reversion of the land which case comes not within the Statute for the Grantor cannot have advantage by the Statute where he grants but part of the reversion and it is not literally without the Statute and therefore it is within the equity of it otherwise it would be mischievous to the Grantor and here is no disadvantage to the Lessée by the transferring of the condition for the same Statute that gives benefit of the condition gives benefit of the Covenants and the Grantée of a reversion shall have benefit of a Covenant to be transferred although they are entire in words at the beginning and hath one common conclusion Wild of Councel on the other side held the condition to be entire according to Rawlins case and goes to payment of the rent and the fine and reparations also and the reversion being assigned with which the rent passeth the condition is gone also to the fine Dyer 309. and this is a stronger case than that to destroy the entire condition by grant of the reversion 17 El. Brightmans case C. B. The fine here is a sum collateral and is not incident to the reversion and so the condition is collateral and cannot be apportioned 5. rep Spencers case 34.8 Br. Cov. 93. 2ly The Statute of 32 H. 8. cannot help it for the purview of the Statute explains the large preamble of the Statute and shews the intent of the makers of it to be for forfeitures incident to lands and reversions and a covenant is here as general as a condition and the Statute extends not to a collateral covenant and therefore not to a condition collateral 35 H. 6. f. 56. Condition and the cases put on the other side come not to our case And as for the mischief which may ensue by this it matters not for it might have been prevented by providence of the partyes and the inconveniences which may happen to them must not alter the Law Roll chief Iustice said if he release the fine the condition will not stand as to the rest otherwise if the fine expire by effluxion of time or if he release the reparations the condition is gone as to the rest for the condition here is entire and goes in the destruction of the Estate and it is the Act of the Lessor himself to assign over the reversion and by that all is passed away that is incident to it and by consequence the condition Ierman Iustice demanded What if the Lessor shall pay all the fine presently Roll chief Iustice answered it may be it will destroy the condition Nicholas Iustice said the condition is odious in Law because it goes in destruction of the Estate Adjourned to be argued again because held a case of consequence At another day the case was moved again and argued by Latch for the Plaintiff who made the question to be whether the condition as it is penned may be severed or no and said that as it respects the rent it is not a condition in grosse but as it respects the fine it is a condition in grosse and a condition which is entire in words may by acts of Law receive distributions Where the penalty of a condition is intire there the condition cannot be apportioned but the condition is not so here and therefore may be apportioned Dyer 30â— Knights case â— H. 7.6 Perkins 162. 7. H. 7 Kelm 60. Dyer 334. Popham in Dumports case is contrary to Dyer Cook Lit. 203. 2ly It is questionable whether the Statute may help in our case and he said it doth for the name of rent is not altered nor the condition attending upon it nor any thing done to alter the execution of the condition 3ly By the assignment there is no injury done to the Lessée for by it here is a freeing of a thing to be done and the Statute is a favourable Statute and to be extended with indifferency Finch on the other side argued much to the same effect as he did formerly Roll chief Iustice said it is not necessary for the party to express how the condition relates to all viz. the re-entry for non payment of the rent and of the fine and for not repairing and he said a man cannot by his own Act divide a condition for we must keep the rule of law which is not to divide a condition which goes in destruction of an Estate and this case is not within the Statute of 32 H. 8. All the rest of the Iudges concurred with Roll and so the rule was judicium pro defendente nisi Brown against Nelson Hill 1651. Banc. sup Trin. Hill 1650 rot 897. AN Action of Debt upon the Statute 7 Ed. 6. for selling of wine without licence Whether a Iudgement given against one of two Defendants were good was brought against 2. Defendants they both plead nil debâ—t whereupon issue being joyned a special verdict was found viz. that as to one nil debet and that as to the other he had drawn a pint of wine without licence and upon this Iudgement was given against him that was found culpable It was questioned whether this were a good judgment But Roll chief Iustice concluded it was à good Iudgement and cited many cases adjudged in point to prove it and one in particular in an action upon the Statute for dying with Logwood and he took a difference between an action grounded upon a joynt contract or a joynt trespasse and an Action brought joyntly upon a Statute against two or for a tort done by two as this is upon the Statute In the first case Iudgement cannot be given against one of the contractors in the other it may Weld against Rumney Hill 1651 Banc. sup Hill 1650. rot 1193. A Writ of error was brought to reverse a Iudgement given in an Action upon the case against two Executors Error to reverse a judgment in an action on the case and the error assigned was a matter in fact viz. that one of the Defendants was within age at the time of the Action brought and did appear and plead by his Attorney whereas he ought to have done it by his guardian Twisden for the Defendant in the writ of Error said that it is not all one to appear within age in his own right and in anothers right for where he appears in his own right he ought to appear by his guardian but where he appears in auter droit as he doth here being an Executor he may appear by Attorney and cited Draytons case 9 Car. Appearance But Roll chief Iustice denyed the difference and said it may be that the Executor may be charged of his proper goods as in case he have wasted the Testators goods and then it is not reason but he should plead by his guardian and he is not within the Statute of 21 Iac. for that Statute was made for the Plaintiff and this is in case of a Defendant therefore he should have appeared by
Plaintiff it was moved in arrest of Iudgement that the words are not actionable 1. Because the words spoken are of spiritual conusance and punishable in the Ecclesiastical Court and not at the Common Law 2ly The party may keep a Bawdy House and not know it to be such and then he is not punishable for it and so cannot be prejudiced by the speaking of the words 3ly Case There is no Statute against keeping of a Bawdy house as the Declaration lays it but for keeping of a Common Bawdy house But Ierman Nicholas and Ask Iustices Roll chief Iustice being absent held that the words are actionable for the keeping of a Bawdy house is an offence punishable at the Common Law as being a misdemeanor and breach of the peace and therefore ordered judgement to be entred except cause should be shewn to the contrary Saturday next Green against How Pasch 652. Banc. sup Entred Hill 1651. rot 1295. Q. PAnel moved for How the Defendant to arrest judgement after a verdict given against him for Green the Plaintif in an action upon the Case brought for speaking these words of her viz. Arrest of Iudgement in aâ— Acti â—n upon the Case for words You are a Whore and a Iade and a strumpetly Whore and I will prove you a Common Whore his Exception was that the words are not in themselves actionable for they are but words of choler and heat and the Plaintif is not brought within danger of the late Statute made against whoredom by the speaking of them and he cited for authority Freeman and Childers case Trin. 1651. rot 45. where these words viz. You are a Whore I will prove you an arrant Whore were adjudged not actionable The rule was to stay judgement till the Plaintif should move Barcock against Tompson Pasch 1652. Banc. sup Mich. 1650. rot 444. IN an Audita querela the Case was this Where an Audita querela lies for the Bail upon an erronious judgement against the principal An Action of Debt was brought against the Principal and a judgement upon a nihil dicit obtained but no capias ad satisfaciendum issued forth against him Afterwards 2 scire facias were taken out against the Bail and 2 nâ—chils thereupon returned and thereupon judgement was given against the Bail who thereupon brings his Audita querela The Question was whether the Audita querela did lie or not in regard that the scire facias issued forth against the Bail before any capias ad satisfaciendum was taken forth upon the judgement upon the nihil dicit against the Principal Green of Councel with the Defendant held that the Audita querela did not lie because that the party hath other remedy to relieve himself and therefore the Audita querela lies not for that is given only where the other party hath no other remedy 21 E. 3. f. 12. Brook Audita quer 18. And besides here are two nichils returned against the party which do amount to a scire feci and so the party is warned and therefore he comes now too late to have his Audita querela for here is as much as a judgement by default after an appearance and here is no release and there is a judgement executed and in force and not reversed by the Principal Green and Le Grices case Pasch 39. Sir Francis Mores Reports Wild for the Plaintif held that the Audita querela did well lie because that no scire facias ought to have issued against the Bail before a capias ad satisfaciendum taken forth against the Principal And an Audita querela is in the nature of a sute in Chancery and the party comes soon enough here to be relieved though the scire facias be returned for the return thereof shall not bar him from his Audita querela although it be now too late for him to reverse the judgement by a writ of Error and the books 21 E. 3.13 and Kelw. 23 24. are in the very point And the party by the return of the 2 nichils is not in Court And in Mores Reports in Hobs and Todcasters case 38 Eliz. it is adjudged that an Audita querela doth lie Roll chief Iustice when one is Bail in the Common Pleas he is bound to bring in the body of the Principal Bail or to pay the debt And Pomeroys case is that until a Capias be returned against the Principal the Bail cannot forfeit his Recognisance Recognisance Forfeiture for the non-appearance of the Principal for the filing of the Capias is not sufficient but it must be returned And this was the antient course there and the Law so held to be but by usage of later times and out of indulgence shewed to the Bail it hath been held sufficient for the Bail to bring in the principal after the retorn of the Capias and now at this day out of greater indulgence afforded unto the Bail it is well enough if the Bail bring in the Principal at any time before the return of the second scire facias but after it is returned then it is too late for him to bring him in Error and that is the reason that in such Case a writ of Error lies not for the Bail to reverse the judgement against the Principal If a scire facias be brought against the Bail and he pleads that the Principal dyed before the return of the Capias against him it is adjudged to be a good plea for the Bail to discharge himself Plea but to plead he dyed after the return is not good And it is a good plea for the Bail in a scire facias brought against him to say that no capias was returned against the Principal And here is a good discharge in Law against the Bail But the question here is whether the return of the two Nichils be not a Bar to him now and that he hath not thereby lost his advantage to bring his Audita querela Audita querela because by the return thereof the party is supposed to have notice and therefore a writ of Error clearly lies not to reverse this judgement though it be upon a nihil dicit And as to that in as much as the party hath no other remedy to help himself and it is apparent that he is damnified by an undue judgment it is reason he should bring his Audita querela Barns and Corbets case The Bail cannot say the Principal hath paid the money if he have not an acquittance or matter of Record to prove it and in Sir John Mounsons case upon two nichils returned adjudged that the party might have his Audita querela and therefore the Plaintif ought to have his Iudgement Ierman Iustice dissented But Nicholas Iustice absente Ask agreed with Roll and said that for want of the return of the Capias the judgement was erronious and the 2 scire facias might be returned behind the parties back therefore it could not be said to be all
to be within the Statute of 7 Ed. 6. If the Statute give liberty to Iustices of peace and Oyer and Terminer or Iustices of assise to enquire of this offence then an information cannot be preferred in a County where the offence was not done and the meaning of the Statute 21 Iac. is not to put the party without remedy and if he cannot sue by the Statute of 7 Ed. 6. in the County where the offence was committed then this Statute of 21 Iac. bars him not to prefer an information in another County Latch of Councel against the enformer said that by the Statute of 7 Ed. 6. an information lyes before Iustices of Peace or Assise or Gaol delivery Roll chief Iustice I deny that by the Statute of 7 Ed. 6. the information could not have béen brought in any other place but in the Courts at Westminster and therefore that it is not necessary to bring it in the County where the fact is done notwithstanding the Statute of 21 Iac. ◠it is reason it should be so because that no jurisdiction is given by the Stat. of 21. Iac to Iustices where they had no power before And the Court of Record expressed in the Stat. of 7 Ed. 6. shall be intended one of the Courts at Westminster and not a Court of Record else-where Therefore shew cause why the Iudgement shall not be affirmed Tench and Hubrison Mich. 1652. Banc. sup IN the Case of Tench and Hubrison upon a motion for a prohibition to the Court of Admiralty The Court of the Admiralty cannot proceed criminally It was held by the Court that the Court of Admiralty cannot proceed criminally against one that is in contempt to the Court. Yet the Court said they would here the Civilians if they would speak in it Saturday following Cydall and Spencer and others Mich. 1652. Banc. sup IN the Tryal between Cydall and Spencer and others Where one may have Election in an Ejectione firmae it was said by the Court. That if one do disseise me of part of a house and I am in possession of the rest of it It is at my election whether I will admit my self out of possession of the house or not Long and Hebb and others Mich. 1652. Banc. sup IN a Tryal between Long and Hebb and others To what time Letters of administration shall relate Relation Trespass Trover it was said by Roll chief Iustice that Letters of Administration do relate to the time of the death of the Intestate and not to the time of granting of them and therefore an Administrator may bring an Action of Trespass or a Trover and Conversion for goods of the Intestate taken by one before the Letters granted unto him otherwise there would be no remedy for this wrong done Mich. 1652 Banc. sup THe Court was moved to change the Venue in an Action brought for an escape But Roll chief Iustice said it ought not to to be changed Where the Venue may not be changed for an escape is not local but transitory for an escape in one place is an escape in all places Sidenham Mich. 1652. Banc. sup IN the Case of one Sidenham Roll chief Iustice said Where one may vary from his plea. It had been a question Whether if one plead payment at a day he shall be admitted afterwards to plead another plea. Watts and Lowth Mich. 1652. Banc. sup AN Action upon the Case was brought upon divers Assumpsits Arrest of Iudgement in an Action upon an Assumpsit and a Verdict given for the Plaintif It was moved in Arrest of judgement that the Iury had given more damages than were laid in the Declaration whereas it was but a mis-casting in the quae in toto attingunt Roll chief Iustice said That the mis-casting is nothing if the damages given by the Iury be not more than the Plaintif hath laid in his Declaration Verdict And therefore let him have his judgement Gough and Cann Mich. 1652. Banc. sp IN an Action brought for a Rescous Arrest of judgement in an Action for a Rescous and a Verdict found for the Plaintif these Exception were offered in Arrest of Iudgement 1. whereas he speaks of the next Court he doth not shew where that next Court was held 2. The time of the Arrest is not shewed upon which the Rescous is supposed to be made 3. It is not shewed that the party rescowed was in custody of the Serjeant from whom he was rescowed 4. It is not shewed before whom the Plaint was upon which the Arrest was made 5. The venire is ill awarded for it is to the Coroners where it ought to be to the other Sherif if one be a kin to the party and Latch offered this Exception that the Declaration sounds in Trespass which Action doth not here lie for the party Election Trespass Case But to that Roll chief Iustice answered that it is in the election of the party to have an action upon the Case or an Action of Trespass for an Action of the Case or an Action of Trespass lies at the election of the party against one for taking away his Wife And he demanded whether the two Sherifs of Bristow where the Rescous was brought were not one Sherif and whether the venire was not helped by the Statute And it does also appear that the party was in custody by vertue of the Process and it is now after a Verdict And he said that if one rescue the party who is arrested at my sute because that after the party is arrested I have an interest in the body of the party Rescous this Rescous is a Trespass to me for which I may well maintain an Action of Trespass And Ierman Iustice said Pledge that the body of the party arrested for debt is a pledge for the debt it self Iudgement was given for the Plaintif Liniston and Maurice Mich. 1652. Banc. sup THe Case was this Arrest of Iudgement in an Action of Trespass for not carrying away tithes An Action of Trespass was brought against a Parson for not carrying away his Tithes in due time The Defendant pleads that the Plaintiff gave him no notice to fetch away his Tithes the Plaintif replies that he did give him notice but doth not shew where he gave him notice and upon this Exception judgement was stayed Afterwards Baldwin of the Inner Temple moved for judgement and alleged that the not alleging the place was no Error Nicholas Iustice what say you to Durdens Case Roll chief Iustice There are many cases where the place is not material yet it must be alleged for the Venue Place If Debt be brought against an Executor and he plead fully administred if the Plaintiff reply that he hath assets he ought to allege the place where he hath assets And I conceive that there ought to be a place alleged here Repleader that a Iury who are nearest the place and so may have the best
knowledge of the matter may try it although it may be tryed in another place but if the tryal be ill the Verdict will not help it but there must be a new tryal Therefore it were good to replead as to the place Mich. 1652. Banc. sup ONe took out a Latitat out of this Court and arrests the party Attachment for abusing the processe of the Court. and refuseth to take Bail of him but carryed him into another liberty to charge him with an Action there Vpon this the Court was moved for an Attachment for abusing the processe of this Court And it was granted nisi c. Mich. 1652. Banc. sup IN a tryal at the Bar between â—heesman and Turner and others in Trespass and Ejectment Roll chief Iustice said Where ne unques Executor is a good Plea Revocation Reviver That if there be divers Executors of one Will and one of them refuse to prove the Wil he may plead ne unques Executor And that a Will in writing may be revoked by parol and revived again by parol Theoball and Conquest Mich. 1652. Banc. sup Trin. 1652. rot 1999. AFter a Verdict in an Action of Trespass and Ejectment it was moved in Arrest of judgement that the Lease was altered after pleading Arrest of Iudgement in Trespass and Ejectment On the other side it was moved for judgement 1. Because the Lease was only amended in matter of form and not in substance 2ly Because by the rule of Court the Defendant is to confesse the Lease and so it is not material whether the Lease be good or no. But Roll chief Iustice answered that the Lease was amended in matter of substance and if the Lease be defective we can give no judgement Amendment Iudgement Confession and by your own shewing it is not good and the rule of the Court doth not bind the Defendant to confesse the Lease otherwise than you have made it and therefore let the judgement be stayed Fowke and Boyle Mich 1652. Banc. sup Trin. 1652. rot 460. THe Plaintif brought an Action upon the Case for selling unto him false Bills of publique faith to the value of 800 l. knowing them to be false Demurrer to a Declaration in Action upon the case with an intent to deceive him The Defendant demurs upon the Declaration And Babington of the Inner Temple offered these Exceptions to it 1. That the Ordinance of Parliament for the bringing in of money plate into Guild hall and giving the Commissioners authority to give these bills to them that brought it in for re-payment thereof with interest at 8 l. per centum per â—â—num was mis-recited for it is said that the Ordinance was made by both Houses of Parliament whereas it should be by the Lords and Commons in Parliament for the Houses are the places where they sit and can make no Ordinances and he cited Mich. 13 Car. Tydalls case 2. The Aldermen that are the Commissioners are not called by their Christian names as they ought to be but only by their Sirnames 3ly It is not shewed in what manner the Bills were assigned to him but he says only that they were assigned in due form of Law which is too generally expressed and to this he cited Mich. 10 Iac. Banc. Reg. Glass and Gowes case To these exceptions Latch answered That the mentioning of the Ordinance of Parl. and of the Aldermen is but by way of inducement to the Action and nothing to the ground of it and therefore there need not be so punctual a recital as is surmised neither is it necessary to shew how the Bills were assigned and they are the Defendants own words nor is it material how the money was to be paid Râ—â— chief Iustice The ground of the Action is the deceit in assigning over false Bills and affirming them to be true Inditement Confession and the other matters are meerly matters of inducement and used only by way of recital and not material to the Action And you have confessed the deceit for which the Action is brought by your general demurrer upon the Declaration And therefore let judgement be for the Plaintif except better matter be shewn Postea Wood against Holland Mich. 1652. Banc. sup Trin. 1652. rot 1061. VVOod brought an Action of Trespass and Ejectment against Holland Demurrer to a Replication in Trespass and Ejectment The Defendant pleads that the Plaintif did disseise I. S. of the Land and then made a lease of it to him and that afterwards the land did descend to the Plaintiff The Plaintiff replyes that he was seised of the lands and traversed the disseisin supposed to be made to I. S. And to this the Defendant demurs add for cause shews that he ought to have traversed the descent and not the disseisin But Roll chief Iustice said That the traversing of the disseisin makes an end of all and therefore it is well taken as being the most material matter Traverse Se sin Descent although that the descent might have well enough been traversed And therefore let the Plaintif have Iudgement nisi Reckwitch and Moyle Mich. 1652. Banc. sup Trin. 1650. rot 503. A Writ of Error was brought to reverse a judgement given in an Inferiour Court A Writ of Error to reverse a judgement given in an inf riour Court and the Writ of Error was to remove a Record quod coram vobis residet de placito in Curia manerii de Cuttingbye whereas the Record was de placito in Curia Custodum libertatis Anglae authoritate Parliamenti de Cuttingbye And therefore against the writ of Error it was objected that there was a variance between the writ of Error and the Record and therefore that the writ of Error was not good But against this was cited Lodge and Goodales Case in this Court 23 Car. that it is not necessary to recite in a writ of Error all the words 〈◊〉 the description of a Court and here the writ is not to remove a Record out of an inferiour Court but the writ of Error is to reverse a judgement in a Record quod coram vobis residet Hales answered That here is a right description of the Court in regard of the place where it was held and of the Iudge of it but not in regard of the Lord of it and therefore he conceived it a material objection because a part of the stile of the Court is mistaken not only an additional description of it Roll chief Iustice answered Variance If it be but an additional addition or description it is well enough as it is but we will see what hath been done in like Cases heretofore but me thinks that it shall be intended here to be Curia Custod libertatis Angl. c. for here it is in a Writ of Error which will not lie if it be not a Court of Record But Nicholas and Ask Iustices said It cannot be intended a Court of Record but a Court Baron
of recital and not material and you have confessed the deceit by your demurrer and therefore let the Plaintiff have his Iudgement nisi Vpon which rule Baâ—ington at another day moved the matter again and urged that here was an assignment of papers mentioned which could not be for that it is a thing in Action which is not assignable nor can the Ordinance of Parliament give authority to assign a thing in Action Roll chief iustice Assignment The ordinance of Parliament doth give authority to assign the papers Latch the paper may be assigned Green The Action is brought for the deceit grounded upon the ordinance and it is not necessary for the Ordinance to name the Aldermens Christian names and these may be true bills though not subscribed which is the deceit here alleged Twisden on the other side said that the acquâ—ittance is in nature of a bill according to the intent of the Ordinance for it is not only an acquittance of discharge but to recover monies upon them and so the Defendant calls them and by the assignment the paper is assigned and the Action is grounded on the deceit and not upon the Statute Iudgement was given for the Plaintiff Burcher and Orchard Mich. 1652. Banc. sup BUrcher brought an Action upon the Case for words Arrest of judgement in an Action on the case for words against Orchard and his wife the Iury find that the Baron was guilty but that the Feme was not guilty Wadham Windham moved in arrest of Iudgement because that the Action is joynt and one of them is found not guilty and said it might have been otherwise if the Feme had been found gvilty and the Baron not guilty and cited 9 Ed. 4. f. 51. Yard on the other side said that the verdict hath made this exception good and if the Defendant would have taken any advantage of it he should have demurred to the Declaration Roll chief Iustice denyed the difference taken by Windham and said if any of the Defendants spake the words and be found guilty the Action will well lye and it is all one here as if the Defendants were two strangers the Action being joynt but the doubt is whether it being after a verdict this matter may be offered in arrest of Iudgement At another day Hales moved for Iudgement and said it was all one if any of the Defendants be found guilty as if both of them were found so and although it do appear by the Declaration that the Action could not be brought joyntly against them both because the wrongs are several and now one is found guilty and the other is acquitted 8 Ed. 4. f. 21. 11 H. 4. f. 5. 9 E. 4. f. 1. and damages are assessed against one only And now the verdict hath madei the Declaration good otherwise it had béen if both had been found guilty and entire damages given against both joyntly Latch on the other side said that the speaking of the words cannot be a joynt Act and therefore ought not to be so laid in one Declaration for they are severall Acts and severall offences as the words do proceed from them severally and this case is not like the case of a decies tantum nor the case of a joynt endictment against two for a joynt endictment shall be accompted as severall endictments and here if the Feme had been found culpable perchance it might have béen good because though the wise only speak actionable words yet the Action ought to be brought against the Husband and the Wife Roll chief Iustice The Declaration is not well laid for this cannot be a joynt speaking of the words by the Husband and Wife and therefore they ought not to be joyned in the Action therefore there ought to be several judgements and damages if you recover viz. One against the Husband another against the wife but here is a verdict found which helps it and this case is all one with the Case of 9 Ed. 4. for there the Declaration was not good as it is not here and here is not a verdict against both but only a discharge and he cited Rethorick and Chappels case where an Ejectment terrae haered is did not lie yet there by releasing of damages to the heir judgement was given for the land and here might have been a release of damages as to the wife if both had been found guilty but here in effect is a judgement but against one of the Defendants Ierman Nicholas and Ask Iustices to the same effect and so judgement was given for the Plaintif Luddington and White Mich. 1652. Banc. sup Mich. 1651. rot 458. LUddington brought an Action of debt upon a bill against White Demurâ—er to a plea in debt up on a Bill the Defendant pleaded that after the money became due he and the Plaintif did by parol submit to an award and that there was an award made that the Defendant should pay 8 l. to the Plaintif at such a house and thereupon the Plaintif should give him a general release and accordly he tendred the money to this plea the Plaintif demurred and for cause shewed that here is a submission by paroll pleaded after the day of payment expressed in the Bill which is not good being by paroll to discharge a debt due by specialty Discharge But Wild answered here were other things submitted besides this and that may make the submission good Roll chief Iustice I see not what authority you have for this Reference nor how it can be and 4 H. 6. if one be awarded before auditors to accompt this cannot be referred and here would be an inconvenience to take away a duty created by bond by paroll therefore let the Plaintif have his Iudgement Neve and Cross Mich. 1652. Banc. sup NEve brought an Action upon the case against Cross for charging him with felony Arrest of Judgement in an â—ction upon the Câ—seâ— in nature of a Conspiracy and causing a Constable to carry him before a Iustice of Peace and accusing him to the Iustice in these words viz. He did come to my door and set a Pistol to my Brest and demanded money of me and I for safegard of my life did give him what money he desired Vpon not guilty pleaded and a Verdict for the Plaintif it was moved by Fletcher of Lincolns Inn that the words were not actionable and therefore that the Plaintif ought not to have judgment and that for these reasons 1. Because there is but a matter of Trespass alleged in the words 2ly They are but argumentative and do not charge the Plaintif directly with felony and it may be the money demanded was due to the Defendant and the Iury have found all that which sounds to charge the party with felony against the Plaintif Twisden on the other side said that the words ought to be taken together and so they are actionable and ought not to be severed And the ground of the Action is for charging
find my goods Action on the Case for goods found and refuse to deliver them to me an Action upon the case lies against him although he convert them not to his own use Bond and Martin Mich. 1652. Banc. sup BOnd brought an Action of Debt upon a Bond given unto him as Sherif to save him harmless The Defendant pleaded a special plea Special plea to an Action of debt upon a Sherifs Bond. which amounted unto no more than that he had saved him harmless to this Plea exception was taken because he did not shew how he had saved him harmlesse To this Wadham Windham answered If it be that he hath from time to time saved him harmless it is well enough Roll chief Iustice It is not so here and therefore let the Plaintif have judgement nisi Mich. 1652. Banc. sup IT was said by Roll chief Iustice Where an express averment ought to be Averment that in an Action of Trespass quare vi et armis c. There ought to be an express averment in the Declaration of the force and it ought not to be expressed with a whereas there was such a force Baynton and Cheek Mich 1652. Banc. sup Trin. 1651. rot 574. BAynton brought an Action of Accompt against Cheek as his receiver Plea to an Action of Accompt The Case in sum was this Baynton deposited two hundred pounds laid upon a horse-race in the hands of Cheek to be delivered to the party that should win according to Articles made betwixt the parties Baynton supposing he had won the money demands it of Cheek who had delivered over the money to another whom he supposed had won the wager and the money being not delivered to Baynton Baynton brings this Action against Cheek Cheek the Defendant as to one hundred pounds pleads Ne unques receptor Plea upon which plea he was adjudged to accompt before Auditors and before the Auditors he pleads in discharge of the accompt that he had delivered over the money to another that won the wager The Plaintif replyed That there was foul play used by the other party in striking one of the horses that ran the race upon the Nose which was foul play and against the Articles made betwixt them and so he ought not to have delivered the money The question was whether this was a good plea in discharge of the Accompt before the Auditors Roll chief Iustice said The plea was not good in regard that the Defendant was adjudged to accompt which doth imply that the money was fairly won by the Plaintif Latch on the other side urged that the replication was not good but is impertinent and therefore that the Plaintif can have no Iudgement though the plea in Bar be not good but that there ought to be a Repleader At another day Green moved for judgement for the Plaintif and cited Hob. 112. Taâ—kers case That an issue joyned upon impertinent matter is not helped by the Statute and Kent and Halls case in Hob. Rep. but here is only an informal issue which is helped by the Verdict as are Rawden Tuts case and Napper and Dawkes case in Hob. Reports and Mich. 2 Car. Giggon and Purchases case and said that at the Common Law a Tryal upon a double issue was good Broke Issue 30. 2ly This plea of the Defendant ought to have been pleaded in bar of the Action and not in discharge before the Auditors 1 Ed. 5. 2. Brook Accompt 83. and Dyer 196. Hungerford case Latch on the other side said that the Replication is imperfect and that the Verdict helps it not the Defendant alleges the Articles made upon the wager and the replication is about striking of the Horse and answers not the matter pleaded in Bar for the Act of the Rider viz. the striking of the horse is not the Act of Bish who made the Articles and besides here is no breach of Articles for they doe not prohibite to strike the Horse or to ride foul according to the Laws of a Horse-race and the Rider doth not appear to be Bish his Servant but a third person and an Action of the Case lies against him and not against Bish who for ought appears hath done nothing against the Articles and the matter in bar of the Accompt is well pleaded and could not be otherwise as the Case is and it is well enough though it be not pleaded in bar of the Action for he could not have pleaded ne unques receptor pur accompt render 9 E. 4 1â— Dyer 19 H. 6. 5. As he could not have pleaded the general issue and given the special matter in evidence And he cannot plead thus in bar of the Action of Accompt and there is not one book that says otherwise 41 E. 3. 31. 5 H. 5. 5. 19 H. 6. 5. 22 H. 6. 49. 21 E. 4. 67. 5 H. 5. 1. 5 E. 4. 41. 1 E. 5. 2. 27 H. 7. 35. Which books do shew it may be as well pleaded before the Auditors as before in bar of the Action 14 E. 3. Fitz. Accompt 68. 21 E. 4. 54 By these books he is compelled to plead these matters before Auditors and the other books are not expresly against it And in this case here is not a bailment purely to deliver over but there is subsequent matter which directs how it shall be delivered over and this matter he must plead But admitting the Bar to be ill if the replication be impertinent and that he hath confessed that he hath no cause of Action then it is with us and here is no pertinent matter pleaded to avoid the matter confessed and so the Iudgement ought to be against the Plaintif 3 Report Ridgeways Case is That if impertinent matter be in a replication which answers not the bar Iudgement ought to be given against the Plaintif and the matter confessed is not in bar of the Action of accompt as is objected 1 H. 7. 2. 21 H. 6. 26. Hales The matter of delivery makes not the matter The subsequent matter is grounded upon the Condition made upon the delivery Dyer 169. and here is an insufficient bar and the matter of the replication is good according to the matter alleged in the bar for the Articles ought to be interpreted according to the intention of the parties which was that the race should be fairly won which is not so here 18 E. 4. 4. matter of Covenant by deed may be discharged by subsequent matter of fact and the Riders here shall not be accompted meer strangers for they are Instruments made by the parties and there is confidence put in them to perform the act of riding and their acts shall be the acts of the parties And here is nothing shewed in the replication which destroys the Action Roll chief Iustice If you have confessed the Articles and alleged impertinent matter in the replication how can you take advantage of an iâ—â— bar and how can you interpret the intent of the Articles otherwise than is
be undestood eight hangings Roll chief Iustice A pair is properly when one of the things so called cannot be properly used without the other but yet the words may be also understood so many couple and here you cannot intend the words to mean so many suits of hangings and you might have expressed your meaning by so many pieces of hangings and therefore it seems doubtfull Ierman Iustice Here the words do not expresse the number of the things as they do when you say a pair of Oxen or the like Nicholas as Ierman Ask Iustice A pair is incertain for that word may be meant more than two in number as when you say a pair of cards and a pair of hangings in some places is meant a suit of hangings Roll chief Iustice If it be so then it is more incertain the word hangings may be good enough but how can the number be known Curia advisare vult Afterwards the Court moved the Defendant to suffer the Plaintiff to amend his Declaration and to plead anew and to consent to a new tryall Askwiths Case Hill 1652. Banc. sup THe Court was moved to quash an order of Sessions made at Durham against Askwith Motion to quash an order of Sessions for not serving the office of a Constable or finding an other able person to serve the place for him being elected according to the custom of the place where he was elected to serve The Exception taken was that it is not shewed that he was elected at a Court Leet and the Sessions have no power to elect a Constable Roll chief Iustice He is a Constable elected by a by-Law By Law it is not necessary there should be any other election then according to the custom and he must serve in his turn or contribute to the charge for another to serve for him Custom and this is a good custom used in many places and I do find one my self in my turn in one place and make no use of my privilege to avoid it Another exception was taken that the complaint made of the party was that he would neither serve the office nor contribute for another to serve it and the order is only that he refused to contribute and so is not warranted by the custom by which he hath an election to serve or contribute Quashed nisi c. Hill 1652. Banc. sup A Prisoner was brought into Court by a habeas corpus out of the Fleet to the intent to turn him over to the Marshalsea to charge him with an Action here Creditor examined upon oath it his debt were reall whereupon the creditor was examined upon his oath whether the debt was real for which he surmised he would bring his Action and upon making oath thereof the Prisoner was turned over accordingly Nota. Smith against Holyman Hill 1652. Banc. sup IT was moved in arrest of Iudgement in an Action upon the case upon an Assumpsit Arrest of Iudgement in Assumpsit False English and Exceptions taken 1. That the Defendants Christian name was mistaken And 2ly That the jurata was erroneous for it says in a plea of dept instead of a plea of debt and the Iudgement was arrested for dept written with a P. is no word though it sound like debt written with a B. Custodes and Howell Gwin Hill 1652. Banc. sup HOwell Gwin was brought to the Bar being convicted for forgeing of a deed Iudgement against one convicted of forgery and was demanded what he could say why Iudgement should not be given against him Boynton of Councel with the Prisoner moved the Court that in regard there was an information of perjury depending here against the witnesses upon whose Testimony the Prisoner was convicted of the perjury and that the Prisoner doth endeavour to proceed with all the speed that is possible against them in this information that the Iudgement may be stayed in the mean time against him Roll chief Iustice answered if they be found guilty of the perjury they shall be punished but we will give Iudgement against your Clyent in the mean time which was done accordingly in these words following Iudgement for forgery viz. you are convicted of forgeing a deed by putting a dead mans hand unto it therefore the Court gives this Iudgement against you that you are fined at a hundred pound and shall stand on the pillory two hours before the Hall dore with a paper on your head shewing the nature of your offence Memorandum the party cut off a dead mans hand and put a pen and a seal in it and so signed and sealed and delivered the deed with the dead hand and swore that he saw the deed sealed and delivered Mich. 1652 Banc. sup MRs. Lucy Fotherby was brought into Court to be turned over into the Marshalsea out of the Fleet with an intent to charge her with an Action of debt Against this it was urged that she was a Prisoner in the Fleet A Prisoner turned over committed thither by an order of the Court of Chancery Prisoner But Roll chief Iustice answered this order is nothing to hinder her turning over if the debt be reall and so upon proof that the debt was reall she was turned over Locky and Dumiloe Hill 1652. Banc. sup Hill 1650. rot 1462. VPon a special verdict in an ejectione firmae the case fell out to be this Special verdict in an ejectione firmae I. S. seised of lands in Fée makes a lease of it to I. D. at Will A. B. puts the Tenant at Will out of possession and after the Tenant at Will enters and takes a lease at Will of him that put him out of possession the question was whether he should hold the land by virtue of his first lease or by virtue of his second agreement To this Roll chief Iustice said if one make a lease at Will to one and he be ousted Will. Determination and then enter again and take a new estate the Will is determined but a stranger cannot determine his Estate without his consent but here he hath determined his first Estate by his new contract with the disseisor of his Lessor And he said if Livery and Seisin be made upon one Acre of land in the name of two Acres it is good for both the Acres for it is not necessary that the party that gives the livery should go to all the land mentioned in the deed of Feoffment Livery and Seisin And he also said that if Tenant at Will cuts down a tree upon the land which he holds at Will by this Act he hath determined his Will Drake and Drake Hill 1652. Banc. sup DRake brought an Action against Drake for these words Arrest of Iudgement in an Action for words viz. Thou hast preached lyes in the Pulpit the Plaintiff being a master of Arts and incumbent of a living Wadham VVindham held the words actionable because they were spoken of the Plaintiff in relation to his
departure from the plea and here it doth not appear that Iohn Pitcher named in the replication is the same Iohn Pitcher that is named in the Declaration for it is said quidem Iohannes Pitcher and not the said I. Pitcher Latch said This is not material whether he be the same or no but upon the entire matter it doth appear that he is the same person for there is an averment afterwards that makes it so appear viz. That it is the same person and goods mentioned in the plea and in the condition made upon delivery of the goods and it cannot be otherwise understood and their bar is naught both in matter and in form also for he is to be saved harmless of goods Hale on the other side makes a difference between saying one I. P. and saying I. P. and saying of divers goods and saying of goods generally and the goods mentioned here cannot relate to the goods mentioned in the condition and though the plea be not good it matters not for the replication assigns not a breach Roll chief Iustice If your plea be not good then the Declaration is not answered Traverse Intendment Bar Replication It may be intended the same person yet it is not well expressed to say quidam I. P. for how can a traverse be taken upon an intendment nor doth it appear they are the same goods but by intendment so that the bar is ill and the replication also Affirmetur nisi c. Nota. and Hodges Trin. 1653. Banc. sup A Writ of Error was brought to reverse a judgement given in the Town of Newbery in an Action upon the Statute of 5 Eliz. brought by an Informer for using a Trade not having served an Apprentiship therein Error to reverse a judgement given in an Action upon the Stature of 5 Eliz. and two Errors were assigned 1. That the Action ought not to be brought in an inferiour Court but must be brought in one of the Courts at Westminster 2ly The Venire is not good for it is only praeceptum est and doth not say per curiam as it ought to be Roll chief Iustice The Action ought not to be brought there but it ought to be brought in some of the Courts here and the second is a good exception also therefore reversetur nisi c. Action Venire Tayler and VVebb Trin. 1653. Banc. sup IT was resolved by the Court that the delivering of a breviat of the Case to the Iury before the verdict and their reading it What Act may make a Verdict void did make the verdict given by them to be void for the Iury ought not to have any other writings given them to peruse than such as are given in evidence for it would be dangerous if it should be otherwise and to confirm this Mich. 31 et 32 Eliz. Metcalfs and Deans case and one Viccary and Farthings case were cited by Roll chief Iustice Ashby and Child Trin. 1653. Banc. sup Mich. 1652. rot 686. VPon a Demurrer in an Action of debt the case was this A man died intestate and a Stranger possesseth himself of the Intestates goods after Letters of Administration were granted to a Creditor of the Intestate who brings an Action of debt against the stranger for the debt due to him by the Intestate as Executor of his own wrong The question was whether the Creditor by taking the Letters of Administration had not suspended his Action for the time he should continue to be Administrator Twisden held that his Action is suspended and cited 8 Rep. St. Iohns case because the goods of the Intestate shall be assets in his hands Hob and Longs case and the Plaintif is at no prejudice for he may recover the goods by an Action of Trover or Trespass 12 H. 4. f. 21. Hales on the other side held that the Action is not suspended for though he may bring Trespass or a Trover and Conversion for the goods yet they are not assets till they are recovered and a Creditor may bring an Action against an Executor de son tort although Letters of Administration be granted to another and the subsequent administration doth not suspend the Action which accrued before and here can be no retainer to satisfie himself because he hath not the goods and it is not the bare Letters of administration that chargeth the Administrator but the Assets also Com. 7. Bassets case An Action of debt is maintainable by an Administrator who hath not assets Roll chief Iustice There is a book against that that the heir is not chargeable Hales prima facie It is a good plea otherwise it would be mischievous for all the goods may be wasted before he hath administration granted him and though he may bring an action of Trespass for the goods yet he may bring his Action to which he was intitled before the administration granted unto him Trover and Conversion Roll chief Iustice It is clear the Administrator may bring a Trover and Conversion for the goods and here is but a right to assets in the Administrator Assets and no assets to charge him withall and it would be mischievous if it should be otherwise and the granting unto him Letters of Administration hinders him not from bringing his Action because the goods were not taken away after the Administration granted but before Trespass Debt and if they had been taken away afterwards he might have had a Trover and Coversion or an Action of Trespass but in the case at the Bar he may have an Action of debt and he cannot sue himself therefore his Action is not suspended Suspension Retainer and he cannot retain the goods to satisfie himself because he hath no goods and he may sue the heir here if he will and he shall not take advantage against him by reason of the administration because he hath no assets to retain or sue himself for and so it is in his election what Action he will bring Election otherwise it would be dangerous and we must support men in their just Actions Ierman Nicholas and Ask ad idem And so judgement was given for the Plaintif nisi Fisher and Ieoffryes Trin. 1653. Banc. sup FIsher brought an Action of debt against Ieoffryes as Executor to another What may not be pleaded after imparlance the Defendant imparis and after imparlance he pleads that he is Administrator cum testamento annexo and not Executor and that he ought to be named so in the writ to this Plea the Plaintif demurred Roll chief Iustice Vpon the matter he pleads a misnosmer after imparlance Plea which he cannot do and therefore let the Plaintif have his judgement nisi Giles and Southward Trin. 1653. Banc. sup IN this case it was said by Roll chief Iustice That if the Defendant doe plead an insufficient bar and the Plaintif do joyn issue upon it Iudgement though the plea in bar not good and obtain a Verdict the Plaintif shall
assigned in the Declaration was not well assigned for it recited another promise than upon which the Plaintif had declared for he declares of a promise made to give 300 l. in mariage to the Plaintif with his Sister E. and he assigns the breach in not paying the 300 l. unto the Plaintif so that the breach doth not answer the promise for if the money be paid to the wife which for ought appears may be the promise is not broken though she be maryed But Hale 〈◊〉 other side said that it is all one as it is alleged and that it is equâ—â—â—â— and reciprocal and here is a refusal to pay the money assigned for a breach and this is a good breach Roll chief Iustice I suppose it is all one as if he had expressed the very words of the promise for the Husband is to give the acquittance for the money Acquittance and the moneys are to be paid unto the Husband and the Verdict finds that they are not paid And if moneys be due to a Feme upon a Contract dum sola suit and after and before the payment thereof she marry the moneys are to be paid to the Husband and not the wife Payment and the moneys here are intended to be paid for a mariage portion which doth properly belong to the husband and they were not to be paid unto her before the mariage and it is all one in this Case as if the Plaintif had said that the Defendant had not paid the moneys to the Husband with his Wife in mariage Curia ad idem The Rule thereupon was that the Plaintif should take his judgement nisi Hicks and Joyce Mich. 1653. Banc. sup AN Action of the Case was brought for these words Arrest of judgement in an Action for words She meaning the Defendant is a whore and I will prove it and her plying place is in Cheapside and she gets 40 s. a night by playing the whore It was moved in Arrest of Iudgement that the words are not actionable because they are but words of choler and very general words and may receive divers constructions and at the first moving the judgement was stayed but the matter being moved again at another day Roll chief Iustice said that these words import more than the bare calling of a woman whore by reason of other particular circumstances set forth to aggravate the matter and therefore let the Plaintif take her Iudgement Townesend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. AN Action upon the Case was brought by a Churchwarden of a Parish Arrest of judgement in an action for words for these words spoken of him Thou dost make Lowns i. e. taxes or assessments thy self and makest 5 quarters in the year and dost cheat and cozen the Parish It was moved in Arrest of Iudgement that the words are not actionable because they are spoken of a Churchwarden which the Common Law takes not notice of And 2ly In that it doth not appear they were spoken of him in relation to his being a Churchwarden But it was answered That a Churchwarden is an Officer of Trust and taken notice of by the Common Law and so was it adiudged in Stroade and Homes his Case in this Court and the words must be intended to be spoken of him in the relation to his Office for that is implyed by his making of Lowns and his couzening the Parish The rule was for the Plaintif to have his judgement Mich. 1653. Banc. sup AN Endictment of one endicted for refusing to serve in the Office of a Headborough was quashed Endictment quashed Addition because it did not shew that he was chosen to the 〈◊〉 and because the party endicted wanted an addition Mich. 1653. Banc. sup THe Court was moved to discharge one Cullins that was arrested as he was attending the Court to give testimony as a Witness in a Cause To discharge one arrested attending th' Court as a Witness Supersedeas Attachment and for an attachment against the parties that did arrest him German Iustice absente Roll chief Iustice Take a Supersedeas and let the parties shew cause why an Attachment shall not be granted against them that arrested him Hanslop and Johnson Mich. 1953. Banc. sup THe Court was moved to change the venue in an Ejectione firmae laid in London because the Lands in Question did concern the Poor of London To change the Veâ—ue in an Ejectione firmae and therefore it was supposed there could not be an indifferent Tryal in London for by consequence in that it concerns the Poor it concerns the whole City But Roll chief Iustice answered the Action is local Action local Venue and it cannot be removed except you can draw it from thence by your Plea Boyle and Scarborough Mich. 1653. Banc. sup Hill 1652. rot 226. AN Action of Debt was brought by Boyle against Scarborough Error in reverse a judgement in Debt upon a Promise wherein the Plaintiff did declare that the Defendant in consideration that the Plaintiff would forbear to sue forth a ne exeat regnum against the Defendants Son who did owe unto the Plaintiff five hundred pound did assume and promise unto the Plaintiff a certain sum of mony expressed in the Declaration upon non assumpsit pleaded and a verdict and a judgement given for the Plaintiff the Defendant brought a Writ of Error and it was assigned for Error That there appears no consideration to ground the promise upon so no ground of Action for he doth not shew that he had done any thing in prosecuting the Writ of ne exeat regnum and Rolyer and Langdales Case 1650. in this Court was cited and Hob. 216. Bedwell and Cottons case and there is no such Writ in the Register as a ne exeat regnum and therefore there could be no forbearance to sue out such a Writ but there is a Writ to give security not to go out of the Realm to the publique prejudice of the King and his people and here is no such matter expressed but only that his Son owed him 500 l. Nat. Brev. 85. was agreed and it was farther objected by Wild who argued against the Iudgement that though the consideration should be good yet the replication is not good and sufficient to tye the second Writ to the first for it is not said that the second Writ is pro una eadem causa and so it is incertain Br. Trespass 85. 9 H. 6 and there may be several promises made in one day and if the replication is good yet the rejoynder is not good 19 H. 8.43 for he only admits that he being a Knight is the same person which was sued by the name of Esquire Hob. 171. Stukelyes Case And here is a judgement by a Nihil dicit and no warrant of Attorny for it is Latin and so it is nul it being since the late Act made for the proceedings in Law to be in English Latch
Corpus came into the Court and produced an Order of the Counsel of State that he should not bring Iohn Lilborn to the Bar upon a Habeas Corpus directed to him out of this Court. Norbury of Counsel with the Prisoner prayed for an Alias habeas Corpus to be directed to him Roll chief Iustice Take it for no matter of Record appears before us to hinder it and let it be returned Saturday next which was three days after Norton and Jason Mich. 1653. Banc. sup Trin. 1651. rot 935. IN an Action upon the Case for entring into the Plaintifs house Arrest of Judgement in an action on the Case and making an assault upon his Daughter and getting a Bastard Child upon her the Iury found a special verdict upon which the Case was this Norton sojourned in the house of Jason and during his sojourning there he got his Daughter with Child Four years after Iâ—son brought an action upon the Case against Norton for assaulting his Daughter and getting her with Child per quod servitium amisit The question here was whether because no Action was brought by the Daughter for the wrong done to her within four years and thereby she was barred by the Statute of limitations of Aâ—tions to bring her Action Iason the Father might now bring his Action upon the Case for the damage done to him by the loss of his Daughters service or should be also barred by the Statute Powis argued that he was not barred though the Daughter was because in many cases the Law gives two Actions for one thing and cited 19 H. 6.45 46. a. and Hill 1649. Norburies case adjudged in this Court and said that though the Trespas and the Assault was done to the Daughter yet here is a per quod servitium amisit declared of which doth belong to Iason the Father Roll chief Iustice This Action is an Action brought for the damage done to the Master and though the servant will release the battery yet the Master may have an A Aion for the damage caused to him by the Battery and although the Daughter cannot have an Action her Father may although not for entring into his house because it was with his leave nor for assaulting his Daughter and getting her with child because this is a wrong particularly done to her yet for the loss of her service caused by this he may have an Action but it is a pretty case and fit to be argued therefore bring us books and we will advise upon it At another day the case was again spoken unto by Baldwin of the Inner Temple on the Defendants part and he made the question to be whether this be an Action of Trespass vi et armis or an Action upon the Case which is here brought and he argued that it is a Trespasse vi et armis and not an Action upon the Case which is here brought Case and cited Nat. Brev. 86. 17 Ed. 3. and 12 H. 4. and the 9 Rep. the Earl of Shrewsbury case and said that the matter here alleged is not Causa causans but Causa causata and he agreed that one may be lyable to divers Actions for one Trespass in divers respects but here all the matter is jumbled together and it cannot be an Action upon the Case for the judgement ought to be quod defendens capiatur which is the Iudgement in a Trespass vi et armis and not in a Trespass upon the Case Hob. Rep. Wheatly and Stones Case And although the Action conclude with a per quod servitium amisit yet it sounds more in Trespass than to be an Action upon the case and then he is barred by the Statute of limitations for not bringing it within 4 years and here are â—ntire damages also given for all which ought not to be for the Defendant was a sojourner in the Plaintifs house and had licence to enter into it by consequence is is not guilty of the vi et armis declared of Hob. Andrews and de la hope 22 Eliz. Dyer 369. 20 Iac. Rhetorick and Chapels Case and therefore no dammages ought to have been given for the domum fregit because he entred with License Roll chief Iustice It may be the entire dammages are given by the Iury for the trespasse of which they make doubt and refer to the judgement of the Court and not for the entring with License but if the entire special matter had been found and left to the Court it had been otherwise But if they had not made a doubt they might have found him culpable Dammages and so I doubt that it is not good to find the dammages entire because as to the Trespass for entring vi armis he is not guilty But for the other point the cause of action is per quod servitium amisit and for this he hath brought it within the time limited by the Statute for it is an Action upon the Case although the causa causans is the vi armis which is but inducement to the Action and the causa causats viz. the loss of the service is the ground of the Action Hales è contra said that the dammages shall be applyed to the other matter Roll chief Iustice this is the sole Question whether the dammages refer to all the Trespass or not and upon reading the Record he said that it referred to all Venire Tryal and so is not good The rule was to shew cause why a new Venire should not issue forth to try the matter de novo Mich. 1653. Banc. sup THe Court was moved to quash an order of Sessions made for the committing of one Wade and another Surveyours of the High-way To quash an order of Sessions untill they should pay the arrerages of mony collected by them upon the Statute of 2 3. Phil. Mar. C. 8. for amending of High-waies and it was prayed the Prisoners might be bayled These exceptions were taken by Twilden against the Order first to the Mittimus in that the parties were not convicted before the Iustices as they ought to have been 2ly The Mittimus is repugnant in it self for they are committed for not paying of illegal rates levied upon the Parishioners and if they be illegal they are not to be paid Next they are committed for not paying all the mony by them levied whereas they are to deduct 8 d. in the pound out of it for their pains in collecting of it and so they are committed for more than is due Roll chief Iustice The order is not good yet let them on the other side take time to maintain it if they can because it is an order for repairing of the High-way Order of Sessions which is for the good of the Common wealth Henshoe Mich. 1653. Banc. sup A Writ of Error was brought to reverse a judgement in an Ejectione firmae it was moved for the Defendant in the Writ of Error Error to reverse a judgement in
the rule and he was ordered to pay the Iury. Nota. VValkenden and Haycock Mich. 1654. Banc. sup VPon a Verdict given for the Plaintif in an Action upon the case for these words spoken of a Millener in London Action upon the case for words viz. Thou art in a breaking and decayed condition and I will prove it and if you question me I will prove it to your disgrace Twisden moved for judgement for the Plaintif because he held the words are actionable for by the speaking of them the Plaintif is disgraced in his profession for in common understanding the words amount to as much as if he had said that the party is a Bankrupt and it is so averred in the Record and found by the Iury and he cited Mich. 1651 Tayler and Keisers case and Smith and Rookes case 24 Car. Wild on the other side said that the words are not actionable Adjective words for they are adjective words and of an incertain signification for the words may as well mean that he is broke or burst in his body as that he is a Bankrupt or broken in his estate and there is no averment that the words were spoken in the hearing of tradesmen and though they were yet they may not tend to his disgrace for a Tradesman may be in a decaying condition in respect of what he hath formerly been and yet have stock enough left to trade withall The Court then enclined that the words were actionable but for that time gave no judgement Iudgement but the case being moved again the same Term judgement was given for the Plaintif Lawrence and Harrison Mich. 1654. Banc. sup AN Action upon the Case was brought by Lawrence against Harison his Attorny for delivering a Fieri facias against him Action upon the Case for breach of trust in the sute wherein he was Attorney for him to the Vnder-Sheriff and procuring it to be executed against him contrary to the trust reposed in him Vpon not-guilty pleaded and a verdict sound for the Plaintiff It was moved in arrest of judgement for the Defendant by Windham That there appears not in the Record to be any combination between the Defendant and the Plaintiffs adversary against his Clyent and so no breach of trust appears to ground the Action upon 2ly Here being a judgement in the Case the sute in which he was entertained to be Attorny is ended and consequently the trust reposed in him is determined and so no breach of it for he is now discharged from being Attorney and the Plaintiffs averring the contrary doth not alter the Law and besides this delivery of the Fieri facias is in pursuance of Iustice which since that the sute is ended cannot be called a breach of trust Roll chief Iustice But you did not only deliver the Writ against your Clyent to the Vnder-Sheriff but did also procure it to be executed against him which shews there was a combination against him The only question is Whether a Warrant of Attorney determined whether the Warrant of Attorney be determined by the judgement given in the sute wherein he was retained and I conceive it is not for the sute is not determined for the Attorney after the judgement is to be called to say why there should not execution be made out against his Clyent and he is trusted to defend his Clyent as far as he can from the execution Therefore let the Plaintiff have his judgement Judgement nisi c. Roungs and Woodyard Mich. 1654. Banc. sup ROungs a Farmer in the Country brought an Action upon the Case against Woodyard for speaking these words of him Action of the Case for words against a Farmer You are a Beggar and a Banckruptly Fellow and if every one had his own you are not worth a Groat Sergeant Fletcher moved in arrest of judgement that the words are not absolute and positive words but are spoken adjectively and also they are not spoken of a Merchant or of one that gets his living by buying and selling and so are not scandalous for a Farmer cannot be a Bankrupt and here is no dammage to the party by the speaking of them Roll chief Iustice Particular dammage Though it appear not that the Plaintiff is a Tradesman yet here appears to be a particular dammage to him by the speaking of the words viz. that by reason of the speaking of them he was discredited with his Landlord and his Landlord had given him warning to be gone out of his Farm and it matters not though the words generally considered are not actionable Therefore shew cause Saturday next why the Plaintiff shall not have his judgement Iones and Graves Mich. 1654. Barc sup AN Action upon the Case was brought by Iones against Graves for entring upon the possession of a Term Action upon the Case for entring upon the possession of a Term. after he had recovered it by a verdict given for him Vpon not-guilty pleaded and a verdict for the Plaintiff it was moved in arrest of judgement that the Plaintiff hath not shewed that there was any Term continuing in him at the time of the Defendants entry into the Land for though the Term might have a continuance at the time of the recovery yet it may be ended at the time of the Plaintiffs entry into the Land 2ly It is not expressed when the entry was and so it appears not whether it was before or after the recovery so that it cannot be known whether the Plaintiff hath cause of Action or not Latch also doubted whether this kind of Action ought to be in this Case or not and whether he ought not to have brought an Action of Trespasse and not an Action upon the Case Roll chief Iustice Election of Action He may bring an Action upon the Case or an Action of Trespasse at his own election Wild on the other side held that the Declaration was good enough for by it there appears to be good cause of Action for the time of the entry is expressed viz. that it was after the recovery 2ly The entry is found to be vi armis which implies an unlawfull entry and so the Iury have found it to be Implication The disturbing a possession actionable viz. that he is put out of his possession recovered Roll chief Iustice Though the Plaintiff had no title yet he had a possession and it is actionable for the Defendant to disturb him Therefore let the Plaintiff have his Iudgement nisi c. Mathew and the Hundred of Godalming in Surrey Mich. 1654. Banc. sup IF a Carriers man or Son conspire to rob him and accordingly do it Action upon the Statute of Winchester against a Hundred Mitigation of dammages the Carrier not being privy to it The Carrier may bring an Action against the Hundred upon the Statute of Winchester for this robbery but this conspiracy may be urged in mittigation of dammages Per Roll chief Iustice In a
Tryal at the Bar between one Mathew and the Hundred of Godalming in Surrey Hacker and Newborn a Sussex Cause Mich. 1654. Banc. sup IF a Man make his Will in his Sickness What shall be a Will by compulsion by the over-importuning of his Wife to the end he may be quiet this shall be said to be a Will made by constraint and shall not be a good Will By Roll chief Iustice In a Tryal at the Bar in the Case of one Hacker and Newborn Mich. 1654. Bronge and More Mich. 1654. Banc. sup MAster Sollicitor general moved in arrest of judgement in a replevin Arrest of judgement in a Replevin and took these exceptions-to the avowry 1. That the party did avow the taking of the Cattel dammage-feasant in a Common where he had Common and doth not shew that he hath Common for his Cattel levant and couchant 2ly He doth not shew that he was dampnified by the Cattel that were distreyned dammage-feasant and it may be there was common enough for him notwithstanding the other Cattel distreyned were there What distress lawfull without averment of dammages and so he was not dampnified by their being there Roll chief Iustice answered if one who hath no right to Common do put his Cattel upon the Common he who is a Commoner may take the Cattel dammage-feasant upon the Common and it is not necessary for him to aver that he hath dammage by them for he hath an interest which doth authorise him to remove the nusance Interest but he must make a Title to the Common and if he have made it here but by implication it is well enough for it is now helped by the verdict Title by implication and you have passed over your advantage by not demurring to him Mich. 1654. Banc. sup BY Roll chief Iustice A Deed good in part and fraudulent in part A Deed may be fraudulent in part and good in part and so he said it had been adjudged in the Case of one Lydal of the Middle-Temple Banks and Pratt Trin. 1654. Banc. sup Hill 1653. rot 603. PRatt brought an Action upon the Case against Banks upon an Aumpsit Error in an action of the Case by an Attorney so fees and solliciting to pay him such fees as should be due unto him as his Attorney in prosecuting a sute for him in the Common-pleas and such monies as he should lay out in solliciting a sute for him in the Chancery and upon non-assumpsit pleaded a Verdict was given for the Plaintiff and a judgement thereupon The Defendant brought a Writ of error in this Court and assigns for error that the Plaintiff did not shew particularly what sums of mony he had laid out for him nor to whom he had paid it as he ought to do and Tooke and Sir Thomas Walsinghams case in this Court was cited to prove it 2ly The Assumpsit was that he should pay him his fees so long as he should continue to be his Attorny it appears not that he continued to be his Attorny in the sute wherein he supposeth he prosecuted for him But for the first exception Roll chief Iustice said A general Declaration good that it is not necessary to set down particularly the several sums of mony he had laid out for this might make the Declaration tedious and if the Plaintiff should as it is objected he may bring another Action for some part of the monies recovered in this sute you may plead this recovery generally in bar of such Action And as to the 2d exception it shall be intended that he did continue to be his Attorney if it appears as it doth Intention that he prosecuted for him The case was moved again the next Term and the former exceptions only insisted upon Iudgement affirmed But Roll chief Iustice over-ruled the exceptions and affirmed the Iudgement Antea Mich. 1654. Banc. sup THe Court was moved To change the Bayl. that two that were bayl for one in an Action might be discharged and two others accepted of because the party was to examine them as Witnesses in the Cause which was granted upon consent of the parties VVise and Jeffryes Hill 1654. Banc. sup Mich. 1654. rot Q. VVIse a Corn-Merchant and a Baker in London brought an Action up-upon the Case against Ieffryes for speaking these words of him Action for words brought by a Corn-Merchant Adjective words viz. Thou art a broken fellow and hast cheated me of 200 l. Vpon a verdict for the Plaintif it was moved in arrest of judgement that the words are not actionable because the words are adjectively spoken and are not positive words nor of a certain signification for they may be meant that he was broken in his body and not in his estate But VVild answered that 1. The words are spoken of a Tradesman which may be a Bankrupt and 2ly Here is an averment that the words were meant to signifie that the Plaintif was a Bankrupt and besides here is a verdict for the Plaintif Green replyed that it doth not appear that the words were spoken of him in relation to his Trade or Profession and to say that thou hast cheated me were adjudged not actionable in Hills case 2 Car. and in one Iohnsons case Roll chief Iustice I do not agree the Case of 2 Car. cited but to the Case in question take all the words together as they are laid they imply he is broken in his Trade and the word cheated enforceth this sense and the words are very scandalous and the averment Iudgement and the verdict makes it more strong Therefore judicium pro querente nisi c. Fowkes and Copsye Hill 1654. IT was said in this Case that if there be divers breaches of an Award One breach of an Award assignable you may assign but one of them in an Action brought for breach of the Award Michill and Hepworth Hill 1654. Banc. sup Trin. 1654. rot 717. A Writ of Error was brought to reverse a judgement given in the Common-pleas in an Action of Trespass for an Assault Error in Iudgement in Trespass and taking away of the Plaintifs Goods and amongst other for taking away of Writings and two Errors were assigned 1. That the Declaration was with a quod cum A quod cum not good in in Trespass Otherwise in Trespass on the case which was said is not good in an Action of Trespass 2. That the Plaintif did not set forth what the writings were which were taken away but the first exception was only relyed upon and to that Roll chief Iustice answered That if the Action were an Action of Trespass upon the case though it were with a vi et armis it might be good with a quod cum but the Action here is a meer Action of Trespass vi et armis Therefore shew cause why the Iudgement shall not be reversed Kirk and Lucas Hill 1654. Banc. sup Hill 1653. rot 579.
Officer or that Sir Edward Bayâ—ton knew him to be so and so here is an ill inducement and Sir Miles Fleetwoods case is that he ought to know that he was an Officer and there the words were positive and certain but so they are not here nor do relate to his Office and the words are to be construed as they lye together and so some of them are of a very ambiguous construction and uncertain and others of them are insensible and an averment cannot make senseless words to be sense And in the case of Curle and Tuck 20 Iac. no judgement was ever given and yet that was stronger than our case It was also urged by Powis on the same side that it appears not that the mony spoken of did belong to the State or was to be compounded for for it may be he received the monies before he was a Delinquent and then he was not to compound for them Hob. 3.23 Bradshaw and Walkers case cited Sergeant Twisden for the Plaintif held the words to be actionable and cited 8 Car. Culme and Denhams case where it was adjudged that to say a man was a cosening Knave are actionable words and 16 Iac. Sir VVilliam Brunkers case and Hill 1651 Strode and Homes case in this Court and Trin. 1653. Townesend and Barkers case and in this Case is an instancing wherein the Plaintif hath cosened which makes it more plain and it is also aggravated by saying he had cosened the State for he hath thereby incensed the State against the Plaintif and the words in themselves are scandalous and prejudicial also for if he hath not compounded he is no Officer but hath lost his Office being lyable to be sequestred and the words here shall be taken in sensu composito and not in sensu diviso Sensus compositus et sensus divisus for they are positive words 8 Car. Redwood Smiths case and the last words are only spoken to instance the Cause of speaking of the former and it is not material whether they be actionable or not but the meaning of the word foisting is not so doubtfull but is very well known and shall be intended that he had falsely put in words into the order and so they are scandalous as well as the former 5 Car. Alleyns Case And there is no necessity here to aver the life of VVhitwick as is objected on the other side for the Office was for the life of Henly and VVhitwick and the surviver of them and if the averment were necessary in some Cases yet here it is not because Whitwick is an Officer upon Record in this Court where the Action is brought and seen to be alive here in Court and besides the Statute of 21 Iac. would help this if need required it being after a verdict and not upon a demurrer and besides here is an averment that he hath not foisted words into this order in effect for he hath averred that he hath not foisted words into any order and so consequently not into this 2 R. 3. f. 7. 12 H. 7. f. 23. And the Act of oblivion hath not pardoned this offence as is also objected and though it should yet it must be pleaded that the party may appear not to be excepted on t of it as many are and the Iury have here found for the Plaintif and so it shall be intended that he is out of the Act and he ought to have averred it before or have given it in evidence and so he prayed judgement for the Plaintif Roll chief Iustice you mistake the exception for they say that Mr. Henly is pardoned by the Act and so cannot be damnified by the words if they were true and so they are not actionable Twisden By their pleading it appears not that Mr. Henly is within the pardon for there are many persons excepted out of it Roll chief Iustice But if it be so yet if the words do not relate to him as an Officer they are not actionable Wild The words are spoken intentionally in relation to his Office Roll chief Iustice He was not an Officer at the time of the words spoken for he was sequestred and then what scandal can they be to him Wild The Iury hath found that he was damnified though the words were true The first question here is whether the words as they are laid relate to his Office for he is not an Officer nor can the Action be brought by him as he is so but this is not much to the purpose but the deceit alleged to be done to the State charged upon him is the cause of the Action and it is said that he deceived the State in his composition for his fine and for foisting words into the order and if he foisted not any words into any order then he did it not into this Averment And there is no need to aver Whitwicks life for he could not receive the profits of the Office if Whitwick were dead and therefore he shall be intended to he alive and there doth dammage arise to the Plaintif by the speaking of the words for he is in danger thereby of sequestration by such foisting of the words and in the common understanding of the words they shall be taken to be meant of falsifying of the Committees order and one man ought not to slander another and say that you had not notice of the Ordinance touching which he is slandered it is not to the purpose for you ought to take notice of the Ordinance Newdigate Iustice to the same effect that the words are actionable for as they are laid Henly is brought therby within the compass of Sequestration and the words in themselves are actionable because they instance in what thing he cosened the State and the subsequent words do not qualifie the former but aggravate the matter Iudgement for the Plaintiff and I conceive it not necessary to aver Whitwicks life but if it be it is averred here and so judgement was given for the Plaintif nisi c. North and Iames. Hill 1654. Banc. sup Trin. 1651. rot 1666. A Writ of error was brought to reverse a judgement given in an Action of Trespass in the Common-pleas upon a demurrer Error to reverse a judgement in Trespass Discontinuances the error assigned was that there were discontinuances in the Process and it was shewed by Howell of Councell with the Defendant in the Writ of error that this is helped by the late Statute which sayes that no Writ of error shall stay execution and Iudgements upon Demurrers as this is are within the Statute Roll chief Iustice By your reason a Writ of error will not now lye for any thing The branch of the Statute is to be intended of matter in form only but this is matter of substance notwithstanding the branch of the Statute alleged Reversed Therefore let the judgement be reversed nisi c. Yokehurst against Scott Hill 1654. Banc. sup Hill 1653. rot 35. YOkehurst brought
the Case against Mackallye Arrest of judgement in an Action upon the case upon a promise and declared That whereas he had an intent to enter an Action against the Defendant and to arrest him at such a time the Defendant in consideration that the Plaintif would forbear to arrest him at that time did promise that he would put in bail to him at any time after when he shall enter his action against him and for breach of this promise he brings his Action Vpon non assumpsit pleaded and a verdict for the Plaintif it was moved in Artest rest of judgement That it is not said how long the Plaintif should forbear to arrest the Defendant Consideration Declaration Reasonable construction Judgement and it may be for so little time that it will not be a good consideration to ground the promise But it was answered that it is well enough for the declaration pursues the words of the agreement between the parties and cannot be better expressed Glyn chief Iustice It is a good consideration and we must make reasonable construction of words Therefore let the Plaintif have his judgement Abbott and Vaughan Trin. 1655. Banc. sup Pasch 1655. rot 557. ABbott brought an Action upon the case against Vaughan and his wife for words spoken of the Plaintif by the Defendants wife Error upon a Judgement in an Action upon the case for words and upon not guilty pleaded and a verdict found for the Plaintif and a judgement thereupon given upon a writ of Error brought this Exception was taken that the verdict found the wife only guilty and yet the judgement was given against Baron and Feme which was urged to be Error but 9 E. 4. was cited on the other side that the judgement is well given Glyn chief Iustice The Iury have found the wife guilty and so the Declaration is true and therefore just cause of Action and the judgement well given Williams and Probe Trin. 1655. Banc. sup VVilliams brought an Action upon the case for speaking these words of her Arrest of judgement in an Action for words viz. Thou art a Whore and I will prove thee a Whore and thou hast made my house a Bawdy house After a verdict it was moved in Arrest of judgement that the words are not actionable because they do not imply that she had played the whore her self though she had made the Plaintifs house a Bawdy house But Glyn chief Iustice answered If we take all the words together as they are laid they are actionable for they are particular applicable words Particular applicable words Iudgement relating to the parties playing the whore Therefore let her have her judgement Bacon and Ramsey Trin. 1655. Banc. sup THe Court was moved for Bacon a Barrester of Grays Inne that he might have his privilege to lay an Action transitory in Middlesex For a Barrester for his privilege to lay his Action in Middlesex whereas it was laid in Northumberland and Franklin and Sir William Butlers case and Bere and Iones his case of the Middle Temple were cited to prove that a Barrester ought to have this privilege that where any transitory Action is brought against him he may have it laid in Middlesex wheresoever the cause of Action was The Court advised and desired to sée the presidents cited At another day it was moved again and upon the presidents produced Granted It was ordered to lay the venue in Middlesex accordingly The Protector and Blackwell Trin. 1655. Banc. sup THe Court was moved for a melius inquirendum to be directed to the Coroner of Middlesex to enquire of what goods one Tooms that hanged himself did die possessed of For a melius inquirendum because the Inquisition returned did only find his goods he was possessed of in London Glyn chief Iustice You may have a melius inquirendum it being for the Protector if the practice of the Court will allow it but it must be directed to the Sherif Sherif Coroner because the Coroner hath done his office already and hath nothing now to do with it Eston and Manley Trin. 1655. Banc. sup IT was moved in Arrest of judgement in an Action of Debt upon an Obligation Arrest of judgement in debt upon an Obligation that the Obligation upon which the Action was brought was for the payment of 100 l. and the Plaintif declares for 80 l and so the Declaration varies from the bond 2ly It is said that the Action was entred in the same Counter whereas there was no mention of any Counter before neither doth it appear that the Counter is a Court. Glyn chief Iustice answered the first exception is to no purpose and for the second it is but an exception to a surplusage which might have been left out of the Declaration and it is also after a verdict Surplusage Iudgement Therefore let the Plaintif have his judgement Thomas and Mich. 1655. Banc. sup THe case was this one promised to the Father Arrest of judgement in an Action upon a promise that in consideration that he would surrender a Copyhold to the Defendant that the Defendant would give unto his two daughters 20 l. a piece and after a Verdict in an Action upon the case brought by one of his daughters for breach of this promise It was moved in Arrest of judgement that the Plaintif had declared upon a joynt promise made which concerned another with the Plaintif and yet the Action is brought but by one of them Joynt promise whereas they ought to have joyned in the Action But Glyn chief Iustice answered that the parties have distinct interests and so any one of them may bring an Action Turner replyed The Declaration mentions the promise to be a joynt promise Distinct interests Glyn chief Iustice But the Law doth distinguish the interest though the Declaration be general Serjeant Bernard Here ought to be a several Action Distinction of Law Iudgement and so hath it been lately adjudged in the Common pleas But it was answered that the Action is brought but for one twenty pound due to one of the Daughters and so judgement for the Plaintif nisi c. VVood and Gunston Mich. 1655. Banc. sup IN a Tryal at Bar in an Action upon the case for words between Wood Plaintif No Action for scandalous words and Gunston Defendant It was said by Glyn chief Iustice That if a Counceller speak scandalous words against one in defending his Clyents cause an Action doth not lie against him for so doing for it is his duty to speak for his Clyent and it shall be intended to be spoken according to his Clyents instructions Hether and Bowman Mich. 1655. Banc. sup IN a tryal at Bar between Hether and Bowman in Trespass and Ejectment it was said by the Court Instrument in Law Copyholder Admission That the Lord of a Copyhoyld is but an Instrument to admit the Copyholder and ought to admit him according
give Green answered that the Plaintif is not bound to shew it precisely for he cannot tell what the Defendant had received and what not but the Defendant doth know it well enough Glyn chief Iustice I doubt of that for the Plaintif must know that the Defendant hath received some monies which he hath not accompted for otherwise there is no cause of Action and though it be not necessary for you to shew all the particular sums the Defendant hath received and not accompted for yet you must express some sum with which to charge him withall and therefore as to this exception I think it material and the Declaration is too general to charge the Defendant by for what issue can be joyned upon this for here doth not appear to be any breath of the Articles but only by implication that he hath received some monies unaccounted for and an issue cannot be tryed upon a presumption Issue Presumption Green prayed leave to discontinue the Action But Wild on the other side said it ought not to be because the Action is brought against a Surety only that was bound for the Defendant that he should perform Articles Glyn chief Iustice If he do discontinue the Action Discontinuance he hath no further remedy against the Defendant But shew cause why he should not appear upon the Articles and to pay so much as it shall be found that he is dampnified by breach of them and then he shall discontinue Devereux and Jackson Mich. 1655. Banc. sup Hill 1654. rot 835. A Writ of Error was brought to reverse a judgement given in an Action of Debt and the exception taken was Error to reverse a judgement in debt that the Plaintif had brought his Action for 14 l. and he declares of a Debt due to him for wares sold by him unto the Defendant which by his own shewing come but to twelve pound Glyn chief Iustice I conceive it is not good for the variance and therefore let the Iudgement be reversed Variance Reversed nisi c. Pooly and Markham Mich 16â—5 Banc. sup THe Court was moved that the Secondary might retorn a Iury upon Affidavit that the Plaintif in a former tryal between the parties had feasted four of the Iury For the Secondary to reâ—orn a Iury. and had allo feasted some of the Iury that are retorned upon this tryal Glyn chief Iustice Let the Freeholders book be brought to the Secondary and let him retorn a Iury. Granted The Protector and the Town of Kingston upon Thames Yates his Case and others Mich. 1655. Banc. sup YAtes and four or five other persons Upon the retorn of a writ of Restitution to Freement places in Kingston upon Thames Freemen of the Town of Kingston upon Thames being disfranchised by the Baylifs c. of that Corporation moved for a writ of restitution to be restored to their freedoms and places in that Town and had it granted which writ was accordingly directed to the Bailifs c. of that Corporation who thereupon do make retorn of the writ and therein set forth at large there Charter and privileges of the Town and the cause of the disfranchisement of Yates and the others and reasons why they were not to be restored And by the retorn the matter of fact for which they were disfranchised appeared to be in substance this viz. that there was a difference amongst those of the Corporation about making an Attorny of their Court at a Court held for the Town that there was like to be a tumult and uproar about this matter whereupon the Baylifs that held the Court did adjourn the Court and commanded all persons there to depart and then they with the rest that were of their party went away But the other parties on the contrary side whereof Yates and the rest that were disfranchised were a part stayed still in the Town-Hall and said the Court was not dissolved and did affirm they were a Court and did therupon make divers orders or acts of Court and caused them to be entred in the Court book where all the orders used to be entred To this retorn many exceptions were taken and first by Sergeant Twisden 1. That here was no sufficient matter of fact retorned to be done by Yates and the others to cause them to be disfranchised 2ly That the retorn did not shew that the Customs of their Corporation did warrant them to disfranchise any for such offences or did shew that any person had at any time been disfranchised for such offences 3ly The retorn mentions that the persons disfranchised had broken their oaths as Freemen of the Town but doth not set forth this oath at large as it ought to be 4ly They do not shew in the retorn that they had any authority to hold that Court which they dissolved nor before whom it was held 5ly It is not shewed in the retorn that Yates and the others were at all convented to answer their offences and so they are condemned without hearing of them which is illegal To these exceptions Green of Councel to maintain the retorn made this answer for the first he said there doth appear a sufficient fact to be done by Yates and the rest to cause them to be disfranchised viz. their tumultuous going into the Court and staying there after it was dissolved and making of orders and entring them into the Book and cited Sir Iames Bags case that this their fact was a corrupting the orders of the Town For the second the retorn doth sufficiently express that by their Customs they may remove persons from their places in the Corporation for such offences for the retorn saith Removeable that persons have been from time to time removeable which is all one as if it had said they have been removed 3ly It is not necessary to set forth the whole oath of a Freeman and here is as much of the oath mentioned as is needfull to shew that the oath was broken by them 4ly It is shewed in the retorn that the Court was held according to their Customes and so it shall be intended to be a good Court and rightly held and it needs not to be expressed before whom it was held 5ly It is expressed that they were convented and that they had also notice of the dissolution of the Court Mr. Attorney General on the same side said Here is cause to disfranchise the parties for here appears by their fact to be a setting up of government against government Opposition of government and this is corrupting of government and done by knowing persons that well understand the Custome of the Town which makes their crimes the greater and it is better retorned that such persons are removeable than to say they have been removed and here is more than an opinion of one of the parties against the opinon of the others for they have reduced their opinion into an Act to disturb the government Mr. Recorder of London on
Action of debt Hogg and Vaughan HOgg brings an Action of the Case against Vaughan for these words spoken of him Arrest of Judgement in an action upon the Case viz. Thou art a perjured Priest and hath a verdict It was moved in Arrest of Iudgement that the words were not actionable for they signified no more than that he was forsworn But the Court held that they must be meant that he was guilty of perjury for which he might be endicted and therefore were actionable Mich. 21 Car. I. Assumes and promiseth to B. that if B. will pay 50 l. to C. his son Action upon the case upon a promise who was maried to D. the Daughter of I. at such a time that he will pay 100 l. to D. his Daughter at such a time B. pays the 50 l. to C. at the time appointed I. fails in payment of the 100 l. according as was agréed B. dies intestate and E. administers and brings an Action upon the Case against I. upon this promise made to B. the Testator and adjudged that the Action did well lie by the Administrator though he should receive no benefit if he did recover Dickenson and Preston Mich. 22 Car. Banc. reg Ter. Pasc 22 Car. rot 251. A Writ of Error was brought by Preston Error to reverse a Judgement in York to reverse a Iudgement against him at York and assigns for Error that the Venire was de Balliva sua whereas it ought to have been de corpore Comitatus and it cannot appear by the Venire to what place the Balywick extends and the Balywick of the City may extend further than the City and upon this the Court adjudged the Venire naught More against Savage 22 Car. Banc. reg MOre Widow brings an appeal against Savage for the death of her Husband Savage appears and demurs to the original writ Demurrer upon an appeal and shews for cause that in one part of the writ instead of the word tunâ— it was tuc which made the Writ incertain To this the Council of the other part answered That it ought to be amended by the Statute of 14 E. 3. and that the Writ ought not for so small a fault to be abated But to this it was replyed that the Statute was only for the amendment of mean process and not of original Writs for original writs were not amendable because the party might purchase a new writ if a former were naught In justification of the writ it was further urged that the word tunc in the writ was a méer formal word and not of the substance of the writ and that the writ would be good enough without it and therefore though it were mistaken it was not so material as that the writ should be thereby abated But the Court answered that an original writ if it be defective in form is abatable if it be not amendable by Statute and conceived that here it being in an appeal where life is in question the writ is not amendable though it be defective but in form neither by the Common Law nor by any Statute Law nor can the party purchase a new writ adjournatur but afterwards viz. 9. Feb. 22 Car. the writ was quashed for the cause aforesaid and because it did not appear that the feme who brought the appeal was wife to the party slain at the time when he was slain It was thereupon moved that the Defendant might be arraigned upon the Count though the writ was abated but the Court held he could not because the Count was founded on the writ which was abated and these books were cited 4 H. 6.14 and 18 E. 3.35 upon view of presidents he was afterwards discharged Luskins and Carver 22 Car. Banc. reg THe Case was this Anne Carver made her last will and testament Prohibition to the Praeâ—ogative Court and a Mandamus and makes Luskins her Executor having bona notabilia in divers Diocesses Luskins proves the will in an inferiour Diocess and not in the Prerogative Court as he ought to have done a stranger sues for Letters of Administration in the Prerogative Court Luskins desires to prove the will there and that he may administer the Court refuseth to admit him to administer the goods except he will put in security to the Court to pay all the Legacies but if he shall refuse will grant Letters of administration to the stranger Mandamus Luskins moves in this Court for a writ of a Mandamus to compell the Prerogative Court to grant him the administration according to the will The Court ruled the other party to shew cause the next day why they should not grant such a writ and were of clear opinion they might do it and to prove it the Countesse of Barkshires case Hill 20 Iac. and the case of St. Burien in Cornwall was cited and the same Term the writ was granted accordingly Fortescue and Brograve 22 Car. Banc. Reg. Tâ—e Plaintiff brings an action for breach of Covenant upon a Deed An action upon a breach of Covenant by deed The Defendant pleads a parol agreement afterwards in discharge of the former Covenant but the Court held the plea not good and took these differences Plea That a parol agreement before a breach of it may be discharged by parol and so pleaded after a breach it cannot be pleaded in discharge without satisfaction also pleaded Concord but a discharge may be pleaded by Deed be the Covenant by Parol or by Deed after a breach and without satisfaction Broome and Evering Hill 22 Car. Banc. Reg. Hill 21 Car. rot 354. A Iudgement was given against the Testator of the Defendant Error to reverse a judgement given in a Scire facias to revive a judgement in debt in an action of Debt for rent and this judgement was revived by a scire facias against the Executor and a verdict thereupon and a judgement was given against him in the Common pleas upon this a writ of Error was brought in the Kings Bench to reverse this judgement and the error assigned was that the tryal was insufficient because the Venire sacias was not good and is not helped by the Statute of Ieofails and to prove this Baynams case in the 5th Report was cited But Hales answered that the Venire facias being awarded before it ought was to be accompted as if no Venire had been awarded and said it was like to a dedimus to take a fine before the writ of Covenant issued forth to levy the fine and so concluded that it was helped by the Statute of Jeofails But the Court took a difference ☞ where in truth there was no Venire facias at all and where there is an ill Venire facis as it is here for thought it be as bad as may be yet being it is a Venire facias it is not helped by the Statute of Ieofails Erâ—or Jâ—oâ— ils but if there had been none the Statute had made
Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in Norwitch and the Error Assigned was Error to reverse a Iudgment in Norwitch that there did but five of the Iury empanelled appear at the tryal and yet a Verdict was given and Iudgement thereupon The Court said that a Corporation cannot grant a tales neither if they could doth it here appear that there was a tales granted and therefore reversed the Iudgement Sir VVilliam Bronker Pasc 23 Car. Banc. Reg. SIr William Bronker was brought before a Iustice of Peace upon an information made Habeas corpus for one committed by a Iustice of peace for refusing to find sureties for the good behaviour that he had choated one at play with false dice the Iustice requires him to find sureties for his good behaviour and upon his refusal commits him to Prison Sir William Bronker brings his habeas corpus in this Court and upon the retorn this matter appear'd the Prisoner prayes by his councell to be delivered because there appeared no matter sufficient upon the retorn why he should be committed but because the Gâ—oler desired time to amend the retorn the Court granted it and would not deliver the Prisoner but took vail for his appearance viz. the Earl of Dover Good behaviour and Earl of Chesterfield And the Court then said that a Iustice of Peace cannot bind one to the good behaviour upon a general information or commit him to Prison for refusing to find suretyes for his good behaviour upon such information Imprisonment VVroath and Elseye Pasc 23 Car. Banc. Reg. Hill 22 Car. rot 1224. AN Action of Debt was brought against Elseye an under Sheriff by Wroath the high Sheriff upon a bond given him to save him harmlesse Demurer to a plea in Debt upon an obligation c. the Defendant pleads that he hath saved him harmlesse to this the Plaintiff demurs and held a good demurrer for he ought to have pleaded non damnificatus and not generally that he hath saved him harmlesse for that he may do in many things and yet the Plaintiff may be damnifyed in some other things where in he was also bound to save him harmlesse The rule was to shew cause why Iudgment should not be given for the Plaintiff VVhite Pasc 23 Car. Banc. Reg. A Iudgement was given in an Action on the Case brought by an Atturney for these words spoken of him Error to revâ—rse a Iudgment in an Action on the Case for words Thomas White is a perjured Knave and a suborned Knave A Writ of Error was brought and divers exceptions taken but the principal were two 1. That the words aâ—â— not well laid for they are adjective words and so not positive enough to ground an Action 2. The words are not Actionable because it is not declared that the party of whom they were spoken was of any Trade or had any office But Bacon Iustice over-ruled all the exceptions and ordered cause to be shewn next day why the Iudgement should not be affirmed The Case of one Nicholas and Webb was afterward cited Case where Iudgement was given in the Common pleas for calling an Atturney Knave which Iudgement was said to be afterwards affirmed in the Kings bench 12 Car. Trin. rot 102. Saunderson and Martin Pasc 23 Car. Banc. Reg. Trin. 22 Car. rot 867. A Iudgement was given in an Action of Debt upon an obligation Error to reverse a Iudgment in Debt to perform such a promise made by the Obligor to the Obligee and a Writ of Error was brought to reverse this Iudgement The Error assigned was that the breach of the promise was not well assigned for it did not appear when this breach of promise was Bacon Iustice The breach of promise is the sole cause of the Action and it appears not to the Court when that was and for this he reversed the Iudgement Paine and Skeltrom Hill 23 Car. rot 740. AN Action of Debt was brought upon an obligation Demurrer a Plea in Debt upon an Obligation the condition was that Skeltrom the Defendant with his Wife should appear at the Marshals Court and for not appearing according to the condition was the Action brought Skeltrom appears and pleads that at the time of the obligation he was solus et innuptus To this Plea the Plaintiff demurrs Rolle Iustice said this Plea was not the same with ne unques loyalment accouple for one extended to a feme de facto and the other to a feme de jure The Court then advised of the Plea but Trin 23 Car. ruled to shew cause tomorrow why Iudgement should not be given for the Plaintiff Stoughton and Day Pasc 23 Car. Banc. Reg. SToughton an undersheriff brings an Action of Debt against Day one of his Bailiffs Demurrer upon a Declaration in Debt upon an Obligation upon an obligation with a condition to save the under-sheriff harmlesse in executing of processes and other things contained in the condition and Assignes the breach of the condition to be that the Bailiff had not Executed such his warrant sent to him upon a processe to him directed out of the Exchequer to levy issues upon certain lands To this declaration the Defendant demurs and shews for cause 1. That the warrant to him directed by the undersheriff was made out of the County where he was undersheriff and so could not be said his warrant as under-sheriff of that County 2. It is not alleged that the mannour of Addinson where he was by the warrant to levy the issues is within the Hundred where the Bailiff hath Iurisdiction Warrant And this the Court held to be a good exception and said that the breach Assigned is not shewed to be within the Condition of the Obligation because the Baily cannot execute a precept out of the Hundred where he is Bailiff and Thereupon the rule was that the Plaintiff Nil capiat per billam if cause were not shewn Tuesday following Cook and Fincham Pasc 23 Car. Banc. Reg. A Iudgement was given for Cook For vacating a Writ of Execution upon an information upon a Statute exhibited by him on the behalf of the King and himself where the King was to have ten pounds of the penalty recovered Cook takes out an Execution upon this Iudgement to levy the whole sum of money recovered to himself as appeared to the Secondary upon examination of the matter referred to him Upon this the Court held the writ of Execution to be ill Execution because it was entire for the whole sum recovered to the party whereas 10 l. was due to the King and ordered a new Writ of Execution and to stay the money in Court till further advice of the matter taken Clark and Pew Pasc 23 Car. Banc Reg. AN Action of Trover and Conversion was brought by Clark Arrest of Iudgement in an Action upon the Case against Pew and his wife and the Declaration was that
Hales on the other side Argued that the King shall have the trust and laid these two grounds 1. That there may be a trust raised upon the surrender of a Copyhold and 2ly that the surrender settles the trust in the Alien and cited 11 H. 4.26 and he said these things were considerable 1. Whether the King shall have any thing and what he shall have 2. Whether he shall have a use for an Alien at the Common law or a trust 3. Whether he shall have a trust raised out of a use And for the first he said that the trust was not a thing meerly in Action but an hereditament and partly in possession and cited Cooks Institutes 469. and said the reason why an Alien may not purchase lands is because that this Kingdom might not be impoverished thereby by transporting the revenues of the land into a forein Country and putting a part of it under the subjection of a forein Prince and the same reason comes to the case in question and therefore is not to be suffered and every Alien that purchaseth is said to purchase to the use of the King and so shall it be in this case and although a thing meerly in Action is not transferable to a Common person yet is it transferrable to the King but this case is stronger for the King for here is not a thing meerly in Action but mixed with an interest and it is no reason but that the law which was made to meet with the subtility of such Alien purchasors should take place here and it cannot be said that that law was made to give remedy to the King for that he had before and a Feoffment now made in trust for an Alien is all one with a use at the Common law and he cited 19. Jac. that trusts made to St. Iohn Daccombe of Annuityes for the Lord Summersett attainted of Treason were adjudged to be forfeited and he held Daccombe that there is no difference between a trust raised out of a Copyhold and other lands and if he hath an interest here in the profits the seisure is good though he have no interest in the land for the land may be seised by the profits 5 H. 5. fol. 9. Title But Rolle Iustice demanded of Hales how the King shall be intitled to the profits of the land where he is not intitled to the land it self and said that the Chancery cannot compell one to Execute a trust for an Alien Chancery and that a trust was invented only to avoid the Statute of uses and said that a trust is not a thing in Action Trust but may be an inheritance or a Chatell as the case falls out Adjourned postea White and Pynder Pasc 23 Car. Banc. reg Mich. 22 Car. rot 440. IN an Action of Trover and Conversion Demurrer upon an evidence there was a demurrer joyned upon the evidence and thereupon the Court directed the Iury to find damages for the Plaintiff if upon the argument of the demurrer the law should be adjudged for him and then the parties desired the Iury might be discharged and referred the matter to the Iudges to determine the law upon the evidence In this case Rolle Iustice took this difference to wit between pleading of a Record Record and giving a Record in evidence to a Iury. Plea If it be pleaded it must be sub pede sigilli or else the Iudges cannot judge of it But if it be given in evidence though it be not sub pede sigilli the Iury may find it Evidence if they have other good matter of inducement to prove it And the partyes in this case were advised by the Court for their own expedition to let there to be issued a venire facias de novo and to waive the demurrer upon the evidence because it was not good nor could bring the matter in question before them that they might determine it for one party saith there is a writ and the other saith there is not a writ which is bare matter of fact and not for us to determine but for a Iury and the demurrer ought to have been whether the writ be good or whether it be bad and should have admitted that there was a writ tyel quel and then had the whole matter come legally before us to wit whether the evidence given to the Iury be sufficient for them to find a verdict for the Plaintiff upon the issue joyned or not But the Court will advise Hamond and Kingsmill Pasc 23 Car. Banc. Reg. HAmond brings an Action upon the case against Kingsmill for these words Arrest of Iudgement in an Action of the Case for words spoken of him in relation as he is a Iustice of peace to wit Mr. Hamond did put in of his own head these words in an examination taken by him viz. I. S. did steal twenty sheep of such a mans and for speaking these other words of him Hamond was a debauched man and is not fit to be a Iustice of peace and hath a verdict against the defendant who moves in Arrest of Iudgement that neither the former nor the latter words were actionable for for the former words that he did of his own head put in words into the examination are words uncertain and dubious what is meant by them whether that he added any thing of his own invention to the examination which was not confessed by the examinant or that he only put the substance of the matter confessed into words of his own endicting and if he did no more that was justifiable and so it shall be taken here rather than in a worse and strained construction to ground an Action upon and for the second words to say that he was a debauched man and not worthy to be a Iustice of peace they cannot be scandalous for they are spoken of him in relation to what he was in time past before he was a Iustice of peace and not as he was at the time of the speaking and it is no scandall to say a man hath been debauched for it may be he is now otherwayes But for the first words it was answered by the Councel on the other side that they were actionable for they must be taken according to Common construction viz. that he had added not only words of his own invention to the examination but the matter it self expressed in those words which was not confessed by the examinant And as to the latter words it was answered they were also Actionable and a Case was cited where Iudgement was given against the Defendant for saying of one that he was a corrupt Iudge Rolle Iustice was of opinion Case that the first words were Actionable but not the second for words saith he ought to be taken according to usuall and Common construction though they are not to be strained for otherwise a man may be abused by subtility and shall have no remedy and Iudgement may be given
ought not to be restored which in brief was for carrying himself in a tumultuous way at an election of Common-Councell-men and disturbing the election this Retorn was read and filed and the Councel thereupon prayed he might be restored because there was not sufficient matter shewed in the Retorn why he should not be restored and these exceptions were taken to the Retorn 1. That it was too general and shews not what manner of disturbance Estwick made at the Court where the election was 2ly Part of his misdemenour is set forth to be clamando veciferando which are words very uncertain and not proper to set forth a disturbance 3ly It was said he was bidden to withdraw and refused and it is not shewn why he should withdraw 4ly The custom set forth for the Lord Maior and Court of Aldermen to imprison ad placitum is not good but they should have shewn that such imprisonment belonged to them per consuetudinem or by the Common-law 5ly They say that they had used to imprison for such causes and do not shew where the custom is used 6ly They say quaedam quaestio orta est touching the election of one to be a Common-Councel-man and shew not his ability for the place 7ly By the incertainty of the Retorn the Plaintiff cannot plead to it 8ly It is said that when he was commanded to go forth he said he would not but it is not said that he did not go forth 9ly It is said that the Court of Common-Councel tendred the Covenant whereas they have no power by Ordinance of Parliament to do it The Recorder of Councell with the City desired time to amend the Retorn in matter of form only And said that the Plaintiff was removed from his place by a Court of Record and therefore hoped he should not be this way restored and that he had no loss by being removed and therefore the Case was the less considerable and whereas it was objected against his amending of the Reton that it was filed so too late to move for it He said that it was not filed by order of Court but only ordered that Copies might be taken of it for Council to peruse and if so then it is not too late to pray it may be amended but though it were filed he conceived that in a case of this importance it might be amended in matter of form as some Reforms had been formerly in this Court Roll Iustice answered the Recorder to this effect You ought to shew some cause upon which the party may have remedy by a Writ of Error or otherwise Return if Iudgement be wrongfully given against him which you have not done and as to the filing of the Retorn Filing a Retorn may be filed either upon motion of the party or by the rules of the Court and it were good you consider how this was filed and as touching the suspension of the party from his place Suspension it ought not to be perpetual but for a time only and said that after filing of a Retorn be it upon motion or by the rules of the Court it cannot be amended Tuesday next following was given by the Court to hear Councel on both parts Amendment Chadly and Stinch Trin. 23 Car. Banc. Reg. Mich. 22 Car. rot 556. STinch brought an Action upon the Case upon an Assumpsit in the Common Pleas against Chadly and hath a Verdict and a Iudgement Error to reverse a Iudgment in an Action upon an Assumpsit Stinch brings a Writ of Error here to reverse this Iudgement and assigns for Error 1. That there were 18 returned upon the Iury and but two of them tryed the issue 2ly Part of Declaration to ground the Assumpsit was in another County and not within the Iurisdiction of the Court where the issue was tryed and for these Errors the Iudgement was reversed except cause should be shewn to the contrary Thursday next Trin. 23 Car. Banc. Reg. IT was moved to quash an Endictment for erecting of a Cottage contrary to the Statute To quash an Endictment for erecting a Cottage the exception taken to it was that he erected a Cottage for habitation but did not say it was used or inhabited as a Cottage But Bacon Justice answered that the very erection of it is an offence against the Statute and therefore the Endictment did very well pursue the words of the Statute and therefore would not quash it VVright and Pynder Trin. 23 Car. Banc. Reg. Mich. 22 Car. rot 440 antea 22 THe Case of Wright and Pynder was moved again to have the Iudgement of the Court. Opinion of the Court on a Demurrer upon an evidence Roll Iustice said that matter of fact ought to be agreed in a Demurrer to an Evidence otherwise the Court cannot proceed upon the Demurrer for the Iudges cannot try the matter in fact for that were for the Iudges to give the verdict which belongs to the Iury to do and to waive the matter in Law Pleading which they should determine and he said that if a Deed be pleaded the party must shew it in Court but if it be given in evidence it is not necessary to shew it if it can otherwaies be proved to the Iury Evidence and so is it of a Record given in evidence and cited one Worsseys Case 17 Iac. Rolls Iustice took also two other Exceptions to the pleading 1. That the Goods mentioned in the Schedule appear not to be the same contained in the Declaration 2ly No Title is made to the Indenture by him who brings the Action and concluded upon the whole matter that the Demurrer was not good and that there ought to be a Venire facias de novo to try the matter again Venire de novo Iudgement Bacon Iustice much to the same effect but differ'd in this that there ought not to be a Venire facias de novo but said that Iudgement ought to be given against one party to wit the Defendant for ill joyning in Demurrer to the intent the party that is not in fault may be dismissed and the parties here have waived the Tryal per pays by joyning in Demurrer But Roll answered that no Iudgement at all could be given for both parties be in fault one by tendring the Demurrer the other by joyning in it and the Defendant might have chosen whether he would have joyned or no but might have prayed the Iudgement of the Court whether he ought to joyn The Court advised to search presidents for a Venire facias de novo after a Demurrer upon an evidence and if there be any they held that the same Iury ought to come again and not another Roll said Iury. if a special verdict be found insufficient a new Venire facias ought to issue and he saw no difference between that and this Case King and Summerland Trin. 23 Car. Banc. Reg. IN the Case of King and Summerland again moved the
Court held that the pleading of a bargain and sale to be debito modo irrotulatum secundum formam statuti is good enough Opinion of the Court touching pleading of an Enrollment though it be not pleaded to be inrolled within six months yet ruled it should be moved again The same term Iudgement was given that the Plaintiff nil capiat per billam because the Deed was not said to be enrolled neither secundum formam statuti nor within six months but only debito modo which may be an Enrollment at the Common law and not according to the Statute The City of London and Estwick Trin. 23 Car. Banc. Reg. THe Court was again moved in the Case between the City of London and Estwick Argument concerning the Writ of Restitution to a common-Councel-mans place Amendment that the return of the City might be amended although it were filed because there are Presidents where it hath been done Roll Iustice answered there was never any amended after the filing before H. 7ths time It was replyed by the Councel that the return being of this Term it might be amended for it rested in the breast of the Iudges But Roll Iustice answered to this that Acts of the Court remain in the breast of the Court the same Term but not acts of others and therfore this being so was not amendable and said that inferiour Courts cannot amend a presentment in matter of fact for that were to alter the custom of the courts and it was then said that Endictments had been amended after the filing of them And Alderman Langhams Case was also urged where a retorn of the City was amended after it was filed yet this was ruled not amendable Twisden of Councel with the City argued that Estwick ought not to be restored to his place of a Common-Councel-man for these reasons 1. Because it was not a place of profit and so it was no damage to him to be removed and therefore his sute was to no purpose 2ly It is not a place of Government and so no dignity in it but it was a place meerly of service and trouble But Roll Iustice answered that a writ of restitution had been adjudged good to restore a Constable to his place Restitution which was more a place of service and trouble than this 3ly There is a judgement against Estwick in a Court of Record and it must be avoided either by error or attaint as the Statute directs and the partie cannot be restored by a Writ of Restitution and for the objection that the Return is too general he answered that Faith is to be given that there was a disturbance made by him as is suggested though it be not so plainly expressed as it might have been 2ly Here appears a contempt to the Court and for this he may be suspended 3ly The Custome is well pursued upon the whole matter taken together 4ly The Custome is well laid for the commitment ad placitum for it refers to the words suspendere vel amovere that is either one or the other 5ly The word require amounts to a command being spoken in a Court of Record and the disobeying it was a contempt Hales of Council on the same side argued much as Twisden had done and added to it as followeh 1. That there appears a reasoanble cause precedent why he should be suspended and then it follows they may suspend him ad libitum 2ly The alleging of the disturbance is not material for that is not the ground of his a motion from his place but only the inducement to it 3ly Requisitus shall be understood requisitus per curiam it being alleged to be in Court 4ly Recusavit is more than denegavit and implies he did not the thing enjoyned him and so might well be committed 5ly There may be cause to grant a Writ of restitution though no cause for the restitution For a common-Councel-man of Coventry had a Writ of restitution out of this Court and yet upon his sute was not restored The Recorder moved for a longer day to be heard for the City because it was a weighty cause and said that no restitution could be made for the Writ was not well directed and so is not well executed The Plaintiffs Councel desired expedition in the Cause Whereupon Roll said here hath been no delay in the business but the rule is against you and he took these exceptions to the Retorn 1. It appears not by the retorn that the Plaintiff is removed from his place but only that he is suspended and then he may well be restored and it is not said for how long time he is suspended 2ly It is not said that he is suspended for a reasonable cause 3ly It is not said what the disturbance was that he made for which he is suspended And further said that the Court of the Common-Councel is not a Court of Record Error Restitution for no Writ of Error lies there but is a Court only of Advise Bacon Iustice as Roll and said that Estwick had only remedy to be restored by a Writ of Restitution and not by a Writ of Error or an Attaint Adjourned till Saturday to hear Councel for the City Rawson and Bargue Trin. 23 Car. Banc. Reg. Hil. 17 Car. rot 904. RAwson brought an Action of Debt against Bargue for 15 l. upon the Statute of 2 Ed. 6. for setting forth of Tithes Argument upon a special Verdict for Tithes in an action of Debt upon the Statute of 2 Ed. 6. And upon the Tryal a special verdict was found wherein the Question was whether the Church by reason whereof the Tithes were claimed were a free Chappel and given to Ed. the 6th by the Statute of 1 Ed. 6. and so discharged of Tithes or not VValker of Councel with the Plaintiff argued that it was not a free Chappel because there was a cure of Souls and so could not be free but presentative and said that the word free was a word of distinction to distinguish things of different nature one from another as liber homo is to distinguish a free maa from a villein Francksold Francktenement and the like and cited Bracton lib. 4. C. 3. 241. He likewise distinguished Chappels into three sorts 1. Donative 2ly Presentative 3ly Without cure of Souls and said that Chappels presentative were not given to the King by the Statute of â— Ed. 6. and cited Nat. brev 48. and 13 E. 4. f. â— and 6 H. 7. c. 14. and 5 H. 7. f. 37. and said that it is not within the meaning of the Statute of 1 Ed. 6. to give Chappels presentative because it is not within the mischief which the Statute was made to prevent and so intends not to give Chappels with cure of Souls and the word free is but nominal and doth not make it free if it be not so otherwise Hales for the Defendant argued that it was a free Chappell within the Statute of 1 Ed. 6. For first it is called
so and it shall be presumed it is rightly named so 2ly It is so found to be by the Iury and to prove that it is a free Chappell it is not presentative and 2ly It appears not to be within the Iurisdiction of the Ordinary 3ly The Act of 1 Ed. 6. is an Act which is general and gives all free Chappels and extends as well to Chappels which are only reputative free Chapbels as well as to them which are so indeed even as it is of a Chauntery College and an impropriation as the Books are and it is a free Chappell nevertheless it be presentative and with the cure of Souls for a free Chappel may now be with the cure of Souls although by the old Canon law it could not as was held in Childs case 1 Iac. The Chappel within the Tower is a free Chappell donative and yet it is presentative and hath cure of Souls so saith Lynwood of the free Chappel of St. Martins It is also the intent of the Statute that it should be so for a College and a Chauntery with cure are within the Statute as may appear by the Exceptions of the Statute of the Free Chappel with cure of Souls in the Isle of Eely called the Chappel of the Sea and the being presentative with cure hinders not but that it may be within the Statute for the presentation might arise at the first by special composition as it is 13 E. 4. f. 4. and Register f. 307. and it was instanced in the free Chappel of Hastings in Sussex and it may be a Chappel donative by prescription and yet presentative Adjornatur ad proximum terminum to be argued again Vid. postea Barker and Martyn Trin. 23 Car. Banc. Reg. THe case between Barker and Martyn was again moved Arest of judgment in Trepass which was briefly this An action of Trespass was brought by Barker against Martin wherein he declares that the Defendant had broken his House and had taken away quinque instrumenta ferrea Anglice fetters In arrest of Iudgement exception was taken to the Declaration that Instrumenta serrea Anglice fetters was not a good expression in Latin as it ought to be of Fetters because there was a proper Latin word for Fetters namely Compes so that it ought to have been quinque Compedes or quinque paria Compedum and not as it is for the word Instrumentum is uncertain and may be used to signifie any thing else with an Anglice added to it as well as Fetters and as it is the pleading is not all in Latin as the Statute directs to avoid Barbarsm and the word Anglice when it is properly used in a Declaration is to help words of art which cannot be expressed without 〈◊〉 Anglice and is not to be used where there is a proper Latin word to signifie the thing as in this Case there is On the other side it was said that general words might be good in a Declaration and barbarous words sometimes and cited Hobarts Reports 267. and Ward and Smiths Case Trin. 4. Iac. rot 2305. Roll Iustice It is a hard thing to maintain this Declaration Declaration for if it should be admitted good it would bring in all Barbarism in pleadings Pleading and any senseless word might be used with an Anglice joyned with it and he said one was endicted for using quandam artem Anglice of a Draper and it was adjudged naught and in the case between Tailour and Taylour 9 Car. Trespass was brought pro Decem caponibus Anglice Capons avidbus domesticis Anglice powltry and adjudged not good Yet the rule of the Court was to argue it again Saturday next following Eeles and Lambert Trin. 23 Car. Banc. Reg. Pasc 22 Car. rot 1646. EEles brought an Action of Covenant against Lambert the Executor of Sir Molton Lambert An Action of Covenant against an Executor and declares that Sir Molton Lambert did in his life time by his indenture let certain lands unto him for years and covenanted thereby for himself his Executors Administrators and Assigns that the Lessee should not be put out of possession of the lands let by him during the said Term and that since the death of Sir Molton Lambert his Lessor he was put out of possession by such an one and upon this he brings his Action of Covenant against the Executor The Defendant pleads no Assets upon this an issue was joyned and a special Verdict was found To this effect That Sir Molton Lambert did let the lands mentioned in the Declaration to Eeles prout that there was such a Covenant in the Deed prout and that the Plaintiff was put out of possession of the lands prout They find likewise that Sir Molton Lambert made his Will and made the Defendant his Executor and died that Sir Molton Lambert by his will gave many legacies of goods and that the Defendant before the Plaintiff was put out of possession did pay all the Legacies in kind and that besides those Legacies he had not Assets to discharge the Covenant Vpon this Verdict the matter in Law was this whether the Executor ought to have forborn the payment of the Legacies and to have expected till the end of the Term let to the Plaintiff or till the Covenant had been broken and for doing otherwise should not be charged with the Covenant de bonis propriis or whether the Covenant not being broken in the life of the Testator nor before the Legacies paid he had not paid the Legacies as he ought and should not be freed from being charged with the Covenant de bonis propriis Vpon opening of the Case Rolle Iustice said that a decree in Chancery against an Executor Decree in Chancery shall not be satisfied before an Obligation made by the Testator and become due after his death Saturday following was set to here Councell again Jones and Stanley Trin. 23 Car. Banc. Reg. IOnes brought an Action of Debt upon an Obligation to perform Covenants of an Indenture against Stanley Arest of Judgment in an ACtion of Debt and hath a Verdict against him Stanley moves in Arrest of Iudgement and takes these exceptions 1. That the Goods valued in the Declaration are not within the condition of the Obligation 2. The goods are not certainly set forth what they are for the Declaration is of divers parcells of old stuff 3. Some of the things mentioned in the Declaration are not goods and so not to be valued for the Declaration is of partitions withi nt he house and of a shed which are part of the free hold and not goods upon these exceptions the Iudgement was arrested till the other should move it VVhite and Thomas Trin. 23 Car. Banc. Reg. Trin. 18 Car. rot 1400. WHite binds himself Error to reverse a Iudgment in Debt brought by an Heir his Heirs Executors and Administrators in an Obligation to Thomas for the payment of a certain summ of mony at a certain day
the mony is not paid a Iudgement is obtained against White for the mony White makes his will and makes his Heir at law his Executor and dyes leaving lands to descend White as Heir brings a Writ of Error to reverse this Iudgement It was argued by the Councell of the Plaintiff in the Writ of Error that the Writ did lye because although the Action in the former Iudgement was but a personal Action yet in this Case the Land of the Heir may be charged by the Iudgement Heir Elegit for an elegit may be thereupon taken out to charge â—is Lands and therefore the Iudgement concerns him as Heir as well as Executor and therefore it is reason he should bring a Writ of Error to reverse the Iudgement because he may be prejudiced by it Executor And a Case in Trin. 29 Eliz. rot 631. Banc. Reg. was cited that the Heir is pridy to the Iudgement and therefore shall have a Writ of Error Error and he is not meerly terr-Tenant 13 E. 4.2 Roll Iustice the terr-Tenant sole shall not have a Writ of Error upon an extent Error And in the Case at the barr the Heir is not privy to the Iudgement and the extent is only upon him as terr-Tenant and he is not made privy to the Iudgement by the extent but after Execution he may have a Writ of Error and he said Bail the Bail cannot bring a Writ of Error upon the Iudgement given against the Principal and the same reason is here and it will be very hard to maintain this Writ of Error Adjourned to the next term Terry and Baxter Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 394. TErry brings an Action of Debt upon an Assumpsit against Baxter Demurrer upon an Dclaration in Assumpsit to stand to an award to stand to an Award The Defendant pleads nul arbitrement the Plaintiff sets forth the award and assigns a breach The Defendant demurs and for cause shews that part of the award was to pay 5 l. to the poor of the Parish of D. which was not within the submission and so the award was not good Rolle Iustice answered if the award be void to the 5 l. Award good in part i a good award awarded to be paid to the poor yet it is good to the rest for it is perfect as to the ending of all differences between them which are submitted and therefore shew cause on Monday next why judgement should not be given for the Plaintiff Morefield and VVebb Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 50. VVEbb brings an Action upon the Case against Morefield in the palace Court at Westminster Error to reverse a Iudgement in an Action upon the Case and hath a Iudgement Morefield brings a Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. It is not shewed in the Declaration that the cause of Action was infra jurisdictionem palatii But Rolle Iustice answered Iurisdiction that it was shewed to be infra jurisdictionem Curiae and that was good enough for the Court is alleged to be held by Letters patents Retorn A 2d Exception was that there was not fifteen dayes for the retorn of the Venire facias as there ought to be But to this Rolle Iustice also answered that the Court is held by Letters patents and therefore it may be retornable within fifteen dayes though by the usual course of the Common law it cannot And therefore ordered the Plaintiff in the Writ of Error to shew better matter otherwise Iudgement should be affirmed against him The King and Holland Trin. 23 Car. Banc. Reg. THe Case between the King and Holland was moved again For quashing an inquisition for the King Inquisition and the Councell against the King moved that the inquisition found for the King to entitle him to the use of the Copyhold might be quashed because the King cannot be intitled to such a use because it is a thing in privity only and cited the Statute of 27 H. 8. of uses Vse and Cooks 1. rep 123 and said that the King cannot be intitled ot Copyhold lands of an Alien much lesse to the use of Copyhold lands Copyhold King VVrong Protection Trust if he should 1. The Lord would be wronged which the King ought not to do but to protect his subjects for the protection of the subject is not only matter of honour to the King but also of trust in the Crown 2ly A stranger is wronged by it 3ly The Copyholder of the Manor cannot have remedy for the injury done him Sute for he ought to sue in the Lords Court and not else where and here he cannot do it and the rule in law is de minimis non curat lex and it is much lesse for the honnour of the King to have a Copyhold estate Honour which is a base tenure But it may be objected that if the King shall not have this use he shall be in a worse condition than a subject To this it is answered that he shall be so in cases which touch his royalty and may be a disparagement to him Copyhold which indeed doth not make him in a worse condition though it may seem so but it is more for his honor and a Copyhold is an estate at the will of the Lord and ought to be protected by the Lord and the King cannot be Tenant at will to any Alien Trust and therefore cannot have a Copyhold estate and an Alien is not capable of a trust because it is a thing in Action which an Alien cannot have and therefore he cannot derive it from him Twisden for the King in his Argument considered 1. Whether the King can have a use at the Common law which is for an Alien 2. Whether a trust differs from a use for the first he said that an Alien may purchase lands Alien Praerogative and a use at the Common law but he cannot retain them therefore the King shall have them by his Praerogative and a use is not a thing in privity but is an Antient inheritance at the Common law 2ly There is no confidence annexed to cestui que use or to the Feoffor but may be disposed of 3ly Things privity in Action may be given to the King Privity and a use is an inheritance in the nature of a Chattell 4ly A use is grantable over Privity and therefore may be given to the King and the meaning of the word lost in the Statute is to be intended that it may be lost for the difficulty of finding such subtile conveyances and not that the right was really lost Trust And for a trust it is but a new name given to a use and invented to Defraud the Statute of uses and a trust of a Copyhold is all one with another trust for it is the taking of the profits of the land and not the Estate in
the land and the King shall have it And to that which is said that the King cannot be a Copyholder it is not so clear for I conceive the contrary for a surrender of a Copyhold to him is good and of a use too and he cited these books 9 H 6. fol. 25.20 B. 3. f. 3.11 rep 91. Rolle Iustice said that a Trustee or cestuy que trust cannot take the profits of the land Cestuy que trust Equity Outlawry Law Equity but hath only his remedy in equity for the Estate in the land is only in the party trusted and the King shall not have the profits of the land upon an Out-lawry against the cestuy que use or cestuy que trust And Law and Equity ought not to be confounded therefore if the King hath equity for a thing he ought not to sue for it at the Common law so is it in this case at the bar Adjourned Chapel and Drew 23 Car. Banc. Reg. Hill 11 Car. rot 921. IN this case the party being attainted of felony Exception to a pardon for Felony Pardon pleaded his Charter of Pardon and Claims thereby to be restored to his Goods and Chattels forfeited to the King by the felony and the Question was whether as the Pardon was penned he should be restored or no the words of the Pardon upon which the Question grew were these pardonavit remisit relaxavit and it was held that he was not by these words to be restored to his Goods and Chattels for the words do not amount to a Surrender in case of a ommon person much less in case of the King and there ought to have been the word restituit Roll Iustice said this Pardon was drawn by Noy Attorny General and was too short Felony Tryal and it was said by him that if one be committed to the Gaol for one felony the Iustices may enquire and try the party for another felony for which he was not committed Tylers Case Trin. 23 Car. Banc. Reg. AN action of Debt was brought against Tyler upon an Obligation to stand to an Award Demurrer to a Replication and the Plaintiff declares of an Arbitrement made the 28th day of May in such a year ready to be delivered up the nine and twentyeth day of May in the same year The Defendant pleads nullum Arbitrium The Plaintiff replies that the Award was made by the Vmpire the 28th of May ready to be delivered up upon the same 28th day of May and to this replication the Defendant demurs and shews for cause that the Plaintiff had set forth double matter one in his Declaration and the other in his Replication for the Award set forth in the Declaration and that set forth in the Replication cannot be intended to be one and the same But Roll Iustice answered that the Issue to be tryed is not to be taken upon the day of the Award made and therefore it requires no answer Demmurres and so cannot be double and one ought not to demur for the doubleness of the matter upon a thing upon which no Issue can be taken and â—â—led better matter should be shewn or else Iudgement should be given for the Plaintiff Estwick and the City of London Trin. 23 Car. Banc. Reg. THe Case of Estwick and the City of London was again argued by Serjeant Glynn for the City Argument in the Case of the VVrit of Restitution to a Common-Councel-mans place Restitution Custome in his Argument he insisted upon three particulars why Estwick could not be restored to his place of a common-Councel-man 1. That a common-Councel-man may be removed or suspended from his place at pleasure by the custome of the City 2ly That he cannot be restored by Law 3ly No restitution can be in this case as it now stands First the custom to remove a common-Councel-man is good for it first began by agreement and such a custome is good at the common law much more here and it is not an unreasonable custome although it may seem so prima facie like as it is in the case of a Lord that feiseth the Lands of his Villein and in the case of a Copyholder that for feiteth his Estate by the felling of Timber A second reason is it agrees well with the nature and condition of the office of a common-Councel-man to be subject to this Custome Tryal and we know that many things shall be tryed by Custome contrary to the course of the common law 3ly We see that the order of the Parliament is a rule to try matters concerning their Members and so it is here in the Citie to try their Members 4ly If it should not be so it would prove destructive to the City by waiting till such an offender might be removed by a course in Law which is far more tedious than this customary way To the second point he said that by Law there can be no restitution to this office and this is proved by the very nature of the Writ of Restitution which is to restore the party to a freehold or some other matter of profit neither of which can be in our case and a writ of Restitution is to restore one to a possession where one may not be restored by an ordinary way neither doth the Statute of Magna charta extend to our case for a common-Councel-mans place is merely grounded upon the custome of the City and not upon the Common law and he said there are three grounds for a Writ of Restitution 1. A contempt to the King 2ly A hurt to the Common-wealth 3ly Particular dammage to the party but none of these is in our cause and therefore there is no cause for a Writ of Restitution The case of Sir Iames Baggs having a Writ of Restitution was because he was deprived of his Trade and Freedom Constable Church warwarden free-hold and our case differs from the case of a Constable or a Church warden or any case that can be cited for a Church warden is an officer in relation to the Common wealth for the execution of Iustice wherof the Common law takes notice and likewise a Constable is a known Officer to minister Iustice in relation to the publique Recorder so is it of a Recorder of a Corporation and so they all differ from our case For authority to this point in 17. Iac. but moved first 16 Iac. Warren a common-Councel-man of Coventry was denyed upon the retorn of his Writ to be restored and our case and retorn is more strong against the Plaintiff and Burman a Gentleman of one of the Inne of Court being expelled could not be restored by a Writ of Restitution and lately a common-Councel-man was removed for not taking the Protestation For the third point whether upon the Writ it self as this case is there can be any restitution made I conceive not because it is directed to the Maior and Commonalty and Citizens of the City of London and so
there is in it a false recital of the suspension Recital for he was not removed by the Citizens and so the Writ is directed to parties who did not the wrong and so it is ill directed and it differs from the direction of the Writ in Sir James Bags case and it ought to have been directed to the Sheriffs or Ministers who have authority to restore him as they did remove him for the party that hath done no wrong ought not to be punished or molested and for the ill direction of the Writ could not Warren the common-Councel-man of Coventry he restored and the Corporation of London is responsable for all particular Misdemeanours done within any Courts of Iustice within the City or other general Misdemeanours there committed Misdemeannours Maynard on the other side argued that the case was mistaken as it is stated in the Retorn for it supposeth that the party is removed at pleasure and yet supposeth also that there is a cause to remove him to wit his refusing to go out and expresseth not that he did not go out nor that he was commanded to go out but that he was requested And whereas it is more than to advise for he hath a privilege for his own good and the good of the City 3ly The Writ is well directed and cannot be otherwise for the party to have remedy and all the Presidents are as this is Presidents and Alderman Harris his case is the same in point with this where it was by three Iudges resolved that he should be restored to his Aldermans place because it was a place of Honour as well as of Burthen Roll Justice said 1. That the Writ was well directed 2ly That the custom was ill recited 3ly If it were well recited yet it is a void custom 4ly The Retorn is not good for the incertainties of it viz. in the causes shewed why the party was removed and therefore that he ought to be restored to his place Bacon Justice to the same intent and said that wheresoever a Commissioner or other person hath power given to do a thing at his discretion it is to be understood of sound discretion and according to Law Discretion Iurisdiction and that this Court hath power to redress things otherwise done by them The rule was that the party be restored if better matter be not shewn Tuesday following Trin. 23 Car. Banc. Reg. IN an Action of Trespass for digging in his Ground Arrest of Iudgement in Trespass and carrying away 200 load of soyl It was moved in arrest of Iudgement that it should have been of soyl inde provenient and that an intendment cannot make it good Roll Iustice said it seems a good Exception for as it is it is too generalite laid Vincent and Fursy Trin. 23 Car. Banc. Reg. Hil. 22 Car. Rot. Q. VIncent brought an Action of Trespass against Fursy for breaking open 2 Chests and taking away certain Cloaths and 3 l. in mony Arrest of Iudgement in Trespass and had a Verdict for him The Defendant moves in Arrest of Iudgement and takes these exceptions 1. That the Declaration is too general for it sets not forth what the cloths were which were taken away and so the value of them cannot be known as it ought to be that Damages may be rightly given 2. In this one Declaration there is an Action of Trespasse joyned with an Action upon the Case viz. the Trespasse for breaking open the Chests and the Action of the Case for taking away the cloathes and mony which ought not to be for two several Actions ought not to be laid in one Declaration Wadham Windham of Councell with the Plaintiff said it was well enough and could not be otherwise and the thing is certainly enough set forth and shall be interpreted reddendo singula singulis viz. the spoliavit in the Declaration shall have reference to the cloaths and the cepit to the mony Trover and Conversion Rolle Iustice said that an Action of Trover and Conversion for divers sorts of linnen had been adjudged good and 29 E. 3. An Action of Trespasse lyes for beating of his servant and in Cletheroes case an Action of Trespasse was held good for rescuing a prisoner from him whom he had Arrested Trespasse and the Cook of Grayes Inn brought an Action of Trespasse for taking away his wife per quod consortium amisit and it was held to be well brought but if the cloaths in the case at the bar had not been in the chest the Action would not have lain and he took another exception namely that Declaration wss for the breaking of 2 chests Incertainty and so it appears not where the cloaths were when they were taken whether in one oâ— in â—oth of them The rule was to stay Iudgement till they had seen the Reâ—ord Capell and Allen. Trin. 23 Car. Banc. Reg. Hill 22 Car. rot 639. CApell brought an Action Debt upon an Assumpsit to stand to an award the Defendant pleaded Nal Arbitrement Demurrer upon an award the Plaintiff replyes and sets forth the Arbitrement and the breach the Defendant demurs and for cause shews that the award was not good because it was made but of one part Award for it was that one of the parties should do such things expressed and that the other party should pay for the making the Bonds of Submission which cannot be awarded and so nothing is awarded for him to do and the Arbitrators cannot award this because it is not within the submission Submission Rolle Iustice held this a good exception and said the Charge for making the writings is not within the Submission for the bonds were made before the Submission and it was held 13 Jac. that the words super praemissis in the award will not help an award made but of one part Trin. 23 Car. Banc. Reg. AN Action of Debt was brought upon a Bond Demurrer to a Declaration in Debt upon a bond to perform Covenants of an Indenture Breach Interpretations to perform the Covenants of an Indenture of a Demise for years The Plaintiff declares that he made the Lease to the Defendant the 28. day of May and that afterwards scilicet the 27 of the same Month of May the Defendant broke the Covenant To this Declaration the Defendant did demurr because it appears that the breach is set forth to be before the lease began which cold not be and so there is no cause of Action But to this Bacon Iustice said where the postea and the scilicet are repugnant in a deed as here they are the postea shall be good to signifie the time of the Covenant broken and the scilicet shall be void Therefore shew cause why the Plaintiff should not have Iudgement Nota. Trin. 23 Car Banc. Reg. A Prohibition was prayed to the Corporation of Lincoln upon a suggestion made and sworn in this Court For a prohibition to the corporation of
That the law doth take notice of an Arch-deacon being a publique Ordinary and therefore it is not needfull to expresse that the letters were granted per Archidiaconum of such a place Ordinarium illius loci or cui administratio pertinuit but otherwise it were if they were granted within a peculiar jurisdiction Therefore he ordered to shew better matter or elce Iudgement should be given for the Plaintiff Eeles and Lambert Mich. 23 Car. Benc Reg. vid. antea THe Case between Eeles and Lambert was again moved Argument up on a speciall verdict which upon a speciall verdict found was this Sir Molton Lambert makes a lease of certain lands to Eeles for 21 years by deed and Covenants for himself his Executors Administrators and Assigns that the lessee shall peaceably and quietly enjoy the lands let during all the Term the Lessor makes his Will and thereby makes Lambert the Defendant his Executor and dyes and by the Will divers goods in specie are devised to sundry persons Lambert the Executor delivers the goods bequeathed to the Legatees Eeles is ousted of the lands by I. S. and thereupon brings an Action of Covenant against Lambert the Executor who pleads fully administred The question was whether the paying of these legacies by the Executor were a devastavit Devastavit and so the Executor to be charged de bonis propriis to satisfie the Covenant broken or no Green of Council with the Plaintiff argues that it was a devastavit notwithstanding that the devise was of goods in specie and that the Executor had only delivered them because that the Legatees had no property in the goods bequeathed them Property before the Executor had delivered them no more than if they had never been devised and cited 2 H. 6. f. 16. and Cooks Lit. 111. and he said the finding of the Covenant broken was nothing to the purpose and he said it was a Devastavit because it shall be intended that the Executor might know of the Covenant made by the Testator which he was bound also to keep or else to satisfie for the breach of it Covenant and the contingency whether the Covenant would be broken or no makes no difference in the Case for if it should it would prove mischievous in destruction of Covenants which are to be accompted of as Debts Doct. Stud. lib. 2. C. 10. Dyer f. 324. Hob. â— 363 397. But it may be objected that if this should be a Devastavit then Legacies could not be paid which would be dangerous to Executors by reason of being lyable to sutes for them Executors 21 E. 4 f. 21. Brook Tit. Proces S. 10. To tâ—is I answer It may be dangerous yet it is not to the purpose for an Executor should consider of such dangers when he takes upon him an Executorship and take notice of them and he is not compellable to pay Legacies and the Law will not protect him if he pay them against Law Hob. 246. and if the Court Christian endeavour to compel him he may have a Prohibition Prohibition 3ly The Executor peradventure might conceive that there would be Assets afterwards and in that consideration did pay the Legacies and if the 5 Rep. Green and Harisons case and 15 Iac. Robsons case be objected I answer this Case differs from them for here the Question is betwéen Legacies and Debts and there between one Debt and another to wit betwéen a Debt of a higher nature and a Debt of a lower nature Hales for the Defendant argued that it was no Devastavit 1. He agrées Property that the Legatees have no property in the Goods by the devise 2ly If the Covenant had béen broken when the Legacies were paid it would have been a Devastavit 3ly He held that the matter is as well found in the special verdict as it might have béen pleaded and not put at all to the Iury to find The Question here is whether the administration of the Goods before the Covenant broken be good after it is broken and there is good matter before the Court found in the special verdict though it might have been found better The first Argument I will draw from the nature of that upon which the Action is founded namely the Covenant The Action depends partly upon the Déed of Covenant partly upon the breach of it and here is no ground of Action at the time when the administration of the Goods was made and Harisons case cannot be avoided for a Statute is a present duty Duty Star Obligation and ought to be paid before an Obligation Robsons case 14. 15 Iac. And it is as agréeable to Law to pay a Legacy as a Debt upon a Covenant and the mischief to the Lessee in our case is not so material as the mischief may be on the Executors part it is not materially objected that he might take security Security for he cannot compel it For the Objection that our Law takes notice of a Legacy I answer that the Law takes notice of a Legacy as to give an interest in it to the Legatee Interest although he may not take it without the Executors consent 2ly It takes notice of it as remediable by the Law of the Kingdom though not by the Common-law and therefore consider the Statute 21 H. 8. of Administrations Common law Civil law and the Common-law is Iudge of the Statute concerning Administration and not the Spiritual-law Hill 17 Iac. Hinson Buttons Case The Common-law gives not a remedy fora Legacy Legacy but the Spiritual-Court is supported by the Common-law to do it and by the antient Common-law there was remedy to recover a Legacy 2 Rich. 3. f. 14. Glanv lib 7. C. 6.7 and the power of the Ecclesiastical Court is derived from the Common-law and the Common-law will take notice of a compulsary way in the Ecclesiastical-Court to pay a Legacy And the payment in our case is executed and now the Law takes notice of it because the Defendant was compellable to it Pâ—omise If an Executor promise to pay a Legacy an Action upon the case will lye against him if he do not pay it Roll Iustice the Testator may defeat all Covenants by this means and Greens reason is not answered which is the great doubt in the case It was Necton Sharps case 38 Eliz. that Legacies ought to be paid conditionally viz. to be restored if the Covenant should be broken When you argue again argue to this point Bacon Iustice cited a Case 32 Eliz. in the Exchequer against the opinion of Roll and said if the Legacies should not be paid it might be a loss to the Common-wealth for it may be the Goods will perish with kéeping them and the keeping of them may be a charge to the Executor and no body shall have any benefit of them for they may cost more to keep than they are worth and a Devastavit lies not against an Executor of
Verdict he doubted whether it could be helped now in this Court though it might have been helped in the inferior Court where the Action was brought by examination of it and therefore ruled to shew cause why Iudgement shall not be reversed on Friday next It was this Term reversed at the Defendants motion for his own expedition Brooke and Brook Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 580. BRooke brings an Action of Debt upon an Obligation against Brook the condition was Demurrer to a plea in debt upon an Obligation that the Obligor should make an Estate of inheritance to the Obligee in such lands at such a day and place and for not doing it he brings his Action The Defendant pleads that he was ready at the day and place to make the Plainiff an estate of inheritance in the lands The Plaintiff demurs to the plea Notice and for cause shews that the Defendant doth not shew that he gave notice to the Plaintiff of his being there To this Roll Iustice said it is not necessary to give notice of the day or place A second exception was that he had not shewed that he gave the Plaintiff notice what estate of inheritance he would make him To this Roll Iustice said he ought to have shewn Time Place that he gave notice what estate he would make him and therefore let the Defendant shew cause why the Plaintiff should not have Iudgement Kale and Iocelyne Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1282. KAle brings an Action of Debt against Iocelyne an Executor Demurrer to a plea by an Executor in Debt for reâ— brought against him Plea Executor VVaiver Covenant and declares for rent grown due since the death of the Testator by virtue of a lease for years made of certain lands by the Plaintiff unto the Testator which yet continues and declares that the Executor debet detinet c. The Defendant pleads fully administred the Plaintiff demurs upon the plea For pleading in the debet and the detinet Bacon Iustice said it was good and so had been adjudged To which Roll Iustice answered it had been adjudged pro con to be good and to be bad and he said that an Executor cannot waive a Term let to the Testator for he is bound by Covenant to hold it and said that the Declaration was good in the debet and detinet prima facie for it shall be intended that the land let to the Testator is worth as much by the year as the rent that is paid for it till the contrary be shewn and then it is reason that the Executor be charged Bacon Iustice said that the Executor may waive the possession if he find that the rent is more than the land is worth otherwise it may be mischievous to him Roll. Iustice said that the Declaration must be in the detinet and debet otherwise it will be mischievous to the Plaintiff and said that a specialty shall be satisfied before a rent reserved upon a lease by deed Allets which Bacon denied and it was said that a lease for years shall be assets in the hands of an Executor although the rent reserved be the full value of the Lands let by the lease The Defendant was ordered to shew cause why Iudgement should not be given against him Baker against Edmonds Mich. 23 Car. B. Reg. Hill 22 Car. rot 222. BAker brings an Action upon the Case against Edmonds Special verdict in an Action upon the Case whether a verdict maintains the issue joyned and declares that whereas I. S. was indebted unto the Plaintiff in a certain sum of mony and afterwards being so indebted became a Banckrupt and that a Comission upon the Statute of Bankrupt was taken out by him and other creditors against him and that it was found that the Defendant was indebted to the Banckrupt the Commissioners of the said Commission did assign over the Debt of the Defendant mentioned in a certain schedule amounting to such a sum unto the Plaintiff in part of satisfaction of the Debt owing unto him by the Banckrupt by virtue whereof he demands the said Debt of the Defendant who did assume promise to pay the same and for not performing his promise he brings his Action the Defendant pleads non Assumpsit and thereupon an issue was joyned and a speciall verdict was found to the effect as the Plaintiff had declared but they further find that the Debts mentioned in the schedule and assigned over to the Plaintiff amounted to such a sum whereas they find that the Defendant did not owe unto the Banckrupt so much as that Debt assigned is but a lesse sum And upon this verdict the question was Verdict Issue Assignment whether the verdict did maintain the issue which was non Assumpsit if it did then they find for the Defendant if not then for the Plaintiff In the breaking of the Case it was moved whether the Assignment were good or no in regard that the Commissioners had mistaken the Debt for the Debt assigned by them was greater than the Debt found by the Iury and so might be another Debt But to this Roll Iustice said that the assignment was not judicially before them in question for if it were it would be judged an ill assignment but here it comes not in issue but only whether the Defendant did assume and promise or no and the speciall verdict concludes not upon the assignment but whether the speciall matter found do maintain the issue or no therfore he was of opinion that the Plaintiff ought to have his Iudgment Bacon Iustice differed in opinion said that it is dangerous for Commissioners of Bankrupt to assign Debts particularly Commissioners The rule then was to argue it the next Term At which time Ward of Councel for the Defendant argued that the verdict was for the Defendant for this reason viz. Because the Debt laid in the Declaration and the Debt found by the verdict are not the same and so the Defendant did not assume and promise that which is laid in the Declaration for there is no such Debt found and if he should be charged with that he might be doubly charged Averment for he may be again charged for the debt found by the verdict and circumstances of quantity time and place are averred in a Declaration to make things certain and if they fall the Declaration is not good 18 E. 3. fol. 25. 1. rep 74. Palmers Case 2ly The Declaration is insufficient for it expresseth not what the sum is but saith a sum mentioned in a schedule of Debts which is incertain Roll Iustice interrupted Ward and said all that you have argued is out of dores but the last matter touching the Declaration and to that Hales of Councell with the Plaintiff said the Declaration is good and certain enough for there appears no other sum in the schedule than is mentioned in the Declaration Bacon Iustice The
and the Crown hath not granted this away 37 H. 8. and so not destroyed them Donatives usually passe as lay fees and the passing of them as lay fees alters not the nature of the Chapells and the Statute gives it to the King as the incumbent had it Lay fee. and there is a saving of the nature of it in the Statute It is objected that he hath not been presented ratione lapsus To this Hob. 337. in Greens Case gives an answer and Potters Case 9 Car. in the Common pleas and it is well found here in the verdict for the Plaintiff That it is not within the Statute Brown for the Defendant in his argument said the question is whether it be a free Chapel given by the Statute of 1 Ed. 6. and 1. It is within the words of the Statute and 2ly It is within the meaning of the Statute for the words they are simplicitur generalia and so large as can be and all Chapels are given by them and none excepted And here 1. The nature of a free Chapell is to be considered For Cowel he is not fit to be cited Cowelâ— Book for his book was condemned by Parliament and burnt as erroneous Divers sorts of Chapels and scandalous in 4 E. 3.28 Peeter Corbets Case a Chapel is part of a Church 8 H. 6.32.37 Bracton 241.17 Ed. 3.58.9 Ed. 3.11 these are not within the Statute of 1 Ed. 6. 2ly There is Capella parochialis which is subject to the jurisdiction of the Ordinary 14 E. 3. Fitz. quare impedit 183. Lynwood 142.8 Ed. 3 60. The book of entryes 542. Long quinto 26. 3ly A Chauntry is taken for a Chapel 4ly A free Chapel is nomen comprehensivum and comprehends much 13 Ass pl. 2.15 Ass pl. 8. The essential matter of a free Chapel is to be free from ordinary jurisdiction and not to be visited by the Ordinary and one comes regularly to a free Chapel by donation but being in he is free from ordinary jurisdiction 18 E. 3. Fitz. scire sac 11.17 E. 3. f. 45. Brook praemun 21. It hath been obiected that it is presentative and so it is not free I answer it may be free though it be presentative and so the verdict finds it to be in the foundation of it 2ly The Plaintiff brings the Action as Rector of a free Chapel and now he shall not be suffered to deny his own Declaration 3ly The admission institution and induction implyes jurisdiction till the contrary appear viz. that it is a free Chapel notwithstanding it be presentative 16 E. 3. Fitz. brief 660. None but the King can found a free Chapel and although it be free by prescription Foundation yet it shall be intended to be at first so founded Institut 44.9 H. 6. f. 17.20 E. 3.56 The King by foundation of a free Chapel may grant that it shall be presentative and yet when the party is in that it shall be free from the jurisdiction of the Ordinary Fitz. nat â—r 48. C. Iurisdiction The dean of Battel in Sussex is presentative to the Vicarage of Battel by the Bishop of Chichester but when he is in he is free from the jurisdiction of the Ordinary Davyes Rep. fo 72. Cooks instit 344. A lapse may incur of a free Chapel by the foundation of a thing may alter the law 7 E. 3. fo 18. The old book 316. The essential difference of a free Chapel from another is to be free and exempt from the jurisdiction of the Ordinary 17 E. 3. close roll in the Tower Seldens book of tithes 441. regist 40 41. Pasc 3. Jac. in this Court Fachell and Gaires Case There are divers writs in our books to discharge free Chapels from visitations and therefore it appears they are exempt from the Ordinaries jurisdiction But it is objected that the presentation makes it presentative though it were not so before This is answered 14 E. Fitz. 9 E. 3 â—â— 27 E. 3.34 It is not the presentation made by the party but the foundation that makes it presentative 2ly It is objected that it is parochial and therefore is not free I answer it is not so found although it be so claimed and though it be so claimed it makes nothing to the purpose The parish Church of St. Maryes in Shrewsbury was parochial and yet given to the King by this Statute 13 H. 4. Fitz. brev 807. Hil. 17. Iac. in this Court in Grubbam and Gales Case adjudged that a Chapel may be founded in a parish Church and such are given to the King Dyer 267. o Car. Pasc in the Common pleas Rawlins and Yaxlyes Case 2ly For the words of the Statute this is not one of the free Chapels excepted in the Statute and therefore it is within the Statute and there appears no visitation in the verdict found and exceptio in non exceptis format regulam For the meaning of the Stat. Interpretation Brook prebend 2 d. 10. rep 128. All parts of a Statute ought to stand together if it may be and one part of it ought not to destroy another part generale dictum generaliter est intelligendum The exceptions of the Statute shew the meaning of it It is objected that the being a free Chapel makes it not to be superstitious I answer if it be a free Chapel by Common intendment it is superstitious but though if it be not yet it is given by the name of a free Chapel By the verdict it was taken for a free Chapel and that it was seised into the Kings hands There is much light to be had in interpretation of laws by consulting with those that made them and to know how they had interpreted them for expositio contemporanea est optima Plow 466. Pasc 35 El. Clark and Mark in the Common pleas If it be not a free Chapel yet being found so it shall be taken to be so in reputation Reputation and enough to give it to the Crown And the presentation to it is ad rectoriam sive liberam capellam and so not certain and so it is not a good presentation Presentation because the King was not rightly enformed what it was he presented to Regist fol. 203. 19 E. 3 Fitz. quar imped 360. and so prayes Iudgement for the Plaintiff Roll Iustice There is a difference where a Chapell is founded within a Church and where the Chapel is Parochial Bacon Iustice held that it was given to the King by the Statute for it is found to be a Chapel paying tenthes and this Statute looks backward to the Statute of 37 H. 8. and to things in being and the Chapel was within that Statute and by it he might have seised it and it is within the words and intent also of the Statute of 1 Ed. 6. and the proviso of the Statute shews the meaning of it and Capellae dependentes or Chapels of ease are not given by the Statute Roll Iustice to the same effect and said
thereof the Defendant brings a writ of Error the question was whether the writ of Error were well brought in regard that the course of the Common pleas is not to make up the Iudgment untill the writ of enquiry be retorned Roll Iustice said that a writ of Error may be brought before the writ of enquiry be retorned in an ejectione firmae for in that Action the Iudgement is compleat at the Common Law before it be retorned Iudgement Error for the Iudgement is but to gain possession and so is it in a writ of Dower but in an Action of Trespasse where damages only are to be recovered there the Iudgement is not perfect till the writ of enquiry is retorned nor can be made up before as in this case it may but in regard that here is no compleat Iudgement entred for there is no capias which ought to be in all Actions quare vi et armis that the King may have his fine which else he cannot have if the party do not procéed in his Writ of Enquiry Error Execution the Writ of Error is brought too soon and you may proceed to execution in the Common-pleas for the compleat Record is not here Therefore advise what to do in the Common-pleas for it is mischievous qua cunque via Norton against Trin. 24 Car. Banc. Reg. NOrton brought an Action of Assault and Battery against the Defendant Arrest of Iudgement in Assault and Battery Mis-sworn and had a verdict against him The Defendant moved in arrest of Iudgement that in the Venire facias one of the Iurors was retorned by the name of Edmund and it appears by the Postea that he was sworn by the name of Edward which cannot be intended to be the same person Roll Iâ—stice said Amendment if the Clerk of the Assises in returning of the Postea have mistaken the name it may be amended here in Court by his notes by which he made the Postea and therefore let him be examined here whether it be a mistake or no. Toby against Angel Trin. 24 Car. Banc Reg. THe Court was moved for a reference in this Cause to the Secondary because the sute was commenced upon two Counter-bonds For a reference which are both cancelled Roll Iustice answered then why should it be referred for you may plead non damnificatus if the truth of the matter be so but the party may peradventure be damnified notwithstanding the Bonds be cancelled and may have good cause of Action Langly against Wybord Trin. 24 Car. Banc. Reg. LAngly brought an Action of Debt upon an Obligation to stand to an Award against Wybord Demurrer to a Replication in Debt upon an Obligation to stand to an Award Award The Defendant pleads nullum Arbitrium The Plaintiff replies that the Arbitrators did make an Award and sets it forth in haec verba The Defendant demurs and shews for cause that the Award is not well set forth for he doth not shew that the Award was delivered up by the Arbitrators according to the submission Roll Iustice answered it was well enough though it be not A second cause was that it is not said touching what sutes the Award was made Roll Justice answered the Award is said to be de praemissis and that is good enough 3ly The Award is that all sutes shall cease Roll Iustice This is well enough 4ly The Arbitrators have exceeded their submission The rule was to bring the Roll into Court and till then the former rule to stand Afterwards the Award was judged good and the Plaintiff had his Iudgement Trin. 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an Inferiour Court Error to reverse a judgement in an Inferiour Court and the Error assigned was That the plaint was entred before such an one Maioâ— and the sute was continued before another Maior and it is not shewn that the first Maior was removed and that the other Maior was lawfully elected and sworn Roll Iustice said that the Continuances in Inferiour Courts ought to shew the manner of the Continuances Continuance and it ought not to be expressed generally And it is not said tunc majori Tryal which would have made it more incertain I doubt the Venire facias is discontinued and then there is no Tryal therefore it is good to advise Pragnell against Goff 24 Car. Banc. Reg. GOff brings an Action upon an Assumpsit against Pragnell Error upon a Iudgement in an Action upon an Assumpsit and hath a verdict and a Iudgement against him The Defendant brings a Writ of Error to reverse this Iudgement The Case was this Pragnell did assume and promise unto Goff that in consideration that Goff would mary the Daughter of Pragnell that he would be bound to give over his Shop unto him and not use his Trade in Basingstoke and would lend unto him fifty pound and for not performing this promise he had his Iudgement The Error assigned was that there is a breach â—aid of all the promise Assumpsit which consists of divers parts and one part of it is against Law namely the Promise to be bound not to use his Trade and yet dammages are given entirely for all which is not good Wild on Councel on the other side said that in 2 H. 5. urged is no Iudgement given and in our Case it is not that he shall be bound not to use his Trade generally but only in the Town of Basingstoke and he may use it any where else and therefore it is not against Law Roll Iustice If the words be general that he shall not use his Trade in such a place without any consideration this is ill but it is otherwise if there be a consideration for a man may sell his Liberty Privilege for a Consideration and it shall bind him The rule was to shew cause Saturday next why Iudgement should not be affirmed This was afterwards moved objected Dammages that part of the Assumpsit was to turn over the Defendants Trade and dammages given for that which is impossible Roll Iustice said if dammages entire be given for some things with others wherof some are impossible the dammages shall be deemed to be given for those that are possible and void to the rest The Iudgement was affirmed Peeling against Ken. Trin. 24 Car. Banc. Reg. Pasc 24 Car. rot 89. PEeling brought an Action of Debt upon an Obligation to stand to an Award against Ken. The Defendant pleads Nullum Arbitrium Demurrer to a Replication in Debt upon on obligation to stand to an award The Plaintiff replies and sets forth the Award in haee verba and assigns a breach The Defendant demurs to the Replication and the Plaintiff joyns in the Demurrer The causes assigned for the Demurer were 1. To the Award it self Award which is that whereas it appears that there was six pound and a shilling due by the Plaintiff
part of the Defendant To be discharged upon Common Bail that the Plaintif had declared upon an obligation with a condition but had not set it forth in the Declaration and therefore desired that he may either have Oyer of it or else that the Declaration being imperfect so that he cannot plead and he being now in prison may otherwise be set at large Roll Iustice We cannot compell the Plaintiff to set forth the condition of the Obligation but till he doth the Defendant shall not be compelled to plead Plea and let the Plaintiff shew cause upon not ice given to him why the Defendant shall not goe at large upon Common bail It was moved again Common Bail and then Roll Iustice said If you arrest one and doe not proceed in three Terms he ought to goe out upon Common Bail But move it again to morrow Trin. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment upon the Statute of 5 Eliz. To quash an endictment of perjury against perjury The exceptions taken against it were 1. The Endictment saith the Oath was taken before Baron Atkins and Serjeant Turner but it doth not say where viz. whether it were at the Sessions or Assizes 2ly It saith the Oath was taken Coram Iusticiariis Domini Regis but it doth not express what Iustices they were The Endictment was quashed for the first Exception The King against Bellingham Trin 24 Car. Banc. Reg. BEllingham was indicted upon the Statute of 5 Eliz. For moderation of a sine upon conviction for perjury against perjury and pleaded Not Guilty and was found Guilty The Case was this Bellingham had a Process delivered him out of the Court of Wards to serve upon one which he did accordingly and upon the return thereof he made Oath that he served the Process upon the party the 8th day of the Month whereas it was the 9th day but it appeared upon examination of the matter that the Oath was not taken malitiously but only rashly and upon this the Court was moved to set a moderate fine Fine Roll Iustice said because it was so therefore let the fine be but 10 l. Gallop against Chase Trin. 24. Car. Banc. Reg. Pasch 24. Car. rot 250. THe Case of Chase and Gallop was again moved Error to reverse a judgement in Trover and Conversion which was this Chase brought an action of Trover and Conversion in the Common Pleas against Gallop and his wife and a Stranger and declares that the Baron and Feme and the stranger converterunt ad usum suum proprium The Plaintif had a Verdict and Iudgement The Defendant brings a Writ of Error to reverse this Iudgement and assigns for Error that the Declaration is not good for it declares of a Conversion made by the Feme to her own use which cannot be she being a Feme Covert Roll Iustice said The Declaration doth intend that all the Defendants did convert the goods Declaration Feme Covert Conversion which cannot be for the Feme cannot convert them and cited Crow and Bakers case 1 Caroli 7 H. 7. f. 3. Therefore let the Iudgement be reversed Trin. 24. Car. Banc. reg THe Court was moved for a Certiorari to remove an Order of Sessions made for the electing of one to be a Constable For a Certiorari that the Order may be confirmed here and the Constable compelled to be sworn Roll Iustice answered That by granting it the execution of Iustice by the Iustices in the Country will be hindred therefore appeal to the Iustices of Assize for we will not grant a Certiorari Vpon this a writ was prayed out of this Court to compell the Constable to be sworn which was granted Mandamus Trin. 24 Car. Banc. Reg. A Iudgement was given in the Common Pleas in an ejectione firmae quod recuperet writ of Enquiry taken out Whether a Writ of Error good but before it was executed and retorned the Defendant brought a writ of Error and the question was whether the writ of Error lay or no. Turner of Councel with the Defendant in the writ of Error argued that it did not lie because the Original writ was not determined when the writ of Error was brought and so the Iudgement was not perfect or compleat and consequently a writ of Error could not be brought to reverse it and that the writ is not determined nor the Iudgement prefect is proved because the Action being an ejectione firmae here is no costs and damages found nor is there any habere faciaâ— possessionem retorned which are the fruits of the judgement and and he cited 34 H. 8. f. 18. 39 H. 8. Fitz. Error 40. 36 37 Eliz. in the Common Pleas Year and Peverells Case 6 Car. Banc. Reg. But Roll Iustice said here is ideo consideratum est quod recuperet Judgement which is a perfect Iudgement but it had not been so if the Iudgement had been quod recuperare debeat and it is in your power whether you will have a writ of enquiry or not and if he judgement be affirmed here upon the writ of Error brought you may have a writ of enquiry here in this Court Brev. d'enquiry The Councel thereupon moved for a Certiorari Roll Iustice Take it but it will doe you no good for the judgement is well Stent against Trin. 24 Car. Banc. Reg. STent brought an Action upon the case for speaking these scandalous words of him Arrest of Judgement in an Action for scandalous words Thou art a pick pocket Rogue and hast picked thy masters pocket and his Money-box and I will prove it The Plaintif had a Verdict The Defendant moved in arrest of judgement that the words are not actionable for that they are too general and uncertain The Iudgement was arrested till the Plaintif should move Trin. 24. Car. Banc. Reg. A Certiorari was granted out of this Court to removed certain endictments of forcible entries For a Supersedeâ—s to a Certiorari whereas in truth there were no Endictments of forcible entry found against the party upon this a Supersedeas was prayed to supersede the Certiorari Roll Iustice This Certiorari was gotten by way of pervention for what might be done Procedendo but take a Procedendoto the Justices to proceed notwithstanding the Certiorari Trin. 24. Car. Banc. Reg. A Scire facias was taken out to revive a judgement For the Defendant to plead in chief after imparlance and to have execution The Defendant appears and imparls and after imparlance pleads in abatement of the Scire facias that the Plaintif had taken out a former Scire facias for the same cause which is yet depending It was moved for the Plaintif that the Defendant ought not to plead this plea in abatement after imparlance but that he ought to plead in chief Roll Iustice Let him plead such a plea as he will abide by within a week
there is no issue joyned and therefore there can be no Iudgement and it is a direct Ieofail and it is not helped by the Verdict for it is no tryal and not a mistryal which a verdict may help If there be two or three things in a Declaration upon which an issue may be joyned if an issue be joyned upon any of them it is well but here is no issue joyned at all for the replication doth no more but affirm the wrong done as the Count did Therefore consider how you can help it Postea Mich. 24 Car. Banc. Reg. VPon the reading of a retorn of a Writ of privilege granted for one to be restored to the place of an Alderman of the Town of Stafford Exceptions to a Retorn of a VVrit of Privilege Hales took these exceptions to the retorn 1. that one cause shewed for the disfranchising the party was that he had done contrary to his oath Disfranchisement which he said was no sufficient cause for the dis-franchising of the party for their Letters patents do not warrant it A second cause returned is for that he did not make an accompt of such monies as he had received for the use of the City and this concerns not the party as an Alderman and therefore his misdemeanour in that office can be no cause to put him from his place of Alderman 3ly It is retorned for cause that he did mis-behave himself in his place whilst he was Maior of the City and this as the former is no cause to put him from his Aldermans place A fourth cause returned is for speaking contemptuous words against the Maior and Aldermen viz. Knock your heads together till I come which words cannot be so contemptuons as to be put out of his place for them Retorn for they are not so much as actionable 5ly He held that if any of these causes singly or all of them together were sufficient to dis-franchise him yet they have not shewed that they have lawfully removed him for it appears not that he was summoned to answer any of the things objected against him neither doth it apyear that he was dis-franchised by those that ought to have done it The retorn was ordered to be filed and time given to answer these exceptions till the next Term. Mich. 24 Car. Banc. Reg. VPon an Affidavit read For a Procedendo that the cause was removed hither by the Plaintif The Defendant moves for a Procedendo that the Court may proceed where the Plaintif first brought his Action But the Court answered that the Plaintif may remove his cause hither by Certiorari and upon the retorn of the Certiorari the Defendant ought to tender bayl and if the Plaintif will not accept of it a Procedendo may be granted Wood against Clement Mich. 24 Car. Banc. Reg. THe Case of VVood and Clement formerly spoken unto Arguments of Councel and the Iudges opinionstrouching an Award was again moved and spoken to first by Twisden who argued that the Award set forth is void for two reasons 1. Because it is not final for it awards one to pay mony to I. S. to the use of another without his consent and this cannot determine the matter in controversie but doth beget sutes 2ly It is against reason that the mony due to the Mariners should be payd to any but the Mariners themselves and this is not submitted and if it were yet it is ill for the Mariners include not the Master Maynard held that the Award was void to this clause and so there is no breach assigned and consequently there can be no Iudgement given although some other part of the Award be good and here is nothing awarded concerning Iohn Acland who is one of the parties that submitted to the Arbitration and so as to the mony he hath no satisfaction by the Award 2 Rich. 3. f. â—â— Hill moved that the Arbitrators have made an Award touching a thing not submitted for the differences submitted are touching the Ship called the Salvadore and they have made an Award touching the Ship and the proceed thereof Hales on the other side held that Iohn Acland is not party to the submission no more than the Mariners and that the other parties have submitted by him 2ly He said there is something awarded for Iohn Ackland for he is comprised within the Mariners and so he hath satisfaction and if he be not included then it appears not that there is any difference touching him to be arbitrated and here is a joynt trust for all and one may take upon him for all and make a discharge for all Roll chief Iustice said the Mariners and owners of the Ship are all parties to the submission but the Plaintif and Defendant in this action are only bound to perform the Award for they only entred into bond to do it And the Master of the Ship is the chief Mariner Award and he comes in in this notion and so the Award concerns him 7 E. 4. f. 14. And if the party have power by the Award either in Law or Equity to compell the other to perform it the Award is good though the party be put to his Action to get it performed Bacon Iustice agreed with Roll and held Iudgement ought to be given for the Plaintif for that all the parties are included within the submission although but some of them only are bound to perform the Award and he said that the Master of the Ship is a Mariner Ierman Iustice said he would advise because it was a great cause but he enclined that judgement was to be given for the Plaintif because the Award seemed upon the pleading to be good Brown Iustice was of the same opinion and said that the Master was a Mariner and that there is a trust between all the parties and a good remedy for them all by the Award Whereupon the rule was that the Plaintif should have Iudgement except better matter were shewn Monday next Mich. 24 Car. Banc. Reg. THe Plaintif brought an Action upon the Case upon a promise The Defendant pleaded non Assumpsit Arrest of judgement in an action up on the Case upon a promise and thereupon an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgment and took exception to the setting forth of the promise which was this that the Defendant upon a consideration moving from the Plaintif did assume and promise unto the Plaintif to pay a certain sum of mony cuidam Fountain and leaves out his name of baptism and so it is incertain who the mony should be paid unto or whether it he now paid or no and consequently whether there be any cause of Action and so there can be no Iudgement But Roll cheif Iustice answered Assumpsit the Assumpsit was grounded upon a consideration past and peradventure the Plaintif may not know the parties Christian-name to whom the mony is to be paid though
both the Plaintif and Defendant know the person of the man well enough Therefore let the Plaintif have his Iudgement Frank against Dixon Mich. 24 Car. Banc. Reg. FRank brought an Action of Trespass against Dixon for entring into his House and breaking open his Chest and taking away his Goods Arrest of Iudgement in an action of Trespass The Defendant pleaded a special Plea viz. that he did it by way of a distress for rent due unto him The Plaintif replyed de injuria sua propria absque tali causa upon this an Issue was joyned and a verdict found for the Plaintif It was moved at amicus Curiae that no Iudgement could be here given for Costs for the Plaintif because the Plaintif had made no title to the Goods Costs and these Cases were cited 44 Eliz. Trin. 7 Iac. Frith and Blackmans Case and 5 Car. Davis and Evans But Roll chief Iustice answered that he wondered why any body should so move for it is against the known practice of the Court and said that he must pay Costs otherwise there shall be vexation without amends Therefore let the Plaintif take his judgement Tyson Mich. 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an Action of Trespass and exception was taken to the Writ of Error Error to reverse a judgement in Trespass in that it was not brought by the same person against whom the judgement was given for the judgement was given against Evison with the addition of Gentleman and the Writ of Error is brought by Ivison Yeoman Addition Roll chief Iustice answered that Evison and Ivison sounded but as one and the same name and for the additions of Yeoman and Gentleman it is not material though they differ here but if it were the addition of Knight or Baronet there the difference would be something for that is made part of the name but the additions of Yeoman or Gentleman are additions ad placitum Cutsworth Mich. 24 Car. Banc. Reg. THe Plaintif declares against two Defendants against one of them Error to reverse a judgement in assault and battery for an Assault and Battery and against the other for taking away his Goods and upon not guilty pleaded the Plaintif had a verdict and a judgement against them both joyntly for dammages and this was assigned for error to reverse the Iudgement Roll chief Iustice said the Writ cannot be helped for the two Defendants cannot be joyned in one Action Ioyn in action because the Trespasses are of several natures and against several persons and the parties cannot plead to this Declaration Therefore the Plaintif nil capiat per billam Mich. 24 Car. Banc. Reg. THe Court was moved to quash an order of Sessions made To quash an order of Sessions that one should keep his reputed Child because he had kept him heretofore and it doth not shew either that he is his Bastard or his lawfully begotten Child The order was quashed because not made according to the Statute Mich. 24 Car. Banc. Reg. A Writ of Error was brought to reverse a judgement given in the Court at Exeter in an Action of Debt for rent Error to reverse a judgment in Debt The errors assigned were 1. That the names of the Iurors were not retorned upon the panel To this Roll chief Iustice answered it is not necessary to retorn their names though it was the old way to do so Retorn A second exception was that the Writ of Error is not well retorned for it is directed to the Maior and Bailifs of the City of Exeter and it is retorned by the Maior and two of the Baylifs whereas it should be by all of them Adjourned to the next Term. Mich. 24 Car. Banc. Reg. A Retorn of an order of Iustices of peace To quash an order of Iustices of the peace for keeping a Bastard-Child removed hither by a Certiorari was read and upon the reading the Court was moved to quash the order upon these exceptions 1. It doth not appear the order was made by two Iustices of the peace wherof one was of the quorum 2ly It doth not appear that the Iustices did inhabit near the place 3ly The order doth not direct how long the party shall keep the Child as the Statute doth direct it should The order was quashed upon the last exception The King against Humphryes Mich. 24 Car. Banc. Reg. THe Court was moved to quash an order of Sessions made at Derby for Parents to relieve their poor Children To quash an order of Sessions Deputation The exception taken was that the Statute appoints that the Iustices in the Sessions shall set the rate that is to be paid for their maintenance and that the Iustices here have not done but have transferred their authority over to other Iustices to do it which they cannot do and so the order made by the other Iustices is not good The Court said this is all one as if an Arbitrator should arbitrate another to make the arbitrement which is not good Therefore let the order be quashed The King against Golding Mich. 24 Car. Banc. Reg. THe Defendant shewed for cause why restitution should not be awarded against him upon an Endictment of forcible entry Cause why no restitution upon an Endictment of forcible entry That he will appear and plead to the Endictment Rull chief Iustice answered Then you must go to tryal the next Term and at your own charges Mich. 24. Car. Banc. Reg. VPon view of the Parliament Roll of the Statute of 2. Ed. 6. for payment of tithes Parliament Roll brought in court to examine a Declaration by Recital Parliament Roll. Iournal Book and comparing it with the Declarations in the causes betwéen Bowes and Broadhead and Burraston and Herbert it was found that the Statute was rightly recited notwithstanding what had béen objected and the Iournal Book of Parliament produced to the contrary and thereupon Iudgement was given in both cases and the Court said that they were to be ruled by the Parliament Roll and not the Iournal book And the same day in the Case between Bowyer and Tantulyar for the same reason the Court ordered the Parliament Roll to be brought in Court the next term to make it appear whether an adjournment of Parliament was well recited and would not credit the Iournal book Mich. 24 Car. Banc. Reg. PHillips moved the Court to quash an Endictment To quash an Endictment for Assault and Battery for an Assault and Battery made upon Baron and Feme and for pulling down of the house of the Baron and he took these exceptions 1. That the Endictment did conclude ad damnum ipsorum whereas it should be ad damnum of the Baron only But the Court answered that the Endictment is good though the words ad damnum ipsorum be left out A second Exception was that the Endictment doth not shew the time and place when the Assault
for cause shews 1. That the breach of this promise was in the Testators life time and therefore the Action should have béen brought against him and is not now to be brought against the Executor 2ly The Testator did not promise that his Executors should deliver the goods but that he would deliver them upon request Request and there appears no request to be made to the Testator as there ought to have been 15 Iac. Hob. rep f. 300. Bodwells Case But Roll chief Iustice answered Executor That an Executor may be charged upon a collateral promise if there were a breach of it in the Testators life time and here is a good request and goes to all Therefore let the Plaintif take his judgement except better matter be shewed to the contrary and Osborne Mich. 1649. 1 Reipub. Ang. Banc. super THe Plaintif brought an Action upon the Case upon two several promises the Defendant pleaded non assumpsit Arrest of Iudgement in an Action upon the case Issue and upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of iudgement and for cause shews that there is no issue joyned as to the second promise alleged for he doth not conclude with petit quod inquitatur per patriam and yet there is a verdict found upon both the promises The Iudgement was arrested till the other should move Mich. 1649. Banc. super VPon a special Verdict the case was this A Case upon a special verdict argued Tenant for life the remainder for life the remainder in tayl the remainder to the right heirs of him in the remainder for life the remainder man in tayl levies a fine in the life of tenant for life And the question was whether by the levying of this fine the estate tayl were discontinued or no. To prove that the estate tayl was discontinued these Books were cited 1 H 7.22 Lit. Cap. Discents Sect. 34.14 Ed 3. Fitz. Avâ—wry 117.3 Ed 3. Fitz. grants 60.15 Ed. 4 9.2 Rep. Butlers case 5. Cooks Lit. f. 25. Pasch 13 Car. Hungates Case Banc. Reg. Dyer 339. Twisden to the contrary argued that the estate is not altered neither to the right nor by way of Estople 46 Edward 3. f. 23. Estople An Estople supposeth a thing to be done and therefore if the thing be impossible which is alleged by way of estople it can be no estople And one shall not be construed to doe wrong by an Act which may be interpreted so that by it he may doe no wrong Brooks Abridgement Grants 49. Roll chief Iustice The matter here is not how the estates shall pass and how to make them good but the Question is upon the forfeiture Forfeiture for he levies the fine as of an estate in possession and not of a reversion in fée and this is not upon the rule in Bredons case 13 Car. Sir Julius Caesars case an Acceptance of an estate or an Attornment by Tenant for life to a stranger is a forfeiture Jerman Iustice held there was no forfeiture But the Court said the Verdict was ill sound and therefore ordered it should be amended that the whole matter in Law might come in question Amendment Gray against Walye Mich. 1649. Banc. sup VVAlye brought an Action upon the Case against Gray Arrest of judgement in an Action upon the case for speaking these words of him viz. Iack Walye was questioned for stealing of a gray Mare with a snip in her ear and hue and cry went out after him and he durst not shew his face hereabouts The Plaintif had a Verdict and the Defendant moved in Arrest of Iudgement that the words were not actionable because they were general and uncertain words and it doth not appear the party was damnified by them nor how long ago they were spoken Roll chief Iustice said that the party was defamed by speaking of them and he hath laid it that he lost his Credit thereby Therefore let the Plaintif have his Iudgement except better matter be shewn But Nicholas Iustice doubted whether they were actionable or no. And Ask Instice nihil dixit Mich. 1649. Banc. sup AN Attorney of this Court that was within age Error against at Attorney in Court for appearing propria persona being within age Error in fact appeared to an Action propria persona and pleaded to issue and had a verdict and a judgment for him and upon this a writ of Error was brought here it being an error in fact because that being within age did not appear per guardianum nor by his Attorney and it was said that it is not helped by the Statute of Ieofails though it be after verdict And thereupon the Court stayed the Execution Mercer against Rule Mich. 1649. Banc. sup THe Court was moved For a Supersedeas attachment for taking out execution after a writ of Error brought and allowed Supersedeas Attachment Execution That a writ of Error was brought to reverse a Iudgement and that it was received and allowed and notwithstanding the Plaintif that had the Iudgement had taken out execution and thereupon it was prayed for a supersedeas to supersede the execution and for an Attachment against the party for his contempt to the Court. And it was urged by the Councel that moved That after a writ of Error is received and allowed the hands of the Court that gave the Iudgement are foreclosed from granting out execution and that the writ of Error is in it self a Supersedeas and cited Dyer 283. and therefore concluded that the execution is not well issued forth Twisden of Councel on the other side said that the writ of Error was not duly pursued because the roll was not marked and therefore the party might well take out execution But Roll chief Iustice answered that the writ was well pursued though the roll were not marked Yet if neither the roll be marked Notice nor notice given to the Attorney on the other side of the bringing the writ of Error if the party procéed to take out execution it is no contempt to the Court otherwise it is a contempt Contempt Supersedeas And it is the duty of the Clerk of the Errors to mark the roll and not the Attorneys and therefore take a Supersedeas quia improvide emanavit to stop execution Pym against Morgan alias Bambery and Baselye Mich. 1649. Banc. sup Hill 24 Car. rot 1062. IN an Ejectione firmae brought for the Mannor of Caledown Argument upon a special verdict in an Ejectione firmae The Defendant pleads Not guilty and upon this the Iury find a special verdict to this effect That Sir Thomas Morgan was seised in fée amongst other lands of the lands in question and that in 13 Car. he made a settlement of these lands to himself for life the remainder to his daughter Mary for life the remainder to the heirs of the first Tenant for life with a power of revocation
case for the Riot is found upon the view View Record and so there néeds no enquiry and the Record ought to be made up by the two Iustices that had the view and by the Sherif and it is not made by them as Iustices but as Iudges joyned with the Sherif by the Statute Iustices that find a Riot may either bring in the Record in Court propriis manibus of their own accord or may send it into Court as they have done here The prisoners committed upon the first Record read for there were two here read in Court were bailed but not discharged Discharge although the retorn was not good because the Court said it was not usual to discharge prisoners at the first reading of the retorn For the other prisoners The Court advised Bendir against Oyle Mich. 1649. Banc. sup For a Prohibition to the Court of Pollicy of assurance A Prohibition was prayed to the Court of the Commissioners of pollicy for assurance upon a surmise that they proceeded there in the tryal of the Assurance of a mans life which was said to be tryable at the Common law as it was before the Statute made that erected that Court Assurance as may appear by the preamble of the Statute Roll chief Iustice said that the Assurance of the life of a man is not within the Statute of Assurance as the Assurance of a mans life upon the buying of an office but this case is different for the man whose life is here assured is going to sea upon Merchants affairs and his life may be as well assured as the safe return of the ship he goes in But let Councel be heard on both sides Wednesday next but wee will stay nothing in the interim Postea Mich. 1649. Banc. super AN Information was exhibited against the Inhabitants of the Town of Burmingham for not repairing Burmingham-bridge To amend a Record after verdict two of the Defendants plead to issue and a verdict was found for them in paiis It was moved for the Defendants that Mr. Attorney General had mistaken the Christian name of one of the Defendants in his replication and prayed that the Record might be amended before Iudgement entred Amendment that the Iudgement may not be erronious by reason of this mistake The Court answered Bring a Copy of the Record to us to advise upon Issue but they said they did not see how it could be amended for that they conceived there was no issue joyned Hobbs against Blanchard Mich. 1649. Banc. sup Pasch 20 Car. rot 220. BLanchard brought an action of Trespas in the Court at Norwitch against Hobbs and had a verdict and a judgement Error to reverse a judgement in trespass The Defendant brought a writ of Error to reverse the judgement The error assigned was that the Iury had not found the issue joyned for the issue joyned is de injuria sua propria absque tali causa and the Iury have found not guilty generally Panel of Councel with the Defendant in the writ of Error said that the Iury have found the effect of the issue though they have not found the very words and therefore it is good enough and he cited Fabian Kingstons case 32 Eliz. and Wingrave Homes his case 3 Car. entred 2 Car. rot 632. Roll chief Iustice answered That the verdict found the issue argumentatively only and not directly and therefore it is not good Verdict Ierman Iustice was of the same opinion and the Iudgement was reversed except better cause shewn Carew against Bawd Mich. 1649. Banc. sup Trin. 24 Car. rot 1607. CArew brought an Action of trespas against Bawd for entring into his ground and taking away a certain parcel of Tynn Demurrer to a plea of privilege of Parl. in an action of trespass The Defendant pleaded that he was servant unto the Lord Moone who was a Lord of the Parliament and that he took the Tynn by his Command and claims his privilege as his servant not to be impleaded to this plea the Plaintif demurrs and for cause shews that the Defendant doth not shew that he was the Lord Moons menial servant Privilege and attending upon his person and it may be he was his Carter or Plowman and such servants are not privileged Roll chief Iustice said The privilege is not claimed here méerly as his servant but he justifies here as his servant in defence of his Masters title to the Tynn Waiver which he took by his command But let the Defendant plead in Chief and let the Plaintif waive the Demurrer Or else let the Plaintif enter his suggestion upon the roll that the House of Lords is now dissolved and so let them take issue and go to tryal Or else let the party plead what he will upon record and we will advise in the mean time Paroch de Hardingham versus Paroch de Brisley Mich. 1649. Banc. sup AN order of Sessions made for the setling of a poor woman in the parish of Hardingham was returned hither by a Certiorari granted to the said parish For quashing an Order of Sessions for the setling of a Vagrant and upon the return read and opening the matter by Councel the case was this An inhabitant dwelling within the parish of Brisley did hire a maid servant for a year and Covenanted to give her Forty shillings for her wages and entertained her into his service The maid servant some time after fell sick in his service her Master thereupon turns her out of his service without giving her any thing the maid for necessity in travelling from Brisley toward Hardingham where her friends lived and where she was born was forced to beg for relief whereupon she was sent as a Vagrant to Hardingham where she was born The Vill of Hardingham send her back to Brisley where she was entertained as a Covenant servant whereupon they of Brisley procure an order of Sessions to settle her at Hardingham The Question was Whether this were a good order or not for setling her at Hardingham according to the Statute Or whether she ought to be setled at Brisley where she was entertained as a Covenant servant and turned out of service and forced to begg by that means Roll chief Iustice said That here séems to be fraudulency in the Master to make his servant a Vagrant Vagrant that so he may be rid of her but if one begg meat and drink for necessity in passing betwéen one Town and another this is not begging to make one a beggar within the Statute And therefore the Court ordered that the party should be setled at Brisley Setlement where she was entertained for a Covenant servant and not at Hardingham where she was born if cause were not shewn to the contrary Harwood against Paty Mich. 1649. Banc. sup THe case betwéen Harwood and Patye was again spoken unto Argument in trespass whether Tithes be extendible by Wild of Councel
not from Morgan their Father It was answered that there is the same reason to provide for Morgans state that was rightly conveyed from him before the year 1641. as of a strangers so deriving from Morgan It is also objected that the Trustees for Pymm and the Common wealth shall have Morgans lands and they shall not be said to be forfeited It was answered that the Act distributes no more than is forfeited which can be no more than Morgan had at that time 2ly The Parliament took no notice that Morgan was seized in fee simple nor what estate he had 3ly After the estate of Mary Morgan ended the reversion in fee returns to Thomas Morgan so that Mary hath but a particular estate and the Ordinance may be satisfied though Mary Morgans estate be not forfeited for the reversion may be forfeited and the particular estate preserved as Cleres Case is and the saving is not here repugnant as it is objected nor destroyes the generality of the Ordinance for it is here satisfyed And the Parliament doth not take notice of the conveyance made by Thomas Morgan nor of any other estate than that he had at the time of the making of the Ordinance otherwise there would be a great inconvenience but it is objected that the Sons claiming under Thomas Morgan are excluded out of the saving It was answered that although they are yet they are not excluded out of the body of the Act Dyer 273 â— o Eliz and here the excepting of the interest of the Daughters in the saving hath its effect viz. the estate which they have of Thomas Morgan after 1641. which shall be given by the Ordinance and not that which they had before and so prayed judgement for the Plaintif viz. Mary Morgans lessee Maynard for the Defendant viz. Pymms heir said That the Act is the rule to measure our case by and that the Act doth take away the right of all the Children and that the saving helps none but strangers and notwithstanding the recompense reserved for Pymm if the estate shall be short it is intended of such an estate not within the saving and the estate of the Children is not within the saving and here is not a general gift but these lands particularly And in this case Morgan had power to revoke his settlement and so there is no breach made by the Ordinance of Common Iustice as is objected because he had an interest in the estate notwithstanding the settlement And all parts of the Act stand very well here together upon the best construction of it according to the makers intent If I grant all my trees fruit-trees will not pass but if I except all my Apple-trees all other fruit-trees pass and the inheritance in Morgan doth not satisfie the Act and so prayed Iudgement for the Defendant Roll chief Iustice said Mr. Maynard you mistake the first part of the Ordinance for do you think that the Ordinance looks further back than 1641. in other lands not expressed and he seemed to encline for the Plaintif but the other Iudges for the Defendant But the Court concluded that it was a great case and deserved great consideration and therefore ordered That it should be argued again the first Saturday the next Term. Mich. 1649. Banc. sup THe Court was moved upon an Assidavit for a Habeas Corpus for one committed for suspition of felony For a Habeas Corpus for one comitted for suspition of felony for uttering counterfeit money because the Iustices will not bail him Roll chief Iustice said It is dangerous to remove such a prisoner and there is a Commission of Oyer and Terminer to try such Offenders and we have no Copy of the Mittimus now but if you bring it we will make some rule in it Mittimus If the prisoner be bailable if the Iustice will not bail him Case bring your Action against him Coswell Mich. 1649. Banc. sup ONe Coswell outlawed moved to reverse the Outlawry upon these exceptions 1. Instead of proxim there is used px for an abbreviation of it To reverse an Outlawry Abbreviation without any dash 2ly Instead of Infra scr the abbreviation of infra scriptam there is used infra sr And for these exceptions it was quashed Dell and Brown Mich. 1649. Banc. sup IT was moved formerly to reverse a Iudgement in an Action of Trespass for the taking away of three Cowes because the Declaration doth not say neither pretii nor ad valentiam as to two of the Cowes Error upon â— Iudgement in Trespass Serjeant Earl moved for Iudgement notwithstanding that exception for he said it was not necessary to express either and urged 19 E. 2. br f. 842. and Pas 20 Ed. 3. f. 2.8 H. 6. reg 97. b. But Roll chief Iustice answered That which you urge is against the received opinion Declaration for if they he live Cattel that are taken it ought to be pretii but if dead it ought to be ad valentiam Therefore shew cause before the end of the Term why the Judgement should not be reversed Spry against Mill. Mich. 1649. Banc. sup Pasc 1649. rot 208. SPry brought a writ of Error to reverse a Iudgement given against him upon a nihil dicit in an Action of Trover and Conversion for a Mare in the Court at Lanceston in Cornewall Error to reverse a judgement upon a nihil dicit in a Trover and Conversion and these Errors were assigned 1. In the judgement it is said ideo ad eandum Curiam consideratum est whereas it ought to be per eandem Curiam 2ly It is recuperare debeat whereas it ought to be debet But Roll chief Iustice answered that is well enough in a judgement upon a nihil dicit 3ly In the awarding of the Venire it is praeceptum fuerit 4ly It is for the Iury to enquire in forma praedicta 5ly The Defendant is not demanded To this Roll chief Iustice said The Defendant did appear and so that is not material Judgement 6ly It is said Consideratum suit and it should be Consideratum est Roll chief Iustice said that was a good exception for the incertainty of the words Vpon this Error Prestwood the Councel on the other side moved that the Record is not removed Certiorari for the Certiorari to remove it was directed to the Maior and the Recorder and the Record is returned by the Maior and Deputy recorder Roll chief Iustice said It appears not to us that the Recorder hath power to make a Deputy Therefore advise upon it and so will we Postea Mich 1649. Banc. sup A Retorn made by an Officer of the Admiralty for one committed by their warrant was read To discharge a prisoner upon a return by an Officer of the Admiralty and it was prayed by Hales of Councel with the Prisoner that the retorn might be filed and the Prisoner discharged for these reasons 1. the party was committed for rescuing
himself and 2ly for a Contempt to the Court and because he would not find ball and it appears that the warrant for his commitment is not good for he is not committed for matter arising upon the Sea and so they have no Iurisdiction But the Court bid them proceed upon their prohibition Bail for they would not release the prisoner But if you will you may move it again Friday next Gilbert against Marden Mich. 1649. Banc. sup Trin. 1649. rot 942. A Writ of Error was brought to remove a judgement given in the Common pleas in an Action upon the case Vpon opening the record Error upon a judgement in the Common Pleas. Twisden took exception that the record was not removed for the Iudgement in the Common pleas was given Coram Petro Phesant and the writ of Error was to rectifie a record quod coram vobis reside The Court abated the writ of Error for this exception Abatement Smith against Andrews Mich. 1649. Banc. sup ANdrews an Attorney brought an Action upon the case against Smith Arrest of Judgement in an action on the case for speaking of these words against him He meaning the Plaintif stirrs up men to sutes and promiseth that if he recover not for them he will take no fees and yet in a sute which he so undertook for me wherein I was overthrown he took Charges of me Vpon not guilty pleaded there was a verdict and a judgement for the Plaintif The Defendant brought a writ of Error and for cause it was shewed by Maynard that there are entire damages given for divers words spoken at one time whereof some are Actionable and others not which ought not to be and 2ly The words in themselves are not actionable for an Attorney may stir up men to sutes if their sutes be lawful which Roll chief Iustice denyed 17 Car. Gibson and Baxter Maintenance And he said that an Attorney may prosecute his Clyents cause without seed and yet it is not maintenance Trin. 16 Car. Hill and Sands his Case Hales on the other side held that the words are Actionable for the words shall be taken in the worst sense and he also shews how he had stirred up sutes in an unlawful manner viz. by making of bargains with men at Markets Roll chief Iustice said that such words shall be taken mitiori sensu and this is a special maintenance for it is in the case of an Attorney and therefore lawfull but here are other words spoken to shew that he stirred up sutes unlawfully and the stirring up of sutes and making bargains to follow them is in it self unlawfull and great inconveniences doe grow by such manner of practising and all the words ought to be taken together and not dividedly for so you may make any words not actionable Ierman Iustice held the words were actionable because they are a great scandal and trenching to destroy the Plaintifs livelihood practice And said that Attorneys ought not to go to Markets to get practice the words spoken are to shew he is a stirrer up of sutes and to shew that he was a false dealer and the words shall be taken in the Common acception and not mitiori sensu Nicholas as Ierman and that the words taken together are actionable Ask Iustice to the same effect Whereupon Iudgement was affirmed except better matter should be shewn Monday next Johns against Leviston Mich. 1649. Banc. sup â—Ohns brought an Action of debt against Leviston upon an Assumpsit that the Defendant would enter into a judgement unto the Plaintif for so much monies as Sir Iohn Hall did owe unto the Plaintif if the Plaintif would take Common bail of him the Defendant Arrest of Judgement in an action upon an Assumpsit if Hall should dse before such a day and for not performing this promise the Action was brought upon non Assumpsit pleaded there was an issue joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement and shewed that it doth not appear that there was any notice given by the Plaintif to the Defendant how much mony was due to the Plaintif from Sir Iohn Hall as there ought to be Roll chief Iustice answered You did undertake to know at the time of the Assumpsit how much mony he did owe and notice is not necessary Notice and if it were he might have gone to Sir Iohn Hall to tell him and so it shall not only be intended to be in the knowledge of the Defendant himself but that he might have also knowledge of it by others Ierman Iustice doubted but Nicholas and Ask Iudges were of Rolls opinion and the Plaintif ordered to take his Iudgement if better matter were not shewen Custodes Libertat c. against the Inhabitants of Outwell Mich. 1649. Banc. sup THis Case was again moved Exceptions uâ—on an order of Commissioners of Sewers and answers to them wherein upon a presentment made to Commissioners of Sewers an order was made by them to reimburse the Dike-réeves for mony expended in repairing a Sea wall by laying a tax upon divers Vills amongst which Owtwell was one divers exceptions had been formerly taken to the presentment and order At this time it was 1. objected that the Commissioners cannot alter the usual custom for making the tax as they have here done and therefore their Order is not good It was answered that there is no custom here presented but if there be yet the tax cannot be laid generally upon the Vill but distributively for every one of the inhabitants have not an equal share of the land nor are all the lands of equal goodness And there is no custom for the Vill of Owtwell to approtion the tax so that they have no authority to doe it Windham on the same side said that there is no prescription or custom here found and so the tax ought to be ruled by the Common Law and other Towns ought thereby to be Contributory which receive benefit by the making of the bank and the Commissioners of Sewers have not here pursued the direction of the Statute of Sewers as they ought to doe And here the presentments upon which this order for the tax was grounded were made by three Iuries of several Hundreds and the breach to be repaired doth not appear to be within any of the Hundreds whence the Iuries come as the Statute doth direct neither is it shewed how the inhabitants are chargeable whether by tenure or custom or how else Holhead on the same side said It is not said how the lands are lyable to the tax 1. It is not shewed in what part of the Poe-Dike the breach hapned Maynard on the other side said that the Commission of enquiry finds by what default the breach happens but they cannot tell how many acres every one holds to charge them several and it may be intended that they hold joyntly and it shall be intended that the lands are lyable to
there is no use here to result but the party is in by the Common Law To the 3 point if the use doth result yet the estate of Hamond hinders the bargain and sale for he is a wrong doer because that the fee being determined by his holding over he is a wrong doer but if not yet his Estate is paramount For the 4th he held that the bargain and sale is not good upon the consideration expressed because it is not made for monies paid nor secured to be paid 37 Eâ—z VVard and Lamberts case C. B. For the 5th point he held that it doth not enure as a Covenant to stand seized because here are no words of Coveliant Boyntons case Plow Coment 301. 2ly There are plain words to shew the intent of the party to be against it and also actions following thereupon Foxes Case â— Rep. 15 Car. Pitfield and Pierce Banc. reg 17 Eliz. Gallards case And whether the use ariseth or not it matters not if the use ariseth Lease Watson hath title if not Cumberland hath the estate and so it is an ill feofment and prays judgement for the Defendant Roll chief Iustice said there is a variance Variance and it cannot be the same lease yet it is a good lease to raise a use because the feoffor joyns in it Ierman Iustice to the same effect and he held that the words at and from are all one Nicholas Iustice doubted Use Roll chief Iustice said that it is a distinct lease but the party hath made such a lease and more and a feofment made habendum a die datus if the seisin be not made at the last instant of the day it is not good Feofment The Court ordered it should be argued again Tuesday sevennight following Postea Hill 1649. Banc. super VPon an Endictment preferred 22 Car. at the Assizes in Kent against one for engrossing Apples Arrest â—f Iudgement in an Action upon the Stat. against engâ—â—ssing Victual Pears and Cherries framed upon the Statute made against engrossers of Victuals the Defendant pleaded and was found guilty formerly judgement was arrested and the Councel heard Edward Iohnson of the Inner Temple prayed for Iudgement for the Keepers of the liberty notwithstanding what had been objected formerly and that upon these reasons 1. Because that Apples Pears and Cherries are Victuals within the Statute and that because the Statute is not to be abridged And the Statute of 2 Ed. 6. made concerning fruiterers expounds this Statute that Apples and Pears are Victuals for the Fruiterers are called sellers of Victuals and for Bois his case that is objected that Apples are not Victual it is not to be meant of all sorts of victual in a general acception and without doubt engrossing of them is engrossing at the Common Law 26 Eliz. Salt is no Victual per se nor is used as Victual in any Country yet it is there said to be Victual But Apples are Victual per se and Costermongers are called Victuallers by their Charters Roll chief Iustice said That 4 Iac. Apples were adjudged no Victuals and after upon a writ of Error this Iudgement was affirmed in the Exchequer Chamber and therefore that judgement is not to be lightly passed over and if they should be adjudged Victuals the trade of the Costerwongers would be destroyed and for Salt it is no Victual but a preservative of Victual and Hops was adjudged to be no Victual 20 Iac. upon a reference made to the Iudges Neither are Apples to be accompted Victual within the Statute Ierman Iustice differed and Nicholas Iustice held that Apples are Victual within the Statute because they are better than Fish Ask Iustice held that Apples are Victual but not within the Statute for a Statute cannot alter by reason of time but the Common Law may It was adjourned Barnwell against Graunt Hill 1649. Banc. sup Entred Trin. 1649. rot 791. THe Court was moved for their opinion in this cause whether the writ of Error did lie or not Error to reverse a judgement where some are found guilty and others acquirred Abatement Error It was said that a writ of Error is not like another writ for another writ may be abated for one person and stand good to another but if the writ of Error will not lie it is abated in all Hacker and Wotton Pasch 24 Car. rot 342. And Roll chief Iustice asked the Counsel what he could say to the Books of 2 Ed. 3. and 3 Ed. 3. Privies in Record may joyn in a writ of Error so is it here and an inconvenience may come to all the parties by this judgement although but some of the parites against whom the action was commenced are found guilty and others are acquitted and therefore they may all well joyn in the writ And therefore let the Iudgement be reversed if cause be not shewn Wednesday next to the contrary Roberts against Tucker Hill 1649. Banc. sup Pasch 18 Car. rot 116. A Writ of Error was brought to reverse a Iudgement given in the Court at Bridgewater in an Action of the Case upon an Assumpsit to pay such a sum of money at the Defendants return out of Ireland Error to reverse a judgement given in an action upon an Assumpsit The Court held that Bridgewater hath no power to enquire of a thing done beyond their jurisdiction and Ireland is out of their jurisdiction whence the party upon the Assumpsit was to return Jurisdiction Latch of Councel with the Defendant in the writ of Error said that the writ of Error is returned by the Mayor and Deputy Recorder and their Letters Patents give not power to have a Deputy Recorder Return and the writ of Error is directed Maiori Aldermannis et Recordatori quashed The Court ordered cause to be shewn why the Writ of Error should not be quashed Postea Poynes and Francis Hill 1649. Banc. sup Mich. 24 Car. rot 222. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas in an Action of Trespass Error to reverse a Iudgement in Trespass and the Error assigned was that in the postea there is no association to the Iustice of Assize expressed as ought to be Roll Chief Iustice answered this is the fault of the Clark of the Assize Therefore let him attend and shew cause why the Postea shall not be amended Amendment Hill 1649. Banc. sup THe Court was moved to quash an Endictment for a riotous entring into certain land and carrying away 4 loads of Hay To quash an Endictment for a riot The exception taken was that the Endictment saith asportavit duo Carâ—cat sceni instead of duo Charectat soeni Roll chief Iustice answered If the party be culpable for the entry into the land although he carried away no Hay yet the Endictment is good therefore plead non cul to all the Endictment and it may be if it prove not good in all
14. 4ly He prescribes that the lands are not pleadable elsewhere which is not true for in some cases they are pleadable here in this Court Nat. Brev. 19 D. and so prayed judgement for the Plaintif Roll chief Iustice demanded why is there not a special demurrer here Special Demurrer After imparlance one may plead that the lands are antient demesne for a plea of lands in antient Demesne to the jurisdiction of the Court differs from other pleas pleaded to the jurisdiction of the Court It is true that parcel of a Manor of antient demesne is pleadalbe at the Common Law but lands held of the Manor are pleadable in the Court of the Lord. Adjourned to be heard Tuesday following Afterwards it was moved again and Roll chief Iustice said that after imparlance this plea is not good because by it he hath admitted the jurisdiction of the Court And therefore lâ—â— him shew cause why he should not plead in chief Pascall against Sparing Hill 1649. Banc. sup Pasch 1649. rot 75. A Writ of Error was brought to reverse a Iudgement given in an Action in Bristow upon a Concessit solvere by the Defendant Error to reverse a judgement in Debt for Concessit solvere Declaration Roll chief Iustice said that an Action of Debt did well lie upon a Concessit solvere by the custom of Bristow and so is it in London 28 H. 6. 1 E. 4. f. 6. Another Error assigned was that it is said that the party recovered the damages per juratores Compert whereas it ought to be Assess for this is the proper word but this exception was also over-ruled Latch took another exception that there wants the words pro misis et custagiis in the assessing the damages and so it doth not appear for what the damages are assessed And for this the Iudgement was reversed except better matter shewn Damages Iennings against Lee. Hill 1649. Banc. sup GEnnings brought an Action of Trespaâ—s of an assault and battery against Lee and his wife Whether an issue well joyned for an assault and battery made by the wife the Feme pleads a special plea of justification that it was in defence of her Husband The Plaintif replies de injuria sua propria upon this there was an issue joyned and a verdict for the Plaintif it was moved in Arrest of Iudgement that the issue was nor well joyned because the replication was not good and so the verdict not good and so there can be no Iudgement Serjeant Parker prays judgement for the Plaintif for he held the replication was good and so a good Issue joyned and if there be not yet it is helped by the Verdict Issue or else by the Statute of Ieofails or if not yet it is at least good in part And the issue here doth imply a negative although there be not a direct negative but an affirmative in the words of it And 6 E. 4 16 b. in a Replevin and 9 H. 5. f. 1. b. there are good issues joyned in the affirmative because they imply a negative Trin. 18 Jac. Banc. reg Aldridge and Walthalls case and here wants only a Traverse which is but only matter of form and not material 2ly The Verdict hath made the issue good although it be not well joyned 5 H. 7. f. 15. 3ly If the Verdict helps it not yet the Statute of Ieofails helps it 5 Rep. Nichols case 19 Eliz. Dallisons Reports 8 9 Eliz. Bendloes Reports and 14 Car. Banc. Reg. 4ly If the Statute help not yet it is well enough because it is good in part and for part it is well found and damages shall be intented to be given for that which is well found Damages 9 H. 7. f. 4. 16 H. 7. f. 1â— 10 Rep. James and Osburns case 3 Iac. Banc. Reg. Bigrane and Selling Mich. 1649. Desmond Osborn this case the Court denied Roll chief Iustice said Issue if there be 2 issues and one issue is not well joyned and damages be given entire this is not good but will make all naught 40 Ed. 3. f. 40. 18 Iac. Aldridges case 16 Iac. Iones and Gates adjudged and he said that the material thing is not here put in issue and so the issue is immaterial and there is a Ieofail and the damages being given entire there can be no judgement given Jeâ—â—ail Ierman Iustice did differ in opinion and said if the Defendant plead an immaterial thing and the Plaintif joyn issue and it be found for him he shall have judgement otherwise where the plea is partly material partly immaterial for there the issue ought to be upon the material thing otherwise there can be no judgement It was adjourned till Thursday following The Case was this An Action of Assault and Battery and wounding was brought the Defendant pleads non cul to the wounding and justifies the Assault and Battery in defence of her Husband in keeping possession of certain lands The Plaintif replied de injuria sua propria and doth not traverse absque tali causa The Iury find entire damages for all whereas there is not a perfect issue joyned as to the Assault and Battery for want of the Traverse Postea Hodges against Iane. Hill 1649. Banc. sup IN an Arrest of Iudgement in this case the question was Whether debt lie against an Executor sur concessit solve of the Testator Wager of Law Debt Executor Whether an Action do lie against an Executor upon a Concessit solvere of the Testator upon a special custom Roll chief Iustice held that it doth not for this would be to charge an Executor in an Action of Debt where he may by the Law wage his Law and an Action of Debt lies not against an Executor upon a simple contract made by the Testator And he said that the reason for Ley gager is because it is intended that as well as the contract to pay money may be in private so may also the payment be made in private Adjourned Giaves against Drake Hill 1649. Banc. sup IN an Action of Trover and Conversion for divers parcels of Houshold stuff an Exception was taken to the Declaration Arrest of Iudgement in a Trover and Conversion because the Plaintif amongst other things had declared pro sex parcellis plumbi cinerii Anglice Pewter Porringers whereas the word parcellis is uncertain for a parcel doth consist of many things in number and so sex parcelli cannot be properly applyed to six Porringers but if it had béen sex peciis it had been better though that be also incertain Hales held it was all one as if it had béen pro sex peciis plumbi Cinerii Roll chief Iustice enclined it was well enough because though the words are not so proper yet the description is good enough Declaration Words Ierman Iustice was of the same opinion But Nicholas Iustice held that the Latin is not good for if there be proper words for a thing they ought to
judgement in a trover and conversion Prestwood moved that the record is not certified for it is returned by one who is not Iudge there Abatement for it is returned by the Maior Aldermen and Deputy-recorder whereas the writ of Error was to return a record before the Maior Aldermen and Recorder 1 E. 5. f. 3. Jordan and Tompkins case 1648. Upon this the writ of Error was abated Wats against Dix Hill 1649. Banc. sup Trin. 24. Car. rot 1529. THis case was again argued Argument whether a lease well made according to direction of Deed in trust by Hales for the Plaintif and by Twisden for the Defendant I could not hear Hales but imperfectly Therefore I omit his Argument Twisden that argued for the Defendant put the case briefly thus A Feofment was made of lands to I. S. in fee until he should make a lease of 21 years to A. B. from the feast of Philip and Iacob I. S. makes a lease for 21 years to begin at the feast of Philip and Iacob And he held this was a good Lease made according to the direction of the Deed. 2ly If it be not a good Lease yet the use shall not revert to the Feoffor 3ly He held that there is neither a good bargain and sale nor doth it work by way of use For the first point he held if it had been by way of pleading it had not been good in pursuance of the Agreement otherwise it is being found by verdict but here the agreement and the intention of the parties is satisfied and the variance is not considerable de minimis non curat lex 10 Iac. Hob. f. 120. 38 E. 3. f. 7. Waste 35. 2ly In the Iudgement and estimation of men at and from are accompted to be all one in signification In the Stat. of 32 H. 8. it is so taken and in the Stat. of 27 H. 8. of enrollments and words shall be construed according to common intendment And if there be a variance yet the use rests in the Feoffees and shall not revert to the Feoffor for the word until is an Adverb of time Borastons case Sir Andrew Corbets case â—1 Rep. f. 85. Dyer 300. 3 Eliz. Mores Reports 3 Iac. Sir Guy Fairfax case if they make not the estate the estate remains in them And if it do not remain in the Feoffees yet it cannot revert to the Feoffor for he hath conveyed from himself all the estate that he had and if it return to the Feoffor it is a disseisin 2 Rep. Butlers case And for the bargain and sale that cannot be good for here is no Consideration but that which is past and not continuing which is no good Consideration Plow Com. 302.15 Car. Burton and Sherly 2ly The Consideration if there be any is not meritorious for ought any thing appears the monies may not be discharged which are laid out and so the Defendant remains unsatisffed and so there can be no Consideration Allens case 23 Car. 3ly If the debt be discharged yet it cannot raise a use for here is no monies paid but a debt And a use is not raised here because it was the intent of the parties to pass the land by way of bargain and sale Ed. Foxes case 13 Eliz. Plowd 32. 11 Car. Whitfield and Pierce rot 438. And if one intend to pass an estate out of himself he may do it either by the Common law or by Statute law Roll chief Iustice said if lands are passed for money only the déed ought to be enrolled but if it be for money and natural affection Enrollment Vse it is not needfull to enroll it but the lands will pass without enrolment And so here the land passes one way or other and if the use will rise all the other points are out of dores And there is here a continuing consideration to raise a use But the main question is whether the use riseth to the Feoffor if not all the other points are gone And he held that here was only a meer matter of trust the intent is not that the Feoffees shall have any thing by the not performing the trust but the use shall be to the Feoffor And there can be no disseisin in the case And here is a material difference in point of law in the making of this lease Lease for it is made for one day more then was agreed by the deed for that lease was to begin from the feast of Philip and Iacob and this lease is made to be begin at the Feast of Philip and Iacob Ierman Iustice held that the intent of the parties is performed and that there is no material difference and held for the Defendant Nicholas Iustice said here is no performance of the agreement for all the parties agreed not to this Lease for it is made for longer time than was agreed and he held that the use shall be to the other parties by contingency and that here is no disseisin Ask Iustice said all the difficulty is whether the lease be made or not and he held it was a good lease according to the agreement and said that the intent is not that the Feoffees shall have any thing but that it shall result to the Feoffor Roll chief Iustice said Intent the intent of the parties shall not be implyed against the direct rules of Law Nil capiat per Billam nisi c. Pendarvis against Dawkes Hill 1649. Banc. reg PEndarvis brought an Action of Accompt against Dawkes for divers sums of mony as his receiver Arrest of Iudgement in Accompt The Defendant pleads that as to all except ten pounds ne unques receptor upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that it doth not appear what ten pounds they are that are menrioned in the plea and so it is incertain whether they be part of the monies for which the Action is brought Roll chief Iustice said he ought to have expressed what ten pounds it is for as it is it is incertain and so not good Venire de novo Therefore take a venire facias de novo for though the issue be not well joyned yet the Declaration is good Cowley against Locton Hill 1649. Banc. reg Trin. 24 Car. rot 932. IN a writ of Error to reverse a judgement given in an Action of Debt upon an Obligation the case was this Writ of Error to reverse a Iudgement ment in Debt One was bound in an Obligation for the payment of certain sums of money to a Feme sole the Feme takes Baron and dies I. S. takes out Letters of Administration of the goods and Chattels of the Feme and brings an Action of Debt upon the Obligation against the Obligor The Obligor pleads that by the entermariage of the Feme the Debt due upon the Obligation became due to the Baron and demands Iudgement Si Actio Chose in Action To this Plea the
Plaintif demurs The Court said this Debt due upon the bond became not due to the Husband for it is a thing in Action and therefore the plea is not good Iones against Blunden Hill 1649. Banc. sup Mich 1649. rot 34. THis Case formerly spoken to was again moved by Wild Whether a good tryal or no. who held that in regard that the matter triable ariseth from two places and so the venire may be from both places yet it is well enough if it be from any of them and the Court hath jurisdiction in both places and therefore the tryal is well enough in this case Twisden on the other side said that here are two issues in tryal and so it is not within the Statute of Ieofails for that is of force only where one issue is tryed Roll chief Iustice answered here are not two issues for you have made them one by pleading and so it is within the Statute of Ieofails and helped by it Ierman Justice to the same intent Issue Ieofails and so Nicholas and Ask Iustices Roll chief Iustice said that the issue is joyned upon the matter arising in both places and yet it is well enough for the principal matter was in Sâ— Clements Danes Therefore let the judgement be affirmed except better matter be shewn Antea Adstone against Hunter Hill 1469. Banc. sup ADston brought an Action upon the case against Hunter and his Wife for these words spoken of the Plaintif by Hunters wife Arrest of Iudgement in an Action on the Case viz. Iane Adstone did bewitch my good man innuendo her Husband Vpon Not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of judgement that the words were too general and uncertain to raise any scandal and therefore an Action could not be brought for speaking of them Shaftoe of Councel with the Plaintif held that the words are actionable because they declare an Act or thing done and the party is scandalized by the words 4 rep â—eames his case and the words my good man are words well known to express her Husband by as 7 Iac. to say Thou art a healer of Felons was well understood to mean a Concealer of Felons and if the words good man be incertain yet they are certain enough to shew that some body is bewitched for the Act done is certainly enough expressed and the Plaintif is thereby scandalized and besides it is after a Verdict and by it they are made certain and damages are given for speaking them Mich. 15 Car. Com. Banc. Stones case rot â—36 Roll chief Iustice said These words Thou hast bewitched a man are actionable it is a scandal to say One hath killed a man by Witchcraft and he held the words actionable Ierman Iustice said they could not be actionable because by them there is no act of witchcraft expressed Nicholas Iustice said the words are not actionable for thou hast bewitched one may be spoken in a good sence words are but wind spoken in passion sometimes and other times in Iest or merriment Ask Iustice said that the words tend to scandal as they are spoken Averment and shall be intended that she hath bewitched one by Diabolical Art And Roll chief Iustice said It is not necessary to aver what Act of Witch-craft was done And these words Thou hast bewitched me and my Aunt have been adjudged Actionable in this Court It was adjourned to be argued again the next term Hill 1649. Banc sup THe Court was moved to quash an Order of a private Sessions of the peace that was removed hither by Certiorari The Order was To quash a Order of a private Sessions of Peace that one should contribute to half the charge towards the keeping of a Bastard Child because he did suffer a Souldier to get the Child upon the body of his Maid servant The Court said this was not within the Statute of 18 Eliz. and therefore let the Order be quashed Hill 1649. Banc. super A Prohibition to the Court of the Admiralty was prayed for Biâ—ckes a Clark of this Court for libelling against him there for prosecuting a matter at the Common Law which they pretend to belong to their Court For a prohibition to the Admiralty and for granting an injunction against him to stop his proceedings The Court answered there is no libel here this is but a citation to appear and is no Injunction against him but because upon the citation there appeared to be matter of Prohibition contained in it A Prohibition was granted Saunderson against Raisin Hill 1649. Banc. sup VPon a rule to shew cause why a Iudgement should not be reversed To amend a Record after Errore assigned the Court was moved that the Roll wherein the Error assigned was might be amended according to the Original which is right though the Nisi prius Roll be not so Holhead on the other side prayed there might be no amendment but the Iudgment reversed for if Iudgement be given upon an erronious Declaration which is the ground of the Action as it is here it is not good nor is amendable The Court answered this is the fault of the Clark who had the original before him which is the ground of all Amendment and by which he ought to form the Declaration But the matter is that here it is after a Verdict and it will be perillous to attaint the Iury though it being the Clarks fault it be amendable But let it rest till the next term and in the mean time we will advise Williamson against Mead. Hill 1649. Banc. sup Mich. 1649. rot 428. VVIlliamson brought an Action upon the Case against Meade Arrest of Judgement is an action upon an Assumpsit and declared upon three Assumpsits made by the Defendant to the Plaintif that the Defendants son should pay such a sum of money to the Plaintif for his boarding with him when he should be thereunto required upon non Assumpsit pleaded and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement That the Plaintif doth not shew that he did require the Son to pay the sum of money which the Defendant did assume should be paid upon request but only saith that the Defendant licet saepius requisitus non solvit The Iudgement was arrested till cause should be shewn to the contrary The same day it was moved again and the Councel urged that the request was not necessary to be made and prayed for judgement But Roll Chief Iustice answered that this was a collateral promise Request and therefore the request must be averred to be made to the Son Therefore the Plaintif can have no judgement and so nil capiat per billam was ruled to be entred Hudson Hill 1649. Banc. sup THe Court was moved that there was a scire facias issued out to certifie Errors For time to assign Errors and time was desired to assign them But the Court answered
the Statute of limitations of Actions in Bar of the Action to this Plea the Plaintif demurred Hales held that this action grounded upon the Statute is not within the Statute of limitations of Actions of 21 Iac. because it is not a meer Action on the Case at the Common Law but an Action upon the Case grounded upon the Statute of Monopolies But Twisden on the other side said that a Monopoly is an offence at the Common Law Monopoly for which an Action of the Case did lie before the Statute and that the Statute was made but to inflict a greater punishment for the offence and so it is within the Statute of limitations of Actions And 2ly the very words of the Statute say that all Actions shall be brought within six years and he that says all without limitation Statuâ—e of limitations excludes none and by consequence this Action is not excluded 3ly The end of the Statute of limitations was to quiet sales and therefore the Statute shall be largely interpreted because made for so publique a good Adjourned to the next term to be argued again Pasch 1649. Banc. sup VPon a verdict given against a Hundred that was sued in an Action upon the Statute of Winchester of Hue and Cries Arrest of Iudgement in an Action upon the Statute of Winchester Bill Original It was moved for the Hundred in Arrest of Iudgement that the Hundred was sued by Bill whereas it ought to have been sued by Original But the Court over-ruled the Exception and said that there are many Presidents to prove that such Actions may be commenced as well by Bill as by Original Pasch 1649. Banc. sup LEtchmore moved to quash an Inquisition taken against one upon the Statute of West 2. for the throwing down of Enclosures To quash an Inquisition denied But the Court answered that it was not proper to move to quash the Inquisition because the Defendant came in upon process and therefore he must either traverse or plead to the Inquisition Letchmore replyed that the Inquisition was so uncertain that the Defendant could not tell how to plead to it Plea Traverse But the Court answered he might plead to the Distringas And that the monies already levied for the offence should rest in the Sherifs hand until the tryal Hamond against Ireland Pasch 1649. Banc. sup Hill 1649. rot 818. VPon a Verdict given in an Ejectione firmae Arrest of Iudgement in an Ejectine firmae It was moved in Arrest of Iudgement that the Plaintif declares that the Defendant ejected him ex uno Cottagio whereas an Ejectione firmae lies not of a Cottage no more than a praecipe quod reddat lies of a Cottage But the Court answered that an ejectment doth lie of a Cottage because the description of the thing by that name is sufficient and certain enough to shew the Sherif of what to deliver the possession of Ejectment Recovery yet it was said that a recovery lies not of a Cottage Rethorick and Chapels case 10 Iac. was cited that an Ejectione lies of a Cottage and also a praecipe quod reddat VVood against Topham Pasch 1649. Banc. sup VVOod brought an Action upon the Case against Topham quare filium suum haeredem rapuit et maritavit Arrest of Iudgement in an action upon the case and obteined a Verdict against the Defendant In Arrest of judgement moved for the Defendant these exceptions were taken against the Declaration 1. That it doth not say haeredem apparentem but only filium haeredem 2ly It doth not say rapuit contra voluntatem but only rapuit 3ly It doth not set forth that the heir was within age 4ly It doth not say Cujus maritagium ad ipsum pertiner But the last Exception only was insisted upon Wilmot of Councel with the Plaintif to proove that that Exception was not material cited one Grayes case Pasch 29 Eliz. Banc. reg and the Books of 12 H. 4. f. 16. and 23 E. 3. Brook Tit. Trespass 43. But Hales urged that the last Exception was not answered Case Roll chief Iustice said That an Action quare filium haeredem suum rapuit will lie although the heir be of full age for the Father hath the mariage of his Son although he have no estate to leave unto him Adjourned to the next Term. Postea 227. Dawkes versus Payton Pasch 1469. Banc. sup Pasch 1650. rot 306. AN Infant brought an Action in this Court Error brought in the Upper Bench upon a Iudgement given there and had a Verdict and a Iudgement the Defendant brought a writ of Error in the same Court to reverse this judgement and it was assigned for Error that the Infant brought his Action in propria persona whereas he ought to have sued per guardianum and this is Error at the Common Law and is not helped by the Statute of Ieofails and it was argued that the writ of Error may be well brought in this Court to reverse a judgement given here if the Error assigned be matter in fact as it is in this case for by such a writ of Error the judgement of the Court is not called in question as it would be if the Error assigned were matter in Law and these Books were cited Error viz. 7 H. 6. 28. Dyer 196. Mich. 25 26. Eliz. Banc. reg Hales on the other side argued that the writ of Error did not lie And he made 2 questions 1. Whether the writ of Error did lie at all 2ly If it did lie in an other Term and he said that admitting the writ of Error doth lie yet it ought to have been brought the same Term wherein the judgement was given but so it is not here and therefore it is not well brought And 2ly If the Error assigned be Error yet it is helped by the Statute of 21 Iac. of Ieofails But if it be not yet the Error assigned here is not assignable for it doth not appear whether the party appeared per guardianum or not for the party is a privileged person The Court answered we cannot know whether the party be within age or of full age and therefore know not whether he ought to appear by Attorny or by Guardian but for Error in matter of fact in a judgement given in this Court a writ of Error will lie here well enough and it is all one whether the writ be brought the same Term or in another Term. But bring us Books and we will advise Postea Viccarye against Barnes Pasch 1650. Banc. sup AN Action upon the case was brought by a Mercer against the Defendant for speaking these words of him Thou art a Cuckold Arrest of Iudgement in an Action upon the Case for words and a Cuckoldly Rascal and art not able to pay thy debts and art not worth a Groat The Plaintif had a Verdict and upon a motion in Arrest of judgement because the words were supposed not
actionable the judgement was formerly stayed till the Plaintif should move At this day Pepes for the Plaintif prays for judgement because he held the words were actionable and cited one Bragges Case adjudged and said that the Plaintif had laid a special damage by the words Windham on the other side said That the Plaintif had not laid any special damage as Pepes supposeth but only allegeth a general damage namely that he by speaking of the words lost his credit and could not buy wares upon trust as he used to do before but only for ready money and so there can be no issue joyned Ierman Iustice held the words actionable and also Roll the chief Iustice for he said it was a hinderance to him in his Trade to be so spoken of although they bring him not within the Statute of Bankrupt and he cited 11 Car. Iackson and Hewes his case where an Action was brought by Iackson being a Grasier against Hewes for saying of him Thou art a base beggarly Rogue and art not able to pay thy debts Nicholas Justice held the words actionable but Ask Iustice doubted for such words may peradventure be true it they be spoken of a young Tradesman that begins with little And said that the chief question is whether the averment of the damage be well alleged and he held it was not because it was so general that no issue can be joyned upon it Roll chief Iustice said the words are found by the Verdict to be spoke falso et malitiose And therefore let the Plaintif have his Iudgement except better matter be shewed Pasch 1650. Banc. sup AN Information was exhibited in this Court against one for engrossing of Hay the Defendant appeared and pleaded to the information For the Defendant to try an Information at his own charge denied Indictment Information the Plaintif moved that the Defendant might be ordered to carry the cause down to be tryed at the Assizes at his own charge But the Court answered that they could make no such Order because the sute was not upon an Endictment which is at the sute of the Custodes but upon an information which is at the sute of the party Cater against Startute Trin. 1650. Banc. sup Hill 1649. rot 1025. THe Plaintif brought an Action of Debt upon an Obligation to stand to an award The Defendant pleaded that there was no award made Demurrer to a replication in debt upon an Obligation to stand to an award The Plaintif replies that there was an award made and sets forth the award and assigns the breach Vpon this the Defendant demurs and for cause shews that part of the award was that one of the parties should make such a general release to the other as Councel should advise so that the Councel are made Arbitrators in regard that a judicial act is referred to them which ought not to be for the Arbitrators cannot delegate their authority to others Ministerial Act Judicial and 8 E. 4. f. 10. was cited to this purpose But Wild on the other side said that the referring of the making of the releases to Councel was warrantable because it is but a ministerial act and not a judicial as is objected Roll chief Iustice said that there is no judicial thing left for the Councel to do but only a ministerial act and therefore it is well enough but it had been otherwise had it been a judicial act for that had béen for the Arbitrators to delegate their anthority to others which is not warrantable because it is contrary to the submission of the parties but to delegate a ministerial act is not contrary And with him the Court agreed and ordered the Plaintif to take his Iudgement except better matter were shewn Saturday next Dawkes against Payton Trin. 1650. Banc. sup Pasch 1650. rot 306. AN Action was ordered out of the Chancery to be tryed in this Court Whereupon the cause was tryed Error to reverse a judgement in the Upper Bench. upon an issue directed out of the Chancerie and a Iudgement upon a Verdict was given for the Plaintif The Defendant brings a writ of Error here to reverse this judgement The first question was whether it did sufficiently appear by the Record whether the party did appear in person or by Guardian Hales held that it did not appear but that it belongs to the other party to shew it for he ought to have all the Record upon which the Error is assigned A second question was Whether the Error assigned if it be Error be not helped after a Verdict by the Statute of 21 Iac. Hales held that however the party appeared whether by Guardian or in proper person it is helped by the Statute of 21 Iac. and cannot be assigned here for Error and the writ of Error that is brought is as well to reverse the judgement given here as the former judgement given in Chancery which cannot be for this Court cannot reverse their own Iudgement except it be for Error in process 1â— H. 6. 2. 44. 7 H. 6. f. 28. nor can this Court reverse their own judgement for Error in fact because it is to overthrow their own act yet the Chequer chamber may doe it yet there it is more proper to appeal to the Parliament and he said that the Cases of 2 Rich. 3. f. 1. and Dyer 1â—5 cited to be resolved have been since disputed and so prayed the writ of Error might abate Roll chief Iustice said that for the first matter whether it appears by the assignment of the party whether the appearance were per Guardianum Appearance or otherwise we will not imagin either Attorney or Guardian in the Case but that he appeared in propria persona because nothing to the contrary appears by the Record Error and if it be otherwise you ought to have shewn it And for the matter whether it be Error to appear by Attorney where the party ought to appear by his Guardian he held it was Error and that it is not helped by the Statute of 21 Iac. because it is more dangerous for an Infant to appear in propria persona or per Guardianum than per Attornatum for against an Attorney he may have remedy but not against himself or his Guardian and this is casus omissus out of the Statute And as to the question Casus omissus whether this Court may reverse their own judgement he held that they may for Error in matter of fact as the case here is though they cannot for Error in matter in Law as was adjudged Mich. 25. rot 96. and Mich. 5 Jac. in Watkins and Giffins case and if it should not be so here the party would be without remedy for he can have no remedy in the Chequer Chamber and there is no president in Parliament be to relieved there and it is neither against reason nor any Rule of Law for this Court to do it Vpon this the Councel moved to quash the
is not within the Iurisdiction of the Court and so they cannot hold plea for it at Barnestable and the judgement was given upon a nihil dicit because the Plea being forein the Defendant would not swear it which in this case he is not bound to doe Roll chief Iustice If it appear by the Declaration that the money was to be paid out of the jurisdiction of the Court jurisdiction the Iudgement is not good and it is not necessary to swear the Plea if it appears upon the Obligation that the monies were to be paid out of the jurisdiction of the Court Plea and he plead payment according to the Condition Iudgement but if one will not swear a forein Plea where he ought to doe it the Plaintif may enter judgement upon a nihil dicit for such a forein Plea not sworn is no Plea upon the matter The Iudgement was reversed nisi c. Ley against Anderton Trin. 1650. Banc. sup Pasch 1650. rot 524. LEy brought a writ of Error to reverse a judgement given in the Common Pleas for Anderton in an Action of Debt upon an Obligation Error to reverse a judgement in debt upon an Obligation and Assigns for Error that the Obligor in the Obligation upon which the Action was brought made his wife his Executrix and dyed and that the wife being Executrix dyed intestate and that the Plaintif in the Action took administration of the goods and Chattels of the feme and brought the action of Debt upon an Obligation as Administrator to the wife whereas the Plaintif ought first to have taken Letters of Administration de bonis non administratis of the Testator and so to have brought his Action Administration To which the Court agreed and said it is a plain fault and reversed the Iudgement nisi c. Elsy against Mawdit Trin. 1650. Banc. sup ELsy brought an action of Assault and Battery against Mawdit an Attorny of this Court Whether the Huâ—band must put in bail for his wife in assault and battery and his wife The Defendant Mawdit appeared in propria persona and his wife was in custodia and so the Plaintif declared against them the question here was whether Mawdit the Defendant ought not to put in bail for his wife Burrel of Councel with the Defendant argued that the Declaration was not good because that the Husband Mawdit ought to have put in bail for his Wife and cited Smith and Smiths case and Mich. 17 Car. Simon Fanshaws case and Dyer 377 a. and Brook title Privilege 353 a. and 9 rep Roll chief Iustice said he ought to put in bail therefore the Plaintif nil capiat per billam Bail because his Declaration is not good against her in Custodia The City of London against De roy Trin. 1650. Banc. sup LAtch shews for cause why a procedendo should not be granted to London against De roy Cause why a a procedendo should not be granted to London who upon a tryal against him was committed in London for using the Trade of a working Gold-smith and a working Ieweller not having served as an Apprentise to the Trade and was brought hither by a Habeas Corpus 1. That the Declaration is founded upon a By-law and that By-law is founded upon a Custom and if either the Custom or By-law be not good in all patts the Declaration is naught and here the Custom is certified in the negative and this is oppositum in subjecto and meerly contradictory in it self By-law 8 E. 3. 77. and the By-law also that is certified is not certain and it is also unreasonable for every stroke the Defendant strikes is using of his Trade and it is unreasonable he should pay five pound for every stroke 2ly The Declaration is not applied to the By-law upon which it is grounded for the doing of a thing one day is not using to doe it and the words diversis vicibus do not help it for they are not applyed to his working as a Ieweller but to his working as a Goldsmith only also it doth not appear who is to have the forfeiture for one third part of the fine set upon him and it is not said that he gained his living by the Trade or sale of the commodity wrought and the words of using it pro lucro et proficuo do not help it for it may be he uses it for his private use and that is to his profit though he sell not the commodity Next it is unreasonable that a stranger an Alfen shall be restrained by a By-law made 40 years ago Notice where of he had no notice and that by reason of such a Law he should be punished for doing a thing which the Common Law allows namely to get his own living It is also said Non existens liber homo usus est arte c. which are words very incertain for by the offence so expressed every Apprentice may be punished for working for an Apprentice is not Liber homo Maynard on the other side cited 5 E. 3. that a negative with an affirmative implyed is good and that it is exclusive of Strangers and inclusive of the Citizens And the offence is the matter not the time of the Defendants using the Trade it is also well designed in all points to what use the fine is to be put and if there be Error they ought to bring a writ of Error and to except to the Declaration And this case cannot be likened to an Apprentises working for he uses the Trade not for himself but his Masters benefit The Court desired books and adjourned it till the next Term. Custodes libert c. against White VVHite was outlawed in an Action of Trespass To reverse an Outlawry Abreviation It was moved to reverse the Outlawry because in the exigent it was Utlest being put for an abbreviation of utlagatus est and upon this exception it was reversed Disne against Grigson Trin. 1650. Banc. sup Hill 1649. rot 98. DIsne brought an Action of Debt upon an Obligation against Grigson Demurrer after an issue joyned the condition was for the payment of a certain sum of money upon the resignation of a living and a certain annual sum at two payments The Plaintif aseigns a breach in not paying such a sum at such a day upon this the issue was entred and after the Defendant demurs Roll chief Iustice The Defendant is a Mad-man and we cannot give Iudgement against him stay therefore till he is recovered Yet take your Iudgement nisi Iudgement Error c. for the other may bring his writ of Error if he will Nota. Bernard against Levit. Trin. 1650. Banc. sup BErnard brought a writ of Error against Levit to reverse a Iudgement given against him in the Common Pleas in an action upon the case for speaking these words of him Thou Bernard art a base fellow Error to reverse a judgement in an Action
And as to the second the Court held that it shall be intended that the Posts and Pales were not fixed to the ground Amendment and there is no necessity to express how many Posts and how many Pales the Defendant took Intendment and it is not material whether they were fixed or not But the Court would advise and ordered Councel to spake again to it Popham against White Mich. 1650. Banc. sup AN Action of Trover an Coversion was brought Exception to a Declaration in a Trover and Conversion wherein the Plaintif declared pro Arboribus Twisden of Councel with the Defendant argued that the Declaration was not good because a Trover cannot lie de Arboribus Roll chief Iustice he may declare de Arboribus if he say that he was possessed sicut de Arboribus suis propriis But Ierman Iustice doubted Therefore the Court would advise Martin against Hendlye Mich. 1650. Banc. sup MArtin brought an Action of Debt against Hendlye a Sherif for an escape and had a Verdict against him Arrest of Iudgement in an action of Debt against a Sherif for an escape Advantage The Defendant moved in Arrest of Iudgement and took these exceptions 1. That the Action was brought by the Plaintif as an Administrator for the escape which was made in the life of the Intestate only 2ly That there is no Capias issued to the Sherif The Court answered That the Sherif cannot take advantage of an erronious process but the first exception is good for the Action ought to be brought in the Detinet only the Plaintif being but an Administrator Detinet who recovers not to his own use Therefore stay Iudgement till the Plaintif move Dethick against Mich. 1650. Banc. sup DEthick moved for a Prohibition to the Admiralty for preferring an Endictment there For a prohition to the Admiralty Prohibition Certiorari which is not within the Statute touching the Admiralty and so they have no jurisdiction of the cause The Court answered that a Prohibition lies not in cases of Felony but if there be Cause it may be removed by Certiorari But we will advise Bennet and the Hundred of Hartford Mich. 1650. Banc. sup IN a tryal at Bar between the inhabitants of Hartford and Bennet a Caryer upon an Action brought against them upon the Statute of Winchester Evidence by one of the lury to the rest Evidence for a robbery committed within that Hundred upon his servant It was said by the Court that if either of the parties to a tryall desire that a Iuror may give evidence of something of his own knowledge Examination Where a hundred shall be charged for a robbery or where not to the rest of the Iurors that the Court will examine him openly in Court upon his oath and he ought not to be examined in private by his companions And it was also said that if a robbery be done in crepusculo the Hundred shall not be charged but if it be done by cleer day light whether it be before Sun rise or after Son set it is all one for the Hundred shall be charged in both cases Mich. 1649. Banc. sup SErjeant Earl A Iury being ready at the Bar for a tryal challenged the Atray for want of Hundreders A challenge of the array f r want of Hundredors the manner of it and delivered in the challenge in writing to Woodward the Clark of the Court to be read But the Court interrupted him and said to the Serjeant you ought first to read it your self in French which he accordingly did and afterwards Woodward read it in Latin Twisden of Councel on the otherside said that the challenge was taken to no purpose for the Iury was returned by the Secondary by rule of Court and the Hundreders were put out by the consent of the parties But the Court answered that the consent of the parties was to no purpose to avoid the challenge but that it was a good challenge Consent Challenge Tales and there cannot be a tales granted upon a challenge for default of Hundreders and therefore the panel was quashed and a new Iury ordered to be returned by the Sheriff In this case it was said that after the first man of a Iury is sworn the Array cannot be challenged Cage against Dod. Mich. 1650. Banc. sup VPon a tryal betwen Cage and Dod touching a Copyhold it was said by the Court that a Copyholder for life cannot prescribe against his Lord What copy-holder may prescribe against his Lord and what nor but a Copyholder in fee may for he hath the Copyhold in the nature of Land of inheritance And also that if a Copyholder for life cut down tymber trees the Lord may take them And that if an under Lessee for years of a Copyholder cut down tymber Forfeiture it shall not be a forfeiture of the Copy-holders estate The Countesse Rivers Mich. 1650. Banc. sup THe Countesse Rivers put in her plea of Privilege of Peerage into Court A Plea of privilege of peerage by Countess Privilege and prayed by Sejeant Glin of her Councel that it might be read and allowed Vpon which it was read by Woodward Clark of the Court. After which Roll chief Iustice said it is questionable whether a Countess made so by patent only for her life be privileged or no therefore let her remain in the Custody of the Sheriff till Saturday and not be turned over to the Custody of the Mareschall and then move it again Postea Burton against Low Mich. 1650. Banc. sup BUrton brought an Action of debt against Low Demurrer in debt upon a Sheriffs bond upon a Sheriffs bond given by Low to the Sheriff being arrested by him by virtue of an Attatchment directed to him out of the Chancery the condition of the Bond was that the Defendant should appear on such a day in Cancellaria apud Westmonasterium ubicunque suerit The Defendant pleads in Bar the Statute of 3 H. 6. she Plaintiff demurred to this plea. Moseley of Councell with the Defendant argued that the Bond upon which the Action was brought was void and against the Statute 1. Because the party is bound to appear in a Court which is not a fixt Court and so incertain namely the Court of Chancery at Westminster whereas the Chancery is a moveable Court and not fixt to Westminster or any other place 2ly The condition of the Obligation is impossible for it is that the Defendant shall appear in the Chancery at VVestminster wheresoever it shall be and it is impossible for him to appear at VVestminster and at another place at the same time 3ly The Bond varies from the Statute in some things and enjoyns more than the Statute requires in other things VVilmot on the other side held that the Bond is not within the Statute because the King is not within the Statute as was held 13 Car. 7 H. 4. f. 44. 5 rep VVhelpdales case Dyer 119. Roll chief
in Colton and by this demand the Kind of the Tithes demanded is not made certain for the word garba admits of divers constructions and so Lynwood the Civilian shews 3ly It is not expressed whether the Defendant be terr-Tenant or heir 4ly The demaund is ac etiam de rectoria de Acerstall Malvis which is incertain for it ought to be de rectoria ecclesiae Roll chief Iustice to the 1. Exception said Miscontinuance that the appearance of the party will help miscontinuance of proces and so it doth here Hales to the 2d exception said that decimae garbarum is certain enough to common understanding To the 3d. Exception he held it not necessary to say de rectoria ecclesiae for it must be so necessarily intended The Court desired to see books and so it was adjourned At another day the case was again moved and these spoken to and answered 1. As before that decimae garbarum is certain enough so common intendment 2ly That it is not necessary to expresse the setting forth of the dowr in the tithes by metes and bounds for tithes cannot be so set forth and it is not constant to use the expression per metas et bundas Latch took another exception that it was improperly expressed for one to enter into an Advowson And to the exception formerly taken he held that the Proclamation of summons ought to have been returned and that fault is not helped by the late Act because it is matter of substance and not meer matter of form and he said that appearance of the party doth salve a discontinuance of mean processes but not of originall processe as this is which is the very foundation of the Action and that though the want of a summons be helped by the partyes appearance yet the want of returning the summons is not helped by the partyes appearance Next he held as formerly that decimae garbarum is incertain and that the nature of the corn ought to be shewed Roll chief Iustice said Return that the not returning the proclamation of summons is not material for the summons is only to make the party appear and he hath appeared in this case and the late Act extends to it if it were not good without it And the demand of tertiam partem garbarum is certain enough by common intendment but it seems more certain here than so for it is tertiam partem garbarum granorum which signifies corn And it is not necessary to express the setting forth of the dowr per metas et bundas but it is well as it is without that expression And lastly It is well enough said ingressus est into the advowson although it be not so proper an expression as might have been used for it is good enough to make the party tenant Ierman Iustice to the same effect and said that if there be two Tenants in Common and one of them dye it is a great question how the wife shall be endowed viz. whether per metas bundas or no. And he doubted whether the Writ of error here brought were good or not for it is retornable coram custodibuâ— libertatis c. apud Westmonasterium whereas as it ought to be coram custodibus ubicunque for they are not fixed to Westminster Nicholas Iustice to the same effect Error Roll chief Iustice said it was a good exception that Ierman took to the Writ of error But the Court was here at Westminster at the return of the Writ and the Writ was made by the Custodes themselves and the partyes did appear upon it and therefore he questioned whether it might not be made good for these reasons Ierman Iustice held it could not Roll chief Iustice said that all the Latin presidents are agreeable to this Writ and it would be dangerous to alter them But let the cursitors attend Presidents and give their reasons why they do not alter this form and if the Writ be good me thinks the Iudgement should be affirmed Yet we will advise a little of the writ and whether the demand of decimam partem garbarum without granorum be good or not Postea Lumley against Nevil Mich. 1650. Banc. sup IN a writ of error brought upon a Judgement given in an ejectione firmae Error in an habere facias Possessionem It was said by Roll chief Iustice That if the writ of habere facias possessionem do contein more Acres of Land than are expressed in the Declaration that it is error But if the Sheriff do give possession of more Land than is conteined in the writ of habere facias possessionem an Action of the case lies against the Sheriff or an Assise lyes for the land It was also said that if a Iudgement be affirmed upon a writ of error in the Exchequer Chamber Error Case Assise Execution yet they cannot grant out execution there but it must be in this Court Hunt against Popham Mich. 1650. Banc. sup IT was moved for the Defendant to have the rule of Court for the Plaintiff to bring in the postea The court not to be moved for a rule where it may be given in the office Nonsuit that the Defendant may move in Arrest of Iudgement The Court answered they would make no rule for the Defendant may give rules in the office to force him to it and if he will not bring it in he is to be nonsuit Fairefax against Fairefax Mich. 1630. Banc. sup THe Case between Fairefax and Fairefax was moved again Whether a demand in down good or not and Hales held that the demand of dowr de decimis garbarum was certain enough though it be not garbarum granorum and he cited the Register 46. and Dyer f. 84. and one Cavendishes case 8. Iac. Roll chief Iustice took a difference between a demand of Tithes and the suing for a recompence for Tithes upon the Statute of 2 Ed. 6. and cited the Regist 165 and he held the demand here to be good with whom concurred the other Iudges Ask Iustice said that a garb is a french word and signifies any thing bound up into a bundle but by Cowell the Civilian it signifies Corn bound up and so is the word commonly used at the Common Law Demand Roll chief Iustice said that a demand in a praecipe ought to be more certain than it is necessary for a demand in dowr to be Latch said that the words coram nobis apud VVestmonasterium is part of the stile of the Court which Roll chief Iustice denyed yet he said it was well enough because the Court was there at the return of the writ of Error To which the other Iudges agreed and the rule was that the Iudgement should be affirmed nisi c. antea Mich. 1650. Banc. sup THe Court was moved that one was arrested upon a day of thanks-giving appointed by the Parliament Moved to discharge an arrest and that he was forced to put in bond
refusing to appear and do his service at his Court he had forfeited his Copyhold and that therefore he did enter The Case was this The Defendant being Lord of the Manor and holding of his Court the Plaintif being Tenant and being in the Court and there being a question whether the Court were legally then held or no and being asked if he did appear or not he answered If it be a legal Court I do appear but if it be not a legal Court I do not appear The question was whether this be an appearance or such a refusal to appear whereby the Copyholder shall forfeit his Copyhold or not Latch held it was no appearance and that therefore the Copyhold was forfeited and cited 43 Ed. 3. f. 25. And he said though it be not expressed by the Defendant that the Plaintif was legally summoned to appear in Court it is not material seeing he was present in Court and did refuse being demanded to appear And that this was a sufficient contempt to make a forfeiture And he said that the Rejoynder is ill for it is dixit comparuit and he doth not answer to the fact alleged viz. That he denied to do his sute and service Wild on the other side said that it is no forfeiture for if the Court be well held then he doth appear as his words do plainly manifest and so there is no contempt and if the Court were not well held his not appearing shall not burt him for he is not required to do it 37 Eliz. Est and Hardinges case and 4 rep 27. Hobard and Hamonds case And besides this cannot be a voluntary contempt because he did appear conditionally and did not absolutely refuse And the Replication hath not entitled you to a forfeiture Besides it appears not here that the Court was legally summoned as it ought to do nor that there was any proclamation made for the holding of the Court nor any notice given to the Tenants of the holding of the Court 38 39 Eliz. Banc. Reg. Crisp and Dyer Roll chief Iustice This case hath depended long Forfeiture It is a hard thing to make a forfeiture of the Copyhold if there was a real controversie whether the Court was well held or not but if not and that the words were used only as a shift to avoid the Plaintifs sute and service it is a forfeiture for the words are like Iack in a Box and no body knows what to make of them Ierman Nicholas and Ask enclined that it was no forfeiture Adjourned to the next term Fielder against Tovy Hill 1650. Banc. sup Pasch 1650. rot 430. FIelder brought an action of debt upon a bond given to the Sherif by Tovy the Defendant to appear to the Plaintif in the Vpper Bench Demurrer to a Declaration uâ—on a Sherifs Bond. to an Action there brought against the Defendant The Defendant appears and demurs to the Declaration and shews for cause that the Bond upon which the Plaintif declares and the Declaration do not agree for the Plaintif declares pro quadragint libris and the Obligation mentions that the Defendant is bound in quadragent libris Divers cases were put to resemble this viz. Massam and Iollies case where sexigint was put for sexagint and yet held good and Waters case where septuagint was put for septingent And Downes and Hussies case 12 Car. Banc. Reg. where quingint duabus libris was used instead of quinquagint and yet held good because it might be an abreviation of quinquagint Ierman Iustice held the Declaration not good because the condition of the Obligation is to doe a collateral thing and so it cannot appear by it what the sum is in which the party is bound as it may where the condition is for the payment of money Roll chief Iustice held the Declaration not good Declaration because the Bond upon which it is grounded doth not warrant it and the meaning of the word cannot here be known and if the Condition were not collateral it would not help it Nicholas Iustice differed and said it would be hard to make it no Obligation for the mis-writing of a word and therefore it were good to search presidents for it as a considerable case Ask Iustice said the meaning is obscure and this makes the difficulty Adjourned Postea Wentworrh against Wentworth Hill 1650. Banc. sup Mich. 1650. rot 531. VVEntworth brought an Action of Debt against Wentworth upon an Obligation The Condition of it was this in effect That whereas the Defendant had granted an annuity to the Plaintif that the Defendant should make further assurance to the Plaintif for the enjoying thereof within one month when he should be thereunto required Vpon a special verdict the question was from what time the month should begin whether from the date of the Obligation or from the time of the request to be made Latch held it should begin from the request and not from the date of the Obligation because a month from that time is too small a time to do the thing required but if it shall be after the request it will be a proportionable time fit for the doing it Roll chief Iustice If there be an indifferent construction which may be taken two ways Interpretation we will take it that way which is most reasonable to make the Obligation stand in force and me seems the words here are plain namely that the assurance shall be made within a month after request not after the date of the Bond. Ierman Iustice to the same effect and said that although the request for further assurance were not within one month after the date of the bond yet the party may require it after the month is ended and within a month after such request the assurance is to be made and the Obligation shall be intended for the benefit of the Obligor Nicholas and Ask Iustices to the same effect so judgement ruled for the Plaintif Nisi c. Child against Guiat Hill 1650. Banc. sup Hill 1649. rot 153. IN an Action upon the Case upon an Assumpsit made by the Defendant to pay the Plaintiff a certain sum of money at a certain day Special verdict Q. whether a variance between the declaration and the promise on which it was granted Vpon a speciall verdict The question was whether there were a variance between the promise and the Declaration which question grew from the doubt whether the day of payment in the Assumpsit shall be intended according to the old stile or according to the new for if it were intended one way there was no variance if the other way there was a variance Hales held that there was no variance and though there should be yet he said the Plaintiff ought to have Iudgement because the time in this case is not material for the debt for the payment whereof the promise was made appears to be due upon an Accompt made between the parties which time is past and grows not due
for septuagent and Pary and Dayes case quinquegent for quinquagint and these held no materiall variances Latch on the other side said the word in the Bond is uncertain and the condition hath nothing in it to reduce it to a certain signification and if it make any certainty in it it must make it signifie 400 l. and then the Plaintiff hath failed in his Declarasion and Hobarts case differs from this and as for Osborns case it is variously reported and so not to be relyed on Roll chief Iustice What say you to sessanta But the question here is what shall be meant by the word whether 40. or 400. And in Fiâ—zâ—â— berts case Iudgement was given upon a demurrer Variance that gent for gint was a material variance and our case is all one with that If the doubt be whether it should be 40. or 400. how shall we know the intent of the partyes and if it be certain it must he understood 400. and the Action is brought but for 40. l. 44 Eliz. Mich. rot 1301. Gray and Davis case Sexgint was adjudged to be a Bond of 60 l. and not of 600 l. And it is the gent. and gint in all the cases that makes the difference And the case of sessanta comes not to our case and so concluded Iudgement to be against the Plaintiff Ierman Nicholas and Ask Iustices of the same opinion Nicholas Iustice said that false Latin in a Bond doth not make it naught but he held this Bond was for 400 l. and not 40 l. and it is not incertain for the grammar rule ginta notat decem sed genta numero centum doth hold here Antea Gay against Gay Pasc 1651. Banc. sup Trin. 1650. rot 1350. VPon a speciall verdict found in a replevin Whether an estate tail or fee conditionall The case was this A man seised of a Copyhold Borough English devised it to H. his grandchild and to his Heirs and if he dye during the life of his mother the remainder to H. his younger brother and to his heirs The question here was whether here be an Estate tail in H. or a Fee simple executory If it be an Estate tail then the devise was said not good because it is of a Copyhold but if it be a Fersimple Limitation then it is a good devise Roll chief Iustice said that a limitation of an inheritance after an absolute Fee simple is not a good limitation for this would be to make a perpetuity which the Law will not admit Perpetuity but if it be upon a contingent Fee simple it is otherwise Adjournatur Postea Heale against Greene. Pasc 1651. Banc. sup Hill 649 rot 370. IN an Action of Trespass and ejectment Case upon a special verdict in trespass and ejectment upon a speciall verdict sound the case proved to be this A man seised of a manor that had divers Tenants that held for lives by old rents deviseth it to his wife during her life with power to let and set and make estates out of them in as ample maner as the Testator might if he were living The questions were made by Latch 1. Whether this power given her to set and set c. doth not alter her Estate for life in the Lands devised to her 2ly Whether this power given her by the Will adds any power to her estate for life to make estates and he held for the first that the power given her did not alter her Estate And 2ly that it ads no power unto her Estate because the clause in the Will is one entire clause and not double and accumulative and so she can make no greater Estates than her estate for life will bear And for the obiection that is made That then the words that limit the power to her are void and idle He answered that it is not necessary that all the words in a Will should give something but some words may be explanatory of other words and so are these words here and yet the words here may add something to her Estate viz. to enable her to make Estates without impeachment of waste And the words shall not be intended of the time of Execution of the Estates made by the Feme for then they are idle Hill 1 Car. Banc. Reg. Danyel and Vplins case One may dispose an estate by Will for life with power to make Estates to continue after the death of the party that made them But here the estate is made only out of the interest of the wife which cannot endure after her life Pasc 44. Eliz. Bible and Dringhouse and so prayes Iudgement for the Plaintiff Hales for the Defendant made these questions 1. What power was given by the Will 2ly Whether it were well executed and he held the feme being executrix hath but an Estate for life But she hath a power to make estates as she hath done There is no question but such a power may be added The question only is if this power be added here in our case and he said it was added by the express words of the will for else those words are frivolous and operate nothing In Danyel and Vplins case cited which was entred 20 Iac. Hill 720. there is no express Estate given to the party but a meer power only and it was not by reason of the words added for they are only conjunctive words And Iustice Whitlock held there that the first words gave the power Though Iustice Iones differed in opinion and that case is the very same with ours The reason in our case That the words give power to the feme may appear by the comparing this part of the Will with the other parts of it In other parts of the Will where things are devised to his wife these words here used are not added and that argues that the Testator intended the Feme more power than in other things devised to her and the words themselves being a devise of a manor proves by the nature of the thing that the Testator intended to give power to the Feme to make Estates out of the manor And it cannot be intended that the words In as ample maner c do only give the feme power to assign over her term Vaughan and Longs case 24 C. the words were adjudged to be words to enlarge the power of the Legatée and so are they here And the subsequent clause during the term of her life restrains not the power for these words may be either referred to the Estates to be made or to the time of making them and here they are referred to the execution of the power and this is more suitable to the intention of the party in ordinary reason and they are added to expound the intent viz. that the remainder limited over shall not hinder the feme for he hath not barred her out and hath imposed this trust in her as Executrix and as Legatee And for the 2d point here is a good Execution of
words of a will which were these I give all my free lands wheresoever to my Brother Iohn Sanders and his heirs upon condition that he suffer my wife to enjoy all my Freelands in Holford for life the Testator having only a portion of tithes of inheritance in Holford and no lands The question here was whether this portion of tithes shall be accompted free lands within the intent of the will and so the wife be to have them during her life Twisden held the tithes were not devised by the will to the Feme for if I devise my fee-simple lands to Iohn a Stile and his heirs tithes do not pass by this devise for tithes are a collateral thing arising out of land and not part of the land it self 42 Ed. 3. f. 13. 10 Iac. Moyle and Ewers case 31 Eliz. Perkins and Hyndes case In the will here they pass not for there are no words in the will to devise them nor can the words he so expounded and here are other lands devised to satisfie the words of the will A term for years hath more relation to land than tithes and a term could not have passed by the words of the will Next the second Clause doth not pass the tithes for there is no such thing as is expressed in it but if it should pass to the wise by implication yet it cannot pass to Iohn Sanders the Brother for there are neither expresse words nor any implication to devise this portion of tithes to him but the contrary rather is to be collected from the Will Wadham Windham on the other side answered that the Testator calls the tithes in Holford his free lands It is true generally that by the devise of lands tithes do not pass but in a will by the intent of the Devisor they may pass and the word land includes all real things in common intention and legal construction as Lutrels Case is 1 Mar. Bro. Tit. Elegit An Elegit may be of a rent and tithes have a nearer relation to land than rent have 2ly Here is an apparent intention to devise the tithes for he explains his meaning in his second clause of the Will that he intends tithes by the word lands 44 Eliz. Com. Banc. Gery against Gery the question there was what passed by the word rents whether lands passed The words were as to all my lands in Dale I devise my rents c. and here the matter comes in by a Proviso which enlarges the matter Trin. 3 Iac. Fitz. Williams case One devised all his goods Iewels and Plate excepting his lease in C There it was adjudged that all his other Leases passed 4 Ed. â— Br. grants 51. Another circumstance in the Will enforceth this construction viz. the word wheresoever which word expresseth the intent of the Devisor to be so otherwise that word will be idle and to no purpose Hob. rep Stukely and Butlers case It may also appear out of the body of the Will for it appears thereby that his Daughter was provided for in his will by his personal estateâ— and that the intention was to dispose of his lands to the Heir and his Copyhold lands which he had in Holford were surrendred at the time of the making of the Will and so the devise cannot refer to them and besides this is called free lands which distinguisheth them from Copyhold lands and so he prayed judgement for the Plaintif Roll chief Iustice There is a Condition annexed to the Devise Condition that his wife shall enjoy this land though the words in the Will are not very proper to erpress it but we must consider them as used in a Will not in a conveyance Nicholas Iustice said the Devisor himself calls them free-holds and this distinguisheth them from Copyhold lands Adjourned till Saturday following to be argued again Dowse against Masters Pasc 1651. Banc. sup DOwse brought an Action of Debt upon an Indebitatus Assumpsit against Masters for five pound Demurrer to a plea in Debt upon Indebitatus assumpsit in which the Defendant pleaded that he did deliver bils to the Plaintif to the value of 6 l. in which the Plaintif was indebted to him which bills the Plaintif did accept in full satisfaction the Plaintif replyed protestando that he was not indebted to the Defendant that he did not receive bills to the value of 6 l. in satisfaction Vpon this a Demurrer was joyned Roll chief Iustice said Plea the Plea of the Defendant is ill for he doth not say that he delivered the Bills in full satisfaction but that the Plaintif received them in full satisfaction which is not good for the Plaintifs receiving of the Bills must be as they were delivered and not other ways and that is not expressed Therefore let the Plaintif take his judgement nisi c. Ross against Lawrence Pasch 1651. Banc. sup ROss brought an Action of the Case against Lawrence for speaking these Welch words of him viz. Dedingues Will Rols in mudon Arrest of Iudgement in an Action upon the case for Welch words Englished which are in English William Ross hath forsworn himself upon Issue joyned and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable as they are rendred in English and so the Action lies not Roll chief Iustice If the words sound in Welch that the Plaintif was perjured yet if the Plaintif do English them in English which doth not amount to perjury it is ill Case and an action will not lie for them Therefore let judgement be stayed Peck against Ingram Pasch 1651. Banc. sup PEck brought an Action upon the Case upon an Assumpsit and declares Arrest of Judgement in an action upon the case upon an Assumpsit that the Defendant in consideration that she the Plaintif would leave her Fathers house and come to the House of the Defendant in such a place did assume and promise unto her that he would mary her and that thereupon she did leave her Fathers House and did come to the Defendants House et obtulit se in maritagium conjungi and because he had not performed his promise Actio accrevit Vpon issue joyned and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and took Exceptions that the Plaintif did not shew in her Declaration when she left her Fathers House and came to the Defendants house nor that she gave him any notice thereof Wild moved for judgement notwithstanding the Exceptions for he said though it be not expresly said that she gave the Defendant notice when she came to his House yet it is said quod obtulit se in maritagium conjungi which implies the Defendant had notice and besides here is no need of notice for the Assumpsit is that if she will come to the Defendants house he will marry her and it is not said that when she comes he will marry her so that he is bound by
dis-inherited by doubtfull and ambiguous words as it must be here if these tithes should pass Next as to the verdict he said that it is not thereby found that the Testator died possessed of the tithes as it ought to have been as it hath been adjudged 43 Eliz. and so he prayed judgement for the Plaintif Maynard of Counsel with the Defendant argued That the tithes did pass by the Will otherwise part of the Will must be void which ought not to be if all parts may be so construed that they may stand together and he agreed that lands and tithes are distinct things but in Wills it is not to be so much considered whether the words of them be proper but what was the intent of the Testator in them and whether they do declare his meaning or not and here by construction of the words by freelands inheritance is meant in opposition to Copyhold lands or terms for years 2ly Here is a positive assertion of the Testator himself that in his understanding he had free lands in Holford for he had no other lands there 35 Eliz. Robinsons case rot 504. Banc. Reg. by a will things of one nature may pass by words which are proper to pass things of another nature 44 45 Eliz. rot 125. A devise of lands and tenements will pass leases for years if there be no other lands to pass by those words in the place expressed in the Will and so prayed Iudgement for the Defendant Verdict Roll chief Iustice asked what he said to the exception that it is not found that the Testator dyed seised of the tithes without doubt it had been ill upon a Demurrer therefore see if you cannot help it by the notes by which the Verdict was drawn up But for the matter in Law me thinks it is a strong case that the tithes do pass for we are in the case of a Will where the meaning of the party shall be observed if it may be found out by any means though it cannot be collected ex vi Terminis and should it not be so here part of the Will would be void which may not be if we can make it otherwise by a reasonable construction But I will consider of the Verdict and do you consult with your notes Ierman Iustice The Verdict ought to find the dying seised and till I am satisfied from the Notes I will deliver no opinion Nicholas Iustice held both the devise good and the Verdict also but said it had been otherwise upon a Demurrer Demurrer Ask Iustice to the same intent Ierman Iustice It is clear that the Testator intended to devise the lands in Holford and it is a good devise but if the Verdict be imperfect it is for the Plaintif but if otherwise it is for the Defendant The Court would advise touching the Verdict Hayward against VVilliams Trin. 1651. Banc. sup Hill 1649. rot 824. THe Case was this a Feme was sued as a Feme sole but by the Sirname of her Husband Who may bring a Writ of Error who not she being then Covert The Feme appears and pleads and Iudgement is given against her and the Baron and Feme joyn in a writ of Error to reverse this judgement The question was whether the Baron who was a Stranger to the Record might joyn in the writ to reverse the Iudgement It was moved divers times and the Court advised and at last they said that a Stranger to a Record may not bring a writ of Error to reverse it but that is only where he may have another remedy to avoid the prejudice he may receive by it but in this Case the Baron hath no other remedy for his Wife is taken in Execution and by this means he shall lose her society And therefore reversetur nisi Antea Shann against Bilby Trin. 1651. Banc. sup Hill 1650. rot 1065. SHann brought an Action upon the Case upon a promise against Bilby Arrest 〈◊〉 Judgement in an Action upon the Case upon a promise and declares that in consideration that the Plaintif should surrender a Copyhold unto I. S. and his heirs according to the Custom of the Manor the Defendant did assume and promise to pay unto him 100 l. and that he did surrender the Copyhold into the hands of a Customary Tenant of the Manor according to the Custom of the Manor to the use of I. S. and his heirs and that the Defendant had not paid the hundred pound according to his promise and declares to his damage c. Vpon non Assumpsit pleaded and Issue thereupon joyned a Verdict was found for the Plaintif It was moved in Arrest of Iudgement by Latch of Councel with the Defendant that the Declaration is not good 1. Because it doth not set forth to whom the promise was made and if it do not appear to be made to the Plaintif it is nudum pactum for the promise here is the consideration 2ly The Consideration is Executory and the Plaintif doth not shew that he hath performed it and then he hath no cause of Action The Consideration was that the Plaintif should surrender a Copyhold to I. S. and his heirs according to the custom of the Manor and he only shews that he did surrender the Copyhold into the hands of a Customary Tenant according to the Custom of the Manor to the use of I. S. and his heirs and doth not shew that this surrender was presented at the next Court and so it appears not to be a good surrender Surrender for it is uncertain whether it shall be presented or no and till it be presented it is imperfect To which the Court assented and ruled against the Plaintif a Nil capiat per Billam nisi ◠c. In this case it was said that if a man covenant to convey lands Covenant it ought to be done at the charge of him that covenanteth to do it except the contrary be agreed Consideration And that if there be a double consideration alleaged for a promise if one of them be good and the other be not yet an action will lie upon the promise that is broken which was grounded upon these consisiderations Barcock against Tompson Trin. 1651. Banc. sup Mich. 1650. rot 444. A Writ of Error was brought by the Bail to reverse a judgement given against him upon a scire facias the Error assigned was Error brought by the Bad. that there was no Capias taken out against the principal and therefore the scire facias against the Bail is not good Hale answered that it was too late to urge this now for Error for the judgement is upon two nichils returned and cited 21 E. 3. f 13. 6 Roll chief Iustice said that two nichils is as much as a scire feci returned and it is no Error to give judgement upon it but it had been a good plea upon the scire facias to say that there was no Capias against the principal but now there
is a Iudgement well given Plea and it is too late to assign it for Error But the Court advised Postea Kerman against Iohnson Trin. 1651. Banc. sup Trin. 1649. rot 153. KErman brought an Action of Trespass and Ejectment against Johnson Special verdict in Trespass and Ejectment and upon a special Verdict found the Case was this A man devised to I. S. his whole estate paying his debts and Legacies and dies possessed of Goods and Chattels to the value of five pounds only and dyed also seised in fee of divers lands and was indebted forty pounds at the time of his death The question was whether the lands passed by the Devise Barry of Councel with the Plaintif argued that the lands did pass because that wills ought to receive a favourable construction And 2ly The intent of the Testator is to be considered who by the words all his estate did mean to comprehend as well his land as his goods and chattels for there is no restraint of the words here 7 Ed. 3.10 The word estate is a word of large extent and extends as well to the real as personal estate if it were in Case of grant much more in the case of a Will And there is another word used here to explain the Testators meaning to be to devise his lands as well as his goods and that is the word All which comprehends all manner of estates without exception Next if the land should not pass his debts and Legacies cannot be paid according to the express intent of the Testator and the intent of the party ought to be satisfied although the words be not proper because it is in a will though it might be other wise in a grant And whereas it is objected that the Iuries finding of the value of the debts and Legacies is to no purpose because the will cannot be helped by the averment of the Iury. I answer that averments if they stand with the will may be received to make the Testators intent to appear But besides this is not an averment only but a true stating of the Case to the intent to find out the Testators meaning 3ly The devisee of the land is not made Executor but Trustee or Devisee this is since the Statute of Devises 32 H. 8. The 2. question is what estate the Devisee hath in the lands I conceive he hath Fee simple because he hath all the Estate which must be the largest and that is Fee-simple Hob. rep pl. 280. The word whole goes both to the quantity and quality of an estate also And here the consideration that he is to pay all his Debts and Legacies is a good consideration to pass the fee-simple of his lands and though there may be a surplusage after the Debts and Legacies paid this hinders nothing for it is his intent that the Devisee shall have that surplusage and so he prayed Iudgement for the Plaintif Twisden for the Defendant argued that either nothing passeth by the Will or if any thing then only an estate for life passeth He agreed that improper words may sometimes pais things yet sometimes proper words will not passe things viz. if the intent of the party appear to be contrary 24 Eliz in the Earl of Northumberlands case A Devise of all his Iewels did not pass his Collar of Esses and his Iewels annexed to his Parliament Robes and the words here are not that he deviseth all his estate in his lands but his whole estate generally and if the words here should pass the lands yet the fee simple passeth not but only an estate for life in the lands which do pass nor do the words paying his Debts and Legacies cause the Fee-simple to pass for here is no likelyhood of any loss to the Executor for the words are not that he shall pay all his Debts and Legacies and if he be an Executor as the contrary appears not he shall not be charged with more than the personal estate will discharge The words do amount to a Condition and it is not found that there are any Debts or Legacies paid and so it is not performed and the heir may well enter into the lands in question for the Condition broken 2ly The Verdict doth not find how the lands are held whether in Socage or by Knights service and so it appears not whether they can be devised or no and they shall not be intended to be Socage lands Dyer f. 207. Hill 32 El. rot 2. and Pell and Browns case 3ly It is not found that the Testator dyed seised of the lands as it ought to have been and he prayed Iudgement for the Defendant Special Verdict Roll. chief Iustice to the second Exception to the Verdict answered that in a Special verdict it is not necessary to find whether lands be held in Sorage or by Knights Service and he said that the words in the Will do goe to the nature and extent of the estate as Barry urged and he doubted how the verdict shall supply the Will if it be defective for that is only to make the intent of the Will certain Adjourned to be argued again Postea Marshal against Ledsham Trin. 1651. Banc. sup MArshal as Administrator brings an Action of Debt for rent Arrest of Judgement in Debt and upon a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and takes exception that the Plaintif had not shewn by whom the Letters of Administration were granted unto him as he ought to do but only says that the Administration debito more commissa fuit But it was answered that it is too late to move this Exception after a Verdict for the Iury have now found that the Administration was duly granted and the Letters of Administration were produced in Court and therefore not necessary to shew who granted them Declaration and it was said that in a Declaration it is not necessary to shew by whom Letters of Administration are granted or to say they were granted by him Cui pertinuit or per loci illius Ordinarium But in a Plea in Bar it is otherwise for this is not the cause of the Action Plea and effect of the sute but to shew they have been in the Spiritual Court Judicium nisi pro quaerente was afterwards given Antea Giles against Timberley Trin. 1651. Banc. sup Mich. 1650. rot 176. AN Ejectione firmae vi et armis was brought in the Common Pleas Error to reverse a judgement in an Ejectione firmae and a judgement given for the Plaintif upon a nihil dicit and in a writ of Error brought in this Court to reverse the judgement the Error assigned was in the judgement which was entred thus Ideo consideratum est quod recuperet and the word Capiatur was omitted which ought not to be because the Action is a Trespass vi et armis Roll chief Iustice said It is an ill course they use in the Common Pleas to enter
the judgement so in this Action Iudgement for by this course the Plaintif shall gain his possession of the land and the Defendant cannot bring his writ of Error until the writ of Enquiry returned and the Iudgement perfected Error which it may be will never be for when the Plaintif hath gotten possession of the lands he will little regard the damages Therefore let the judgement be reversed Antea Elyott against Blague Trin. 1651. Banc. sup ELyott brought an Action upon the Case against Blague for speaking these words of him viz. Thou art a Bastard getting Rogue Arrest of Iudgement in an Act on for words and hadst a Bastard at Oxford and art a pocky rogue and for ought I know thou hast filled my Bed full of the French pox and no such pocky rogues shall lie with me Vpon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words were not actionable because some of them were adjectively spoken and others uncertain and some of them clearly not actionable But Twisden answered that if the words were taken together as they were spoken they were very scandalous and actionable and cited one Colyers and Lydyers case 1 Can To which the Court agreed and ruled the Plaintif to take his judgement except better cause should be shewn Custodes against Iinkes Trin. 1651 Banc. sup SErjeant Bernard moved to discharge an Order of Sessions made against a Feme Covert to keep a Grand child of hers To discharge an Order of Sessions Order of Sessions because a Feme Covert was not bound by such an Order Roll chief Iustice answered that her Husband is bound to keep his wifes Grandchild by the Statute but in regard that the Husband is not charged by the Order but the wife who is covert is only charged Therefore let the Order be quashed Trotman against Standard Trin. 1651. Banc. sup Trin. 1650. rot 1768. IN an Action upon the case a special verdict was found Special verdict in an action on the case upon which the case fell out to be this Two being seised of lands in Fée did make a charter of feoffment unto two others and to their heirs and in the deed was a letter of Attorney to enter into the lands in the name of the seoffors and make livery and seisin according to the effect of the deed and livery of seisin was made to one of the Feoffees by the Attorney in the absence of the other Feoffee The question was whether here were a good livery and seisin or not 2ly Whether the letter of Attorney was good or no in regard it had false latin in it for the letter of Attorney was made by two and the words of it are pro me in nomine meo to make livery which are words of the singular number whereas they ought to be of the plurall Hales as to the 2d question held the letter of Attorney good enough because the authority given to the Attorney proceeds from both the Feoffors and therefore the words shall be intended to be the words of both of them as spoken by them severally And he also argued that the letter of Attorney was well executed to both the Feoffees because it was by deed and he cited 15 E. 4 f. 18. and he said if the livery had been made by the Feoffor himself it had been good without question and there is no difference between that and our case because it is made according to the effect of the deed and the Feoffee who is present is Attorney for the Feoffee that is absent to receive livery for him and the effect of the letter of Attorney is executed although the words are not Cooks Lit. f. 5. and Hoxon and Polts case in the Exchequer 34 Eliz. Boltons case Livery made to the husband was held a good Livery to the wife also Latch of Councel on the other side made two questions 1. Whether here was a good authority 2ly Whether it was well executed For the first he argued that here was no authority given to the Attorney to enter into the lands in the name of both the Feoffors for the words are that he should enter in nomine meo which cannot comprehend both of them the words being in the singular number and he agreed that Livery made by the Feoffor himself to one in the name of both had been good but here the livery is by Attorney and an Attorney hath nothing but a bare authority given him which ought to be strictly pursued especially it being to passe away an Estate He also took exceptions to the special verdict and said that the tryal upon which the verdict was found was directed out of the Chancery to discover a fraud and the verdict finds nothing according to the direction and so it ought to be set a side besides the verdict in it self is incertain for it is of 300 Acres of land generally which is incertain and so the Plaintiff can have no Iudgement for the Declaration warrants not the verdict for the Declaration mentions Houses and Cottages besides the 300 Acres of land 2ly The verdict doth not find the date of the Indenture and the Title to the land is to commence a die datus Hales answered 1. It shall be intended the day of the date 2ly It shall take effect after the delivery if there be no day of the date expressed And to that exception to the verdict that there are not so many Acres conteined in it as are expressed in the Declaration he answered that the Iudgement shall go to all which is land in kind only and shall not extend to Houses and Cottages and there appears to be a residuum or surplusage Verdict Roll chief Iustice said that it is incertain by the verdict what lands are meant for there are 400 Acres of land and four messuages and four Cottages and 40 Acres of medow in the Declaration and so there appears to be a residuum besides the land found in the verdict which makes it to be incertain what is found And though it should be a verdict for part and be uncertain for the rest although the Plaintiff will relinquish his damages for the rest this will not help it for there must be two Iudgements and the verdict is ill as to that which is found yet he held that it might be good without relinquishing the damages at all because the verdict is good for so many Acres as are in the Declaration and it shall be intended that the Iury mistook the number of the Acres and intended by the verdict no more than the arrable land Ierman and Nicholas Iustices doubted whether there be a verdict at all because the Iury have not found the things conteyned in the Declaration Roll chief Iustice and Nicholas mutate opinione held the verdict good but said it would have béen otherwise upon a demurrer and it was said that if one declare for 40 l. and the
verdict finds 100 l. the Plaintiff may relinquish 60 l. and have Iudgement for the rest Ask Iustice said that his opinion was that the verdict is incertain and conceiveth that the Iury intended all in the Declaration The Court took time to advise Afterwards Iudgement was given for the Plaintiff Fitton against Richardson Trin 1651. Banc. sup THe Court was moved for a prohibition to the County Palatine of Chester For a prohition to the County Palatin of Chester upon a surmise that they did proceed in the Court of equity at Chester touching the payment of rent reserved upon a lease for years which is a matter tryable at the Common Law and not in a Court of equity The Court answered we will see the Bill whether there be any matter of equity laid in it or no for if there be we will not grant a prohibition and let us also see some presidents if there be any for granting of a prohibition in such cases Powis who moved for the prohibition replyed That in Chester they hold two Courts one for matters of Common Law and another for matters of equity and so they ought to observe the due proceedings in each Court according to the nature of the cause 2ly This Court of the upper Bench is the superintendent Court over all other Courts and a writ of Error lyes out of this Court to Chester and by consequence a prohibition also to restrain the Court of equity there if they shall proceed irregularly 3ly There would otherwise be a faller of justice for the Court of Chancery here cannot grant a prohibition because the matter they proceed in there is no matter of equity Nat. brev f. 44 H. I. Cook rep Corbets case Hob. rep case 98. Owen and Holts case And though a writ from hence doth not run there nor in Wales yet a prohibition is grantable to Wales and therefore why not to Chester Mich. 2. Jac. B. R. a habeas corpus was granted to the County Palatine of Durham and to Barwick and Trin. 1650. C. B. rot 1966. in Iones and Lennards case a prohibition was granted to Chester Nicholas Iustice cited a case to be adjudged in this Court by Cook chief Iustice that it will not lye de brevi ordinario but in Wales it will ly Hales answered that there is more here than matter of equity and writs mandatory will lye in all places Roll chief Iustice said that Chester hath a Court of upper Bench and they may grant a prohibition there and it appears not to us whether they will grant it or not Prohibition so that we know not whether we need to intermedle Hales replyed that every one is bound by the Common Law and therefore writs mandatoryly at the Common Law which generally concern men as subjects and not concerning private things And 1. It is to be considered that Chesters jurisdiction is derived from this Court and so it is supposed to be subordinate to it and is to be regulated by it 2ly When the matter concerns common right it is not affixed to Chester because it concerns men as subjects at large 20 Iac. Grigs case C. Banc. And this Court sat in Chester in the 22 year of Ed. 1. as may appear by the roll Hill 31. Mich. 29. E. 3. rot a habeas corpus was granted to Durham and the liberty seised into the Kings hands for disobeying it and this Court is the conservator of the liberties of Chester Roll chief Iustice demanded can we grant a prohibition to the Court of equity in Ireland Prohibition If there did appear to be any failer of justice here we would grant a prohibition but there appears not any failer for it may be the party may have a prohibition in the upper Bench there Therefore it is good for us to hear the other party and in the mean time we will advise and then let us see the bill in Chancery In this case Halâ—s said that a prohibition had béen granted to the Lord Maiors Court of London Style against Tullye Trin. 1651 Banc. sup Hill 24. Car. rot 587. SIr Humphrey Style brought a writ of Error to reverse a Iudgement given against him in an Action of debt upon an obligation in the Common pleas for Tullye and Acton Executors of the last Will and Testament of one William Tullye Error to reverse a Iudgment in debt upon an obligation The case was this Sir Humphrey Style and one Thomas Brook were joyntly and severally bound unto William Tullye in an obligation of 120 l. for the payment of 60 l. at a certain day After the day of payment and the mony not paid Thomas Brook makes his Will and makes Mary Brook his wife his Executrix and dyes afterwards William Tullye makes his will and makes Tullye and Acton the Defendants in the writ of Error his Executors and dyes and by his will he releases unto Mary Brook all the debts which Thomas Brook her husband did owe unto him at the time of his death Tullye and Acton prove this will and after bring an Action of debt against Sir Humphrey Style in the Common pleas upon the obligation of 160 l. Sir Humphrey Style demurs to the Declaration and for cause shews that William Tullye by his will had released the Debt to Mary Brooks and upon this demurrer Iudgement was given against Sir Humphrey Style and thereupon he brings his writ of Error wherein the question was whether the debt was released by the will or no Latch of Councel for Sir Humphrey Style argued that here was an actual release and he cited 21 E. 4. f. 8. and a case Trin. 10. Car. and said that a will amounts to a release although it be not made of incorporeal things and the assent of Mary the Executor is not necessary here for this is not like the assent to the accepting of a Legacie and a debt due upon an Obligation made to the Testator is not assets in the hands of an Executor untill it be recovered and this is more than in the nature of a Legacy and here was a great personal Estate and no other creditors are deceived by this release and a devaslavit cannot be here supposed 19 H. 8. Dyer 8 E. 4. f. 5. Dyer 139 Cranmers Case and here is only an exoneration of a thing and no donation of any thing by this release Serjeant Hen. Clark of Councel on the other side argued that the debt was not discharged by the will because this release made by the will cannot take effect till after the death of the Testator and so not at all and such a release was revokeable by the Testator during his life and therefore it cannot be said that it was ever an absolute release But if this release had been in the realty it might peradventure have béen otherwise but it is not so here for the debt now rests in the Executor and it is a devastavit in the Executor to release it for this is but
heir and an authority cannot divest them out of him this is not like to the surrendring of Copyhold lands into the hands of the Lord for such a surrender cannot be revoked but this authority may be revoked But which is more the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor but only by way of recital which is not good for they ought to have been found to directly nor doth it appear that they were customary Tenants at the time of the admittance of the party neither is there any possession or title found in the Defendant and so the Plaintif having primer possession the Defendant is culpable neither is it found that the Customary Tenant who gave this authority had an estate in fee-simple in the lands and if he had but an estate for life he could not make such a Letter of Attorney neither is the authority given warranted by the Custom and so he prayed judgement for the Plaintif Wilmot for the Defendant As to the authority he said that it was good and did well enough survive the party that gave it because it is supported with a special direction from the party that gave it 1 H. 7.8 and this is the reason that an Executor may sell lands of the Testator after his death viz. because his authority is so supported 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage and therefore shall not now be admitted to take it But besides the authority here given is more than a bare authority for it is backed with the circumstances of time persons and of a Custom which is not of a slight esteem in Law and by such a Custom which is very reasonable for it is but to enable the party to dispose of his own lands and far more unreasonable Customs than this are allowed in our Law as that in Kent for an Infant of 15 years of age to have power to sell his lands neither is this Custom contrary to any positive rule of Law for it is here to create the authority to begin after the parties death that created it and so it is not to determine with his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and this Custom extends but within the Manor which is but to a small compass of ground and so the publique is not much concerned in it and the case of 17 Car. in this Court Bambridge and Whaddons case differs from our Case for that was not supported with a custome as this is And it doth appear by the Record that Dalby the Attorney is a customary Tenant and the admission is also found by the Verdict to be secundum consuetudinem Manerii and so that is well enough and then one cannot gain a Copyhold estate by disseisin and so no primer seisin shall be intended as was urged on the other side and it is also found that the Copyholder was seised Roll chief Iustice It will be a hard matter to maintain the Custom Custom if it be not found that the Copy-holder was seised in fee of the Copyhold lands 2ly It is not here found that the land is demisable according to the will of the Lord and so it may be free land and then the custom doth not extend unto it nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants Disseisin And the primer possession will make a disseisin here by the Defendant if the custom be not-well found and so judgement must be for the Plaintif Devise And I cannot see how the Custom can be good it being against the rules of Law Surrender A man cannot devise Copyhold lands and this case is worse but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise for it is a hard case and my Brothers have not been attended with Books Mich. following Iudgement was given for the Plaintif nisi It was moved again and the Court would advise Postea Batchelour against Parsons Trin. 1651 Banc. sup Mich. 1652. rot 381. BAtchelour brings a writ of Error to reverse a Iudgement given against him for Parsons in an Action of Debt in the Common Pleas and the Error assigned was Error to reverse a judgement in debt that there are two Declarations in the Record one in the Emparlance Roll the other in the Plea Roll and the Original certified upon the writ of Error doth not warrant the first Declaration for it was filed after it Hales answered that the Record is good enough if the Original dowarrant the last Declaration for this is the common course used in the Common Pleas as the Clarks there do inform me there are many Cases like this in the Common Pleas. Wild of Councel on the other side answered that this is a strange course for they ought first to file the Original because it is the beginning and ground-work of the sute and it not being so done here the Iudgement is given without an Original this is a judgement by default and the imparlance is part of the sute Roll chief Iustice Imparlance Intendment Certiorari The Imparlance Roll is the principal part of the sute and to consound things by intendment that the imparlance may be touching another sute is not good and it matters not what the Custom is in the Common Pleas if it be against Law and both Rolls ought to be certified here Ierman Iustice ad idem Roll chief Iustice All the Record in the Common Pleas which is in the custody of the chief Iustice there ought to be certified by him upon the Retorn of the Writ of Error and here the Imparlance Roll is in his custody and therefore he ought to certifie it and if there be two writs of Error Error and one is good and the other naught we will take the best to affirm the judgement The Original ought not to be fitted to the Declaration but the Declaration to the Original because the Original is the foundation of the sute and therefore the course used in the Common Pleas is a preposterous course Original viz. to declare against the Defendant and after to file an original against him to warrant the Declaration It is here certifyed to be one Record and how can we take the emparlance Roll to be part of the Record it being not certyfied with it and if there be variance between the emparlance Roll and the plea Roll Variance it is Error We will advise but we must not suffer new wayes yet we are loth notwithstanding to reverse Iudgements given in the Common pleas Therefore shew cause next term why the Iudgement should not be reversed Kirman against Iohnson Trin. 1651. Banc. sup IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found
declared Arrest of Judgement in an action upon the Case upon an Assumpsit that whereas there was a speech concerning mariage between her the Plaintif and Smith the Defendant in consideration that she the Plaintif would marry the Defendant the Defendant did assume and promise to her the Plaintif that he would marry her and that afterwards the Defendant in consideration that the Plaintif would discharge the Defendant of this promise the Defendant did assume and promise that he would pay unto her the Plaintif a thousand pound and that she did discharge the Defendant of his promise of mariage and yet the Defendant had not paid the 1000 l. according to his promise Vpon non assumpsit pleaded and a verdict found for the Plaintif It was moved in Arrest of Iudgement that there is mention of two promises in the Declaration and that it is incertain to which promise the Declaration relates 2ly That there is no temporal consideration alleged but only a promise to dissolve a Contract of Mariage which is a thing illegal and so no consideration Roll chief Iustice answered that here is a mutual promise made by both parties Promise Case and there have been divers actions of late times brought for this cause and they have been adjudged good and the engagement to marry is not meerly a a spiritual matter and this Action is not to compell the mariage upon the Contract but to recover damages for not doing it and it is like to a wager and here is a temporal loss and therefore a temporal Action doth lie But it was adjourned till next Term to be argued again and then judgement was given for the Plaintif for the Court held that the dis-engagement shall be intended to the party himself and here is no need to expresse notice given of it Postea Kenedy against Fisher Mich. 1651. Banc. sup KEnedy declared in an Action upon the case against Fisher for speaking these words of him he lost his Feet by the Pox Whether a Plea of privilege was to be allowed innuendo the French Pox The Defendant demurred to the Declaration and after imparled and then pleaded a plea of privilege Hales desired the opinion of the Court whether this plea were now allowable because the Books differed about it Roll chief Iustice answered that the plea is not allowable because there is but a privilege claimed by it and the Plea goes not to the jurisdiction of the Court Therefore let the Defendant plead in chief Starkey against Mill. Mich. 1651. Banc. sup Entred Trin. 1651. rot 170. STarkey brought an Action upon the Case against Mill upon two several Assumpsits Arrest of Iudgement in an Action upon an Assumpsit and obtains a Verdict upon both and entire damages are given It was moved in Arrest of Iudgement that one of the promises was not good because there was no consideration to ground it upon and so the damages being intire upon both the Assumpsits one failing judgment cannot be given The case was this The Father gave goods to his Son in consideration that the Son should pay the Plaintif in this action 20 l. It was urged that this can be no consideration for the Plaintif to bring his action because here is no debt due to him but only an appointment for the Son to pay money to him in consideration of the goods given him by his Father But Hales on the other side said that if there may be a debt by any intendment due to the Plaintif Coâ—sideration then the Assumpsit is good and here is a debt due to him therefore the Assumpsit is good Roll chief Iustice held that it is good as it is for there is a plain Contract because the goods were given for the benefit of the Plaintif though the Contract be not between him and the Defendant Case and he may well have an Action upon the Case for here is a promise in Law made to the Plaintif though there be not a promise in fact there is a debt here and the Assumpsit is good Ierman and Aâ—k Iustices agreed but Nicholas doubted But Iudgement was given for the Plaintif Cressit against Burgis Mich. 1651. Banc. sup AN Action of Debt was brought upon the Statute of 2 Ed. 6. for tithes Arrest of Iudgement in Debt upon the Statute of 2 Ed. 6. for tithes Vpon nil debet pleaded and a verdict and damages given for the Plaintif it was moved in Arrest of Iudgement that the damages given are for tithes growing upon 71 Acres of land whereas the Plaintif in his Declaration declares but for tithes growing upon 70 Acres of Land so that the damages are given for more than is declared for and contrary to the demand To this it was answered that this is but the mis-counting of the Iury and is not material Damages because by the whole Declaration it appears there was but 70 Acres and this is but a description by the Iury how the several parcels of land were sown viz. with what Corn. Roll chief Iustice said The Declaration is that the Defendant was seised of 70 Acres of Arable land and that so many Acres were sowed with Wheat so many with Oats so many with Messing so many with Beans and as to the 5 Aeres residue sowed with Barley which all amounts to 71 Acres and it ought to have been as to 4 Acres residue so that this is but a mis-counting of the Iury for the Iury cannot be deceived for the land is called but 70 Acres in the Declaration and no damage ariseth to any by this mistake To which the rest of the Iudges agreed and judgement was given for the Plaintif nisi Mich. 1651 Banc. sup THe Court was moved to reverse an Outlawry for want of Proclamation Motion to reverse an Outlawry Apparence the question was whether it may be done by Attorney the party himself by reason of infirmity of body being not able to come in person Vpon view of the Statute Roll chief Iustice said he must come in person otherwise it cannot be done yet the Court would advise Afterwards it was over-ruled that it could not be reversed except he come in person Drinkwater against Pack Mich. 1651 Banc. sup DRinkwater brought an action upon an Escape against Pack one of the Sherifs of London and obtains a Verdict against him Arrest of Iudgement in an Action for an escape It was moved in Arrest of Iudgement that the Plaintif declares that the party was in the custody of both the Sherifs and yet the Action is brought against but one of them the prisoner that escaped being in Ludgate in the custody of the Defendant Pack Latch answered that the Exception is not good because in Law the prisoner that escaped is in the custody of both the Sherifs Hales on the other side said that it doth not appear upon the Record that he was in the Custostody of both the Sherifs and it shall not be
in London and the Bill was found against him But Roll chief Iustice answered It cannot be granted upon a motion Good behaviour but you must prefer Articles against him here upon Oath and then you may move for it and if there appear cause in the Articles it shall be granted Mich. 1651. Banc. sup THe Court was moved for a writ to swear one in the Office of a Maior For a Writ to swear one in the Office of a Maior of a Town to which he was elected for the Borough of Trevenny in Cornewall because the old Maior did not swear him in due time as he ought to do but did adjourn the Court before it was done Roll chief Iustice answered that there is no president to swear such an Officer yet ordered that notice should be given to the Town and presidents to be brought into Court if any were to warrant it Whitway against Pinsent Mich. 1651. Banc. sup Pasc 1651. rot 61. A Man made a lease of lands for years by deed Demurrer to a plea in Covenants and covenanted that the Lessée his Assigns should enjoy them during the Term the Lessor made the Defendant his Executor dyed The Lessee assigns over his Term a Stranger enters upon the Assignee the Assignee takes 40 l. in satisfaction for his being ejected of the Assignor and afterwards brings an Action of Covenant against the Executor of the Lessor the Defendant The Defendant pleads the acceptance of the 40 l. of the Assignor in satisfaction of the wrong done him in Bar of the Action and to this plea the Plaintiff demurred Bar. The question here was whether the Action of Covenant did lye against the Defendant since that the Plaintiff had received 40 l. of his Assignor in satisfaction Roll chief Iustice said that here is a double Covenant one of the Lessor and the other of the Assignor and therefore the party may have two Actions Action and therefore he is not here barred to bring this second Action though he have barred himself by the acceptance of the 40 l. from bringing an Action against his Assignor and the Defendant hath not pleaded that the 40 l. was given in satisfaction of both the Covenants for then it had been otherwayes Ierman Iustice to the same effect That they are several Covenants by several deeds and both the parties are severelly bound and satisfaction given by one of them is not the satisfaction of the other And he said if Lessee for years assign over his Term the Lessor having notice thereof and he accept the rent from the assignee he cannot demand the rent of the Lessee afterwards yet he may sue other Covenants conteined in the lease against him as for reparations or the like The rule was for the Plaintiff to take his Iudgement nisi Mich. 1651. Banc. sup SErjeant Glyn moved for a certiorari to remove an endictment of forcible entry that was once before removed hither For a certiorari to remove an endictment and after sent down by a procedendo because the Iustices below will not grant restitution Roll chief Iustice answered There is a plea put in and in such case it is not usual to grant a certiorari yet it may be that it may be granted therefore let the other side shew cause on Monday next why it should not be granted Cantrell against Stephens Mich 1651. Banc. sup CAntreli brought an Action upon the case against Stephens for stopping his way in a Meoow called Madbrook in the parish of Redriff in Kent Arrest of judgement for an Action upon the case for stopping a way upon not guilty pleaded and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the Plaintiff as Lessee to the Haberdashers company of London claimed to have a way for them whereas they having let the land cannot have the way but the Lessée in possession 2ly The prescription is not rightly applyed for it ought to be for them to have a way pro tenentibus et occupatoribus suis which is not so here Twisden answered it shall be intended Tenants and Occupyers to the Haberdashers though it be not said suis Latch said that a prescription per que estate is good in an Action upon the Case because no land is claimed and Green on the same side said the exception taken was helped by the verdict Wild on the other side said that it doth not appear that the Tenant who brings the Action comes in by the Haberdashers who claim the way and so he cannot prescribe to have it Prescription and the prescription ought to be laid pro tenentibus subtenentibus which Roll chief Iustice denyed and said that it is laid that the Haberdashers were seised in Fée postea huc usque and so they have the Fée at the time and may prescribe but it had been better for the party to have shewed that he was their Tenant but it being after a verdict the question is whether it be not helped Vpon reading the Record Roll chief Iustice observed that it appeared not whose Occupyer and Tenant the Plaintiff is but only by way of argument but said the question is whether the verdict do help it and he inclyned it did not Verdict because the Action is brought by the Tenant who hath not entitled himself to the Action for he hath made only a title to the way in the Haberdashers Title but hath derived no Estate from them to himself At another day Roll chief Iustice said we must not take things by intendment and here is a failer in the very gist of the Action for the Plaintiff hath not entitled himself to the Action for he hath no interest for it appears not how he is Ocupyer of the land for he doth not say he is Ocupator suus and as he hath laid the Declaration the Company ought to have brought the Action Ierman Iustice to the same effect and said that upon a demurrer it had been cleerly naught and the verdict here doth not help it for no title appears for the Plaintiff and the verdict cannot give him that he had not before Nicholas and Ask Iustices to the same effect Roll If it had been Ocupator suus I doubt it would not make the Declaration good because it shews not by what title So The rule was nil capiat per billam nisi Tayler against Web. Mich. 1651. Banc. sup Hill 1650. rot 240. IN an ejectione firmae upon a lease for 7 years there was a special verdict found Special verdict in an ejectione firmae and the questions in the Case grew upon the words of a Will that were false orthography viz. I do make my Cosen Giles Bridges my Solle Ayeare and my Yexecutor meaning my sole Heir and Executor Powis of Councel with the Plaintiff held that the Will was good to make Giles Briges the Testators Heir and Executor notwithstanding the mis-writing of the words
upon them according to the fact found upon the Record because it was a foul riot The Court answered they are found guilty of the riot Fine and therefore the fine cannot be lesse than ten pounds at the least for the principal there being a verdict in the case and so let it be and 4. marks a piece for the rest For we must preserve the peace of the County Baker against Smith Mich. 1651. Banc. sup THe case of Baker and Smith formerly spoken to was again moved In answer to a matter spoken in arrest of judgement and Maynard answered the exceptions offered in arrest of Iudgement 1. It was objected that here was not a mutual promise set forth between the partyes for there is no agreement made by the Feme for it is only said that she consented to marry the party which is not a binding agreement To this he answered here was a mutual and binding agreement though it be not so plainly expressed in words as it might have been 3 H. 6.36 37. A verbal promise may be discharged by words and so it is here London and Stokes case Trin. 10 Car. rot 236. Next it is not necessary here to give notice of the discharge of the promise though if there be notice it is well enough because the thing to be done upon it to wit the payment of the 1000 l. is certain and the discharge shall be intended to be in the presence of the party to whom it is given for the Declaration is exoneravit ipsum which shall not be intended in his absence Pasch 10 Car. Harvy and Inglethorps case and Mich. 8 Iac. Martin and Wilbie Hodges and More Pasch 1 Car. Banc. Reg. 7 Iac. Bradlyes case 14 Iac. Beedly and Goodrose Latch on the other side argued that here is no binding promise on the behalf of the woman to marry with the Defendant and so the discharge of it can be no consideration for this is not a reciprocal but a bare acceptation of the promise made by the other and an action of the case lay not against her if she had refused to marry with the Defendant because here is no repromission made by her 2ly It appears not that the discharge was in convenient time for it was 2 years after but admitting that to be so yet here is no notice of the discharge and that is necessary to be given and it shall not be intended to be given without shewing it for the Declaration ought to be certain and here is no inducement in it that there was any notice given in his presence and if it were given in his absence he ought to have notice given him of his discharge else how should he know it and it were unreasonable to charge him if he had no notice and by a third person he cannot receive notice as it is in the Cases put by Mr. Maynard on the other side In the Case of Peck and Ingram in this Court adjudged that the party ought to have notice when the Feme left her Fathers House and came to such a place Roll chief Iustice said here are two promises 1. The Feme assumed that if the Defendant would marry her she would consent to him Coâ—sideration Promâ—se in Law Mutual Coâ—tract Implication and here is a consideration although there be not an absolute mutual promise for it is a promise in law and the Action may be laid by way of consideration or by way of mutual Contract 2ly Here is but a promise de futuro and there may be a temporal loss although the thing to be done viz. the mariage be spiritual And the dis-engagement of the party doth not imply notice but the demand of the 1000 l. now implies a discharge nor can the party here take notice of a third person and therefore it is necessary to give him notice Notice for where the party cannot take notice from any but the party himself there notice must be given him Ierman Iustice held here was a good mutual promise to raise a consideration and by the words exoneravit ipsum it shall be intended to be to the person himself this implyes a notice especially it being after a verdict Nicholas Iust much to the effect as Roll chief Iust but he doubted whether the words do imply a personal notice for it may be it was in his absence and the verdict will not help it and so there can be no judgement Aâ—k Iustice said here was a good promise but the words exoneravit ipsum do not imply a notice so the Court was divided and would advise Hume against Hinton Mich. 1651. Banc. sup HUme brought an Action upon the Case against Hinton Aâ—rest of judgement in an Action upon the case upon a promise and declared That whereas the Son of the Defendant did in his life-time owe unto the Plaintif 8 l. and dyed intestate the Plaintif did demand the said 8 l. of the Defendant being Mother to the intestate whereupon she being satisfied of the justness of the debt did assume and promise unto the Plaintif that if he would stay for the money till Mich. next that then she would pay it Vpon non Assumpsit pleaded and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement that here was no consideration to ground the Assumpsit upon because it was not the debt of the party that assumed to pay it neither was she Executor or administrator nor consequently lyable any way by law to pay it and therefore an Assumpsit to pay a remediless debt if the Plaintif would stay for it is no good Assumpsit as in 6 Car. in this Court in Morgans Case An Assumpsit to pay the rent of the land behind if the party would forbear to distrain Corn in the shocks was adjudged no good Assumpsit because such Corn is not distreinable and it appears not here what person the Son was or where he lived or that he either had or lest any goods and the meer ground of the Action is the piety of the Mother and no other matter And here appears no person liable to pay this debt neither plainly nor by intendment and the Ordinary is not chargeable if no goods come to his hands And 2ly There is now no Ordinary for it is taken away by the Parliament and 9 rep Bains case is not like to this case neither is Iones and Smiths case Trin. 8 Iac. rot 192. like to this case for there was a person liable to be sued but it is not so here so that this is a stronger case But if there should be a good consideration yet the averment of the performance of it is not good for it is not certain how he stayed Wild for the Plaintif held that here is a good consideration because the Plaintif is hereby tyed not to sue any person whatsoever for the debt till Michaelmas and so it is a prejudice to him to forbear And it shall be intended
Testator meant Heir of his Lands and not the element of Ayre or a year as hath been strangely objected and would prove a ridiculous construction Osborns case 10. rep in Thyns case in this Court a demand of dower de capella although the word were of doubtfull construction in it self yet by the subject matter it was held to be made certain enough so the word Ayeare here shall receive construction according to the subject matter and the coupling of it also with the word Yexecutor which is also falsely written shews the Testators intent For answer to the main objection viz. that in 6 Car. there was a decree made in the Court of wards by advise of the Iudges that this was a void and sencelesse Will I say that that decree is not of so great waight as is a Iudgement given in a Court of judicature at the common Law and this was but an opinion delivered in Court where the Iudges were not Iudges and the decree was made as I am enformed because they believed the Will to be nonsence Heir the contrary whereof doth appear by my argument The Court enclyned strongly that the Testator intended to make the Devisee Heir of his lands and that the words can receive no other construction for other constructions would be very strange Will. and forced and the party that made the Will is to be considered as one that was inops consilii and also that wanted a scribe and his intent seems plain and shall not be taken according to the Civill law and if it should the word Heir will as well extend to the lands as goods Adjourned to be argued again Kymlock against Bamfield Mich. 1651. Banc. sup Mich. 24. Car. rot 592. KYmlock brought an Action upon the case upon an indebitatus assumpsit against Bamfield for making of apparel The Defendant pleaded Demurrer in an action on the case upon an indebitatus assumpsit that he became bound in a Bond of 60 l. to the Plaintiff in satisfaction of the Debt and that the Plaintiff accepted of it the Plaintiff replyed that he did not accept of it to this replication the Defendant demurred shews for cause that the Plaintiff had tendred an issue upon the non acceptance of the Bond whereas it should have been that the Defendant non devenit tentus On the other side it was said that it is well enough that it is sufficient to say non accep it and it is not necessary to say he refused the obligation and though the replication be not good yet the plea is also naught and therefore no Iudgement can be for the Defendant The plea is quod devenisset tentus whereas it ought to be devenit tentus And 2ly He shews not in what sum or place nor that he became bound in satisfaction Roll chief Iustice said that by entring into Bond the former contract is gone if you do not refuse it and it is not sufficient to say you did not accept of the Bond for you may yet accept it if you please and the party cannot plead non est factum Contract if you bring an Action upon it until it be absolutely refused and the contract here is turned into a Bond and the law determines the contract Plea and it is not all one with pleading of the acceptance of a horse in satisfaction or or any other thing as a collateral satisfaction and the Plaintiff ought to shew that he refused the Obligation and doth yet refuse it And here is a negative preignans Negative preignan◠for you imply by saying that you accepted not the Obligation in satisfaction that he gave you the obligation and you might have said Non devenit tentus and for the other exceptions they are to no purpose Discontinuance And therefore Iudgement ought to be given against you but by the favour of the Court we can give you leave to discontinue your Action Harding against Freeman Mich. 1651. Banc. sup HArding brought an Action upon the Case against Freeman and declared against him Arrest of Iudgement in an Action upon the case upon the sale of a Horse that the Defendant did sell unto him a Gelding and upon the sale did falsely affirm unto him that the Gelding was his own Gelding and that he bred him of a Colt whereas he bred him not of a Colt neither was it his own Gelding but another mans Gelding and so concludes to his damage Vpon not guilty pleaded and a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement 1. That in this sale of the Gelding the Defendant had made no warranty of him and therefore though the sale were not good yet the Action lies not 2ly The Plaintif doth not declare that the Defendant knowing the Gelding to be another mans did affirm him to be his own and so here doth not appear to be any fraud in the sale Twisden answered that the words are sufficient to imply a disceit though they express not that he knowing it to be another mans horse did make that affirmation for the words are that he did it falso et fraudulenter and affirmed the Horse to be his own But the Court stayed the Iudgement for they said that here is no direct affirmation but only an intendment that scienter fecit yet afterwards judgement was given for the Plaintif Davis against the Lord Foliot Mich. 1651. Banc. sup DAvis brought an action of Assault and Battery and wounding against the Lord Foliot and had a verdict against him and a writ of enquiry of damages For a new writ of Enquiry of damages and upon the writ of Enquiry 200 l. damages were found The Plaintif moved the Court for a new writ because by reason of the wilfulness of the Iury the damages were found too small Twisden on the other side urged that it could not be because there was no miscarriage proved in execution of the writ but it appears to be well executed Roll chief Iustice answered though we grant not a new writ yet we can increase the damages upon view of the wound and here appears to have been a foul Battery by the dagger produced in the Court Damages increased by the Court. and by the party himself that is wounded and it is not fit that a wilfull Iury should prejudice the party therefore either consent to a new writ or else bring your witnesses on both sides and we will hear the motion again At another day Wild said the Court cannot increase damages upon a view of the party if he be not maimed and here is no maiming but only a Battery and wounding But the Court answered that they would advise upon that point for it séems there is the same reason for encreasing of damages in both cases At another day Green moved for increase of damages upon the view and urged 9 H. 4. f. 1. 3 H. ◠◠10 H. 4. and Bret and Middletom case in this
Court Twisden on the other side confessed the Books were so but here the Battery is not apparent and the wound is internal and not to be viewed by the Court. Roll chief Iustice said 3 things are considerable 1. whether the Court can increase the damages 2ly Whether the wound be apparent and 3ly Whether the damages given be too small The Court upon view of the party and examination of Chirurgions and Witnesses on both sides upon Oath did conclude that they might increase the damages and that the wound was apparent and that the damages were too small and therefore they increased them to 400 l. and said they would not encrease them more because they could not inquire into all the circumstances of the fact as the jury might but they thought fitting to encrease them in some proportion because the offence was great and such outragious Acts are not to be slightly punished VVallis against Bucknal Hill 1651. Banc. sup VPon a special verdict found in an Ejectione firmae the case sell out to be this Special Verdict in an Ejectione firmse A Copyholder of inheritance made a Letter of Attorney to two joyntly and severally to surrender his Copyhold lands in Fee to certain uses after his death according to the Custom of the Manor The question made by Ellis of Councel with the Plaintif was whether the Custom was good or not he argued that it was not a good Custom In Sir Iohn Davis Reports it is said a Custom must be reasonable and a Custom may be reasonable when it is but against a particular Law and not a general Law but the Custom here thus to convey land is against a general Law Particular Customs may be against publique interest pro bono public but if they be not as in our case they are not they are not good Pro bono publico Next an authority given ought to be Countermandable and to determine at the death of the party but this is not so and therefore it is no good authority 19 E. 3. f. 5. 2ly None can give an authority to another to do a thing which he could not do himself but here it is otherwise and therefore it is not a good authority 3ly By the death of the Copyholder the lands are setled in the heir and this authority given shall not devest them and this is not like the surrendring of lands into the hands of the Lord for a surrender cannot be revoked but this authority is revokable Next the Verdict doth not find that the 2 Attorneys are Customary tenants but only by way of recital which is not good nor doth it appear they were customary tenants at the time of the admittance and here is not found any possession or title in the Defendant and so the Plaintif having primer possession the Defendant is guilty neither is it found that the customary Tenant had see-simple in the land And if he had but an estate for life he could not make such a letter of Attorney Also the authority given is not warranted by the Custom set forth Wilmot of Councel with the Defendant said That this authority here is supported with a special direction which may survive the party that gives it 1 H. 7.8 And an authority may survive the party that gives it else how can an Executor sell lands by the authority given unto him 21 E. 4. f. 8. 31. E. 1. Fitzherb 45. and as for the heir he hath neglected his advantage it he had any and cannot now take it But besides the authority here given is more than a bare authority for it is backed with circumstances of time and person and here is also a Custom to support it and this Custom is a reasonable Custom for it is but to enable a man to dispose of his own lands and there are far more unreasonable Customs than this allowed in our law as the Custom of Kent for one of the age of 15 years to be enabled to sell his lands and this Custom is not against any positive rule of Law for the custom is to create the authority to begin after his death and so it is not to determine by his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and it is extended but within a small compass of land and so cannot be very prejudicial to the publique And Bambridge and Whaddons case 17 Car. in this Court cited on the other side doth differ from this case for tâ—ere was no Custom to support it And it doth appear here by the Record that Dalby the Attorney is a customary Tenant and the admission here is found to be secundum consuetudinem Manerii And one cannot gain a Copyhold estate by disseisin and so here can be no primer seisin intended and it is found the Copyholder is seised Roll chief Iustice said It will be hard to maintain the Custom Custom if it be not found that the party was seiâ—â—d in see of the Copyhold lands But 2ly it is not here found that the land is demisable according to the will of the Lord and so it may be free land then the custom doth not reach it Neither is it found that the 2 Attorneys were Copyhold Tenants and the primer possession here will make a disseisin by the Defendant if the Custom be not well found and then it is for the Plaintif and I cannot see how the Custom can be good it being against the rules of Law for a man cannot devise a Copyhold and here the case is worse Devise but he may surrender to the use of his last Will and Testament At another day Wilmot to the Exception taken That it is not found that the two Attorneys were Tenants of the Manor said there is so much found as shall make them be presumed to be Tenants of the Manor for it is found that the party is admitted secundum consuetudinem Manerii which cannot be a good admittance if they were not Tenants Roll chief Iustice answered to be admitted secundum consuetudinem goes â—o the Admittance not to the Letter of Attorney But we will advise At another day Twisden prayed judgement for the Plaintif and insisted upon the Exception that the two Attorneys were not found customary Tenants for one of them is not mentioned at all and the other is found so only by way of recital and so they have not entitled themselves to the Custom and then the Defendant hath no title The Court ruled to shew cause Saturday following why the Plaintif should not have judgement Antea Custodes against Tawny and Norwood Hill 1651. Banc. sup TAwny and Norwood were jointly endicted for blasphemous words severally spoken by them Endictment for speaking blasphemous words upon the late Statute made against blasphemy and were convicted the parties being removed hither by Habeas Corpus It was urged that the Endictment was not good because it was joynt whereas the words being
spoken by them severally they ought to have been endicted severally for the words spoken by one of them cannot be said to be the words of the other But Roll chief Iustice said The Endictment was good enough though it be joynt as it is in the case of several perjuries and several batteries where a joynt Endictment doth lie although it do not for several felonies and here the Endictment is upon one and the same Statute and for one and the same offence and therefore the judgement given upon it is also good and it shall be taken reddendosingula singulis i. the words to each of them as they spoke them Floyd against Morgan Hill 1651. Banc. sup A Writ of Error was brought to reverse a Iudgement given in an Action of Trespass for taking away divers goods Error to reverse a judgement in Trespass for taking away goods Anglice and the Error was that there were the words instrumentum ferri used in the Declaration to express divers things viz. de quodam instrumento ferri Anglice a Grioiron de quodam instrumento ferri Anglice a Brandiron et de quodam instrumento ferri Anglice a Mortar whereas there are proper Latin words for them therfore are not to be so uncertainly described Darcy against the writ of Error said it was certain enough as they were described cited the Reg. f. 45. and said if it be not certain in the Latin description Description yet the Anglice helps it Roll chief Iustice demanded what say you to the Case of instrumentum ferri Anglice a Horse-lock adjudged naught lately in this place and there are proper Latin words for the things you describe which you ought to have used therefore this description is not good for where a Latin word signifies many things there an Anglice is proper to be added to it otherwise not and if there be no Latin word to express a thing one may invent a word and interpret it with an Anglice but it is not so here therefore let the judgement be reversed nisi c. Postea Keightley against Nodes Hill 1651. Banc. sup Trin. 1651. rot 869. A Writ of Error was brought to reverse a judgement in a Trespass vi et armis at Doncaster And the Error assigned was Error to feverse a judgement in Trespass vi et armis That the Plaintif declared that the Defendant took certain Cows of his out of the Iurisdiction of the Court and brought them within the jurisdiction and there disposed of them to his own use In which case in regard that the taking of the Cattel which is the ground of the Action was without the jurisdiction of the Court although the disposing of them was within yet the Court had no iurisdiction of the cause To which Roll chief Iustice agreed Trover and said if the Action had been a Trover and Conversion if had been good but being a Trespass vi et armis it is naught and therefore let the Indgement be reversed nisi Cottrell and his VVife against Theoballs Hill 1651. Banc. sup THis case was again moved spoken unto by Turner Iudgement prayed in an Action upon a promise who prayd judgment for the Plaintif because as he conceived the Action was well brought by the Husband and Wife and to prove it he cited these books 39 H. 6. f. 45.9 H. 6. f. 4. Nat. Brev. 131.28 H. 8. Dyer f. 21. Pasch 5 Car. Brown and Floyds case Pasc 13 Car. Oldhams case and said That the consideration here did move from both parties and not from the Husband only 2ly It is not necessary to give the Defendant notice that his wife had attained to the age of 18 years at which time he was to pay the money for he might take notice of it himself Latch on the other side prayed that the Iudgement might be arrested because the promise was made to the Husband only that he would make good the Legacy given to his wife by her Father and give 40 l. more to the Baron and Feme and the Husband is only to have the benefit of the promise and the consideration namely the mariage moved only from the Husband and therefore the Action is to be brought by the Husband only and not by the Husband and his wife and this promise is not like a promise made to a servant to pay money to the use of his Master and it is not here laid that the promise was made to both as it might have been and it is not reasonable to turn over the wives portion for which the Husband hath made her a joynture unto the Feme for if it should have been so the wife might have released it before the mariage and the Case cited of Rippon and Norton was otherwise laid 37 Eliz Banc. Reg. 2ly Here ought to be notice given when the Feme came to her age of 18 years for here the Assumpsit is to make good a Legacy which was to be paid to her at such an age and he ought to give notice of her age as he ought to an Executor and this case is not like as where one binds himself in an Obligation to pay another such a sum when he comes to such an age and the legacy here is to be made good in that manner as the Executor is to pay it Roll chief Iustice said that the party is not bound to give notice Notice but the other must take notice at his peril But the promise is here laid to be made to the Husband only and though the money is to be paid to doth yet it would be inconvenient to intitle the Feme to it and here it was the folly of the Husband to joyn his wife in the Action for he might have brought it alone if he would Iovning in Action for he hath alleged that the promise was made to him alone and therefore the Action is not well brought and it appears by the Declaration that the Feme was of age before the mariage and so the notice is out of Doors The rest of the Iudges agreed with Roll chief Iustice in all and so the Court ruled a nil capiat per Billam nisi Antea Hill 1651 Banc. sup THe Court was moved to quash an Endictment because it was for a private Trespass To quash an Endictment for a private Trespass Endictment viz. for stopping an antient water-course and the Endictment doth not conclude ad commune nocumentum but ad grave damnum which shews it to be no publique nusance so he is not to be endicted But Roll chief Iustice answered A man may be endicted for a private Trespass but the party here hath made himself no title to the water-course and therefore let the Endictment be quashed Comport against Beech. Hill 1651. Banc. sup THe Court was moved on the Defendants behalf For a reference touching a Trespass That he was a very poor man and in making of a Ditch
his guardian and therefore let the Iudgement be reversed nisi Fortune against Johnson Hill 1651. Banc. sup THe Court was moved for an attachment against Iohnson upon an affidavit For an attachment for putting one out of possession that he had ejected one out of possession that was put in by a habere facias possessionem and that in a very riotous manner and had imprisoned the party so put out of possession and others Windham on the other side by way of answer said that the party came into the land by virtue of an eign Iudgement and an extent upon it Roll chief Iustice answered here is title against title therefore take your course in law for we will make no rule in it Crosthwayt and the Hundred of Lowdon Hill 1651. Banc. sup CRosthwayt brought an Action upon the Statute of Winchester of robberyes Arrest of Iudgement in an Action upon the Statute of Winchester for robbery against the Hundred of Lowdon for being robbed of 160 l. and had a verdict against the Hundred It was moved in arrest of Iudgement that the Action upon the Statute did not lye for the party that brought it for it appears that he was not robbed but that the mony was taken out of a portmantle which was carryed by the postboy and that only the Plaintiffs hand was upon one end of the portmantle so that the post-boy was robbed and not the Plaintiff But Roll chief Iustice answered Robbery Possession there is no question but that this was a robbery of the Plaintiff and it is all one as where my Servant is robbed in my presence and there the goods shall be said to be in my possession and so is it here and therefore let Iudgement be entred nisi Tayler and Web. Hill 1651 Banc. sup THis case formerly argued at the Bar and broken on the Bench Special Verdict upon the words of a will and some opinion delivered in it was again moved by Maynard and argued by him And he said that by the Will no land passeth because lands are not mentioned in it neither is there any necessary implication that the Testator intended to devise his lands for the making one his Heir and enjoyning him to pay an annuity doth not convey the lands to him and the Will doth not say that he makes him his Heir of his lands but generally his Heir which by the civill Law may be of goods and for the enjoyning him to pay the annuity this may be out of other lands in consideration of the personal estate given unto him In Danyel and Vblies case a gift made by a Feme coparcener of her purparty of land did not convey the lands in Fée In Marshes case the Father gave his lands to his two Sons to be equally divided it was adjudged there that only an Estate for life passed and here is nothing at all expresly given In Gilbert and Withers case Mich. 20 Iac. It was adjudged that there ought not to be made such a construction of a Will as is not agreable to Law And this is only a logical Will by way of argument and not a grammatical Construction or Interpretation and positive Will Roll chief Iustice answered to make a construction of a Will where the intent of the Testator cannot be known is intentio caeca sicca but here although the words of the Will be not proper yet we may collect the Testators meaning to be by making of the party his Heir that he should have his lands and it is all one as if he had said Heir of his lands and here he not only makes him his Heir but his Executor also Will. and therefore if he shall not have his lands the word Heir is meerly nugatory and to no purpose for by being Executor only he shall have the goods and as it hath been observed he is in this case haeres factus though not natus Ierman Iustice to the same effect and said that the word Heir implyes two things 1. That he shall have the lands 2ly That he shall have them in Fee simple Nicholas and Ask Iustices concurred and so it was ruled that Iudgement should be given for Sir Iohn Bridges the Devisee nisi Lockoe against Palfriman Hill 1651 Banc. sup Hill 1651 rot 1002. VPon a special verdict found in an ejectione firmae Special verdict in an ejectione firmae the case fell out to be this Tenant for life the remainder to Baron and Feme and their Heirs Baron and Feme suffer a recovery The question was whether the Heirs of the Feme were bound by this recovery because the Feme being covert it was conceived she was not Tenant to the praecipe because it appears not she was examined and so nothing was recovered from her It was argued that this recovery did bind the Feme 1. because if a precipe be brought against one who hath nothing in the land the writ only is abatable Fitz. Tit. Droyt 29. Next an Estople with recompence excludes not only parties and privies but also strangers as it is in Shellyes case and 3 Iac. C. B. in Duke and Smiths case 15 E. 4 f. 28 In 43 Ed. 3. f. â—8 was the first mention of examination of a Feme upon a Recovery and she shall be intended to be examined here if it be requisite for it is not found she was not examined and in Br. Abridg. recovery in value 27 23 H. 8. It is held that a Feme Covert is barred by a Common recovery and this hath been the continual practice since that time and whereas it is objected that a colourable recovery doth not bind a Feme Covert it is answered that this is not a colourable recovery but a judicial matter of Record and is brought upon an original and there is an intended recompence to the Feme and to urge that there is no Tenant to the praecipe is an objection which reaches to the common practice of assurances and therefore not to be admitted and in time they might have counterpleaded the voucher but now they cannot avert this matter against the Record 19 E. 3. estople 9. and though the Feme be not examined yet she shall be bound by this recovery though in a fine it is otherwise where there is no recompence in value as here there is and in a fine the Iudge ex officio is bound to examine the Feme but not in a recovery nor is there any practice of it in Law 13 Ed. 3 Iudgement 29. A partition made by writ shall bind a Feme Covert because she hath a recompence so is it upon a partition made upon Record in Chancery And by the Barons surviving the Feme here the recompence both not survive to the Baron but shall go to the Heirs of the Feme Br. recovery in value 27 2 Iac. C. B. here is a reall Estate in the Baron and Feme Hales on the other side made the question to be whether by a recovery
had where the Feme being Covert is not Tenant to the praecipe she shall be bound by it and he said she is not In other cases the party may be bound by estople namely where he might have pleaded to the writ or might have counterpleaded the voucher but here the Feme is not subject to be admitted to these things 17 E. 3. f. 37. and the Feme Covert here is not so concluded by her admission that she shall not be admitted to speak against this recovery if she survive her husband neither are her Heirs concluded if she do not survive although peradventure as to the warranty they may be concluded â—0 Ass pl. â— 11 E. 3 Fitz. voucher 1432 E. 3. Fitz. estople 246. 21. E. 3 13. and the recovery here is not duely had because there is no tertenant Roll chief Iustice said it is not to be questioned whether a recovery bind a Feme Recovery Examination Averment for it is the Common practice 2ly It is not necessary to examine a Feme Covert upon suffering a recovery although it be a prudentiall thing to do it but if it be not done it is not averrable that it was not done but the single question material here is whether the Feme be Tenant to the praecipe or not Feme Covert so that she shall be estopped to speak against the recovery and he held she was estopped for she joyns in the recovery with her Husband and here is no default made by the Baron and now the record is perfect and a thing contrary to it ought not to be averred against it but before the Record was perfect she might have pleaded Plea and the recompence in value here shall go to the Heirs of the Feme and the Tenant for life is also bound by this recovery and the Feme is party and also privy to the recovery Party and privy and therefore if it will bind her it will bind her Heirs also If a stranger had been Tenant to the praecipe and the Baron and Feme had been vouched the Feme had been bound and this is a stronger case and this case may concern many mens estates and therefore such recoveries are not to be questioned Therefore let the Plaintiff have his Iudgement nisi Hill 1651 Banc. sup ONe Turner and Marian were Bail for one by the names of Turner and Mary Motion to alter the name of a Bail Amerdment Bail the Court was moved that the name Mary might be made Marian But Roll chief Iustice answered let the party come and find other Bail for upon the matter this is no Bail Hill 1651. Banc. sup AN Endictment was removed by a certiorari into this Court For a procedendo and the Court was moved for a procedendo because no Bail was put in here Roll chief Iustice answered If no Bail be put in you may proceed below without any procedendo Hill 1651. Banc. sup THe Court was moved to supersede an Execution against one quia erronice To supersede an execution because he was taken in Exeeution whereas there was no declaration given against him in the Term time as it ought because the party was in custodia and the Declaration against him was upon the by viz. at another mans sute and not at his at whose sute he was in custody Roll chief Iustice answered if it be a Declaration on the by it ought to be given in the Term time Hill 1651. Banc. sup VPon a rule to shew cause why an attatchment should not be granted against Cox an Attorney of this Court and Maior of Newberry Cause why no attatchment for issuing out of Execution upon a judgement given there after a writ of Error brought and allowed there Wild shewed for cause that the Malor was enformed by Councell that the Record was not removed thence because the writ of Error was not good This was allowed for cause and the former rule discharged quod nota Hill 1651. Banc. sup LEtchmore moved the Court that the word publicae might be put into an Endictment which was removed hither by a certiorari To mend an endictment Amendment Fine But the Court answered it could not be but because the endictment was of another Term the Clark of the peace was fined at 10 l. for his carelessenesse and grosse oversight Pasch 1652. Banc. sup THe court was moved for a habeas corpus For a habeas corpus for one committed by an order of Sessions of the peace Surety for one that was committed to prison by an order of Sessions of the peace untill he should find sufficient suretyes for the peace whereas he had tendred suretyes which would not be accepted but extraordinary suretyes were required such as he was not able to procure Roll chief Iustice answered a thousand pound bond may be required for the keeping of the peace as the case may stand viz. if the party to be bound be a dangerous person Yet take a habeas corpus but be sure you bring good suretyes Pasch 1652. Banc. sup AN action of debt was brought against one for 50 l. due for divers pieces of lixnen cloath sold to the Defendant Wager of law waived and a plea put in The Defendant was ready at the Bar to wage his Law but the Court being enformed that the Defendants wife kept a shop and used to buy and sell by her husbands privity and allowance and that these parcells of cloath were bought by her to furnish her shop and that the Defendant her husband although he was a Sea man and medled not in buying and selling of any of the wares in the Shop yet his wife did it by his allowance Roll chief Iustice advised the Defendant to take heed he waged not his Law for that he could not do it with a good conscience because his allowance of his wifes buying the wares was all one as if he had bought them himself and counselled him to plead to which the Defendant consented and the ley gager was waived by consent of the partyes and an emparlance given till the next Term. Emparlance Dudley against Born Pasc 1652. Banc. sup THe Court was moved on the part of the Defendant that in regard Motion to put in security for costs denyed the Plaintiff had obteyned the cause between them to be tryed at the Bar that therefore he might be ordered by the Court to give security to pay the costs in case the tryal should be against him But the Court would make no such rule but said if he will not pay the costs in case the verdict be against him he shall take no benefit here afterwards upon it Garland against Yarrow Pasc 1652. Banc. sup Hill 1651. rot 1295. THe Plaintiff brought his Action upon the case against the Defendant for speaking these scandalous words of him Arrest of Iudgement in an Action for words viz you are a knave and keep a bawdy house after a verdict for the
assise because it ought not to have been taken but a petite cape of the lans awarded whereas though this was a fault in the Iudge to take the verdict yet this is to be amended by a writ of Error for the Iudge of assise and the Iudges of the Common pleas in this case are but as one Iudge Dyer f. 194. f. 76. and here is a waiver of the default because the enquest was taken at the prayer of the party 27 H. 8. f. 18. 10 H. 7. f. 21 And the Demandant may release the default either expresly or implicitly 3 H. 6. f. 48. 10 H. 7. f. 21. 3ly Here is a discontinuance which is not helped because the Enquest is taken by default and the Tenant by the Iudges taking advice is out of the Court 7 H. 4. f. 14. pl. 13. Here is day given in Court to the Demandant but not to the Tenant and the Iudges cannot advise afterwards And here the judgment is given upon a default after a default whereas the 2d default was the same day with the 1. not at another day as it ought to have been Hales on the other side held that the judgment was not erronious for here is no judgement but only an awarding of the Enquest and if it be not good it is done by those that had no power to doe it and so not material and the Iudges of the Common place have a distinct authority from the Iudge of the nisi prius 2ly Here is no release of the default nor Enquest nor can the Iudge of the nisi prius take a release of the Default for by awarding the default the power of the Iudge of the nisi prius is determined And the release ought to be of the default upon which the judgement should be given and it is not so here Next here is no discontinuance for it is not necessary to give day to the Tenant by the Curia advisare vult for then there could be no petite Cape And the judgement here is good for there is no other day of default Roll chief Iustice Verdict by default Petit Cape The Iudge ought to have called the Tenant or to award a petite Cape of the land and not to have taken the Enquest by default but here the Iudge of Assize did not award a petite Cape For the 1 Exception The Iudge of the nisi prius had no authority to take the verdict and so that is done coram non judice and so the nullo habito respectu to the Enquest by the Iudges of the Common Pleas is good enough Error and so they may in that Court award a petite Cape and they may also advise and there is no need for them to give a day of continuance to the party for that were to take away that of which they would advise and the ad alium diem is also good and so there is no Error in the judgement Affirmetur nisi Doctor Trigg against the College of Physicians Trin. 1652. Banc. sup Hill 1651. rot 1143. A Writ of Error was brought to reverse a judgement given in the Common Pleas for the College of Physicians against Doctor Trigg in an action of debt brought upon the Letters Patents Error to reverse a judgement for practising Physick without License and Stat. of 3. H. 8. for practising Physick without licence The 1 Error assigned was that it is said that quidam Willielmus Trigg and so it may be intended another party and not the same whereas it ought to have been praedictus Willielmus Trigg But to this Roll chief Iustice answered that the party came in and pleaded and so he must néeds be the same party The 2 Error was that the Iudgement was wholy given for the President of the College of Physicians wheress it should have been given part for the President and part for the King Hales in maintenance of the judgement answered that the judgement is to be given for the party who brings the Action and if the Action had been brought by the King only Iudgement should have been given for him only yet the money recovered shall be distributed as the Statute directs Roll chief Iustice The King may be better trusted than a Common Informer So the Case is not alike where the King brings the Action as where the Informer brings it for the King may receive all the money and the Informer may have his part by Petition to the King and here neither the Information nor the Verdict is pursued for that is tam pro Domino Rege quam pro seipso c. and here the Iudgement is only for the Informer Iudgement The King may if he will sue alone and have Iudgement for all if he begin his sute before the Informer but if he begin it afterwards the Informer shall have his part And if the King do inform tam pro seipso as for the College there the College shall have its part For these reasons the Iudgement is not good Therefore let it be reversed nisi Trin. 1652. Banc. sup THe Court was moved to vacate a latitat that issued out of this Court erronice To vacate a Latitat Supersedeas for that it was made retornable two days before the Term Ierman Iustice Take a supersedeas Godwin against Batkin Trin. 1652. Banc. sup Hill 1650. rot 1477. A Writ of Error was brought to reverse a Iudgement given in an Action of Trespass upon the Case in the Court at Burton upon Trent Error to reverse a judgment in an Action upon a promise wherein the Plaintif declared that the Defendant in consideration that he was indebted unto the Plaintif in 20 l. did assume and promise to deliver divers Cattel to I. S. to the use of the Plaintif and for non performance of this promise he brought his Action and had a Verdict and a Iudgement But the Iudgement was reversed because the Court held that here is no consideration expressed which can relate to the discharging of the debt of 20 l. and so the promise is but nudum pactum Consideration Nuâ—um pâ—ctum and the Plaintif is notwithstanding the promise at liberty to bring his Action against the Defendant for the money Child against Sir Iohn Lenthall Trin. 1652. Banc. sup AN Action of Escape was brought against Sir Iohn Lenthall as Mareschall of this Court Arrest of Iudgement in an Action for an escape wherein the Plaintif declared that whereas I. S. was indebted unto him by Obligation in a certain sum of money and was thereupon by a latitat out of this Court arrested and did thereupon put in Bail and did appear to the Action and the Plaintif obtained a judgement against him who thereupon in discharge of his Bail did render himself to Sir Iohn Lenthall in Execution and that afterwards Sir Iohn Lenthall had suffered him to escape per quod c. to this Declaration Sir Iohn Lenthall pleaded and a Verdict was had against
and so the stile implies common by intendment The Court advised till the next Term. This Case was afterwards moved by Latch who said That here is no variance between the Writ and the Record although the Writ be not so full as it might have been to describe the Record and it is agreeable to the antient and usual practice at this day and cited the old book of Entryes 171 and said that in Paytons case the Record was in Curia Domini Regis Civitatis and the writ of Error was in Curia Civitatis Glocestriae Mich. 23 Car. Banc. Reg. rot 569. and all Courts of Record are originally the Kings Hales on the other side said that the writ of Error ought to shew whose the Court is and the rather because it is said to be Curia Manerii Wadham Windham The Register is both ways and by direction of Parliament the Common Pleas is stiled Curia de Communi Banco But here the Record appears to be Custodum c. Civitatis and the Writ doth not mention that The Court would advise oâ— the Presidents This case was again moved and Lodge and Woodhalls case 22 Car. urged that the Return of the Certiorari upon the writ of Error was not good for the variance formerly alleged but Wadham Windham held it good enough and relyed upon Presidents shewed to Hern the Secondary as the Court had directed Hales on the other side urged that the variance made it not good for it cannot be intended the same Court Roll chief Iustice here is no diâ—â— opposition between them for they may both stand together and the writ of Error intends it to be a Court of Record and yet it is the Court of the Manor also and therefore it is good in substance De facto it is the Court of the Lord of the Mannor but virtually and in dignity it is the Court of the King but the Venire is clearly vitious and therefore let the Iudgement be reversed for that cause Jervis and Lucas Mich. 1652. Bane sup THe Court was moved for one Iervis Motion for the Court to view a wound to encrease damages that the Court might view his wound and increase the damages given him by the Iury because they had given him but twelve pence damages for his wounding whereas the parties Arm was broken and he was in great danger still to lose the use of it But Roll chief Iustice answered it appears not by his Declaration what manner of wounding it was he received as it ought to have been and how can we know how he was wounded But we will advise and hear Councel on both sides At another day Serjeant Parker moved the same matter again and cited 3 H. 4. f. 4. and 18 H. 4. f. 23. and Dyer to prove the Court might increase the damages Twisden answered That the wounding ought to have been particularly expressed in the Declaration that the Court might judge of it by the Record and the party is not to be viewed by the Court upon the bare averment of the party made at the Bar. View To which Roll chief Iustice agreed and said how can it appear to us that he was wounded so as you aver by this Battery for it may be he was wounded since your action neither can you now discontinue the Action because it is after a verdict Discontinuance so that you are now without remedy Mich. 1652. Banc. sup THe Court was moved for a prohibition to the Prerogative Court Motion for a Prohibition to the Prerogative Court because they do proceed to examine witnesses there to disprove a will that was proved there 20 years since by which Will lands were devised and the lands are sold and this they do to prevent a tryal at Law touching the title of the land directed out of the Chancery Roll chief Iustice answered they may examine the probate there for you have libelled there to take benefit of the probate and therefore the other party may disprove the probate if he can as far as concerns any goods devised by the will And therefore we will grant no prohibition Mich. 1652. Banc. sup THe Court was moved for the Parishioners and Officers of the Parish of Clarkenwell Motion to make Scavengers execute their Office By-laws Mandamus to make Scavengers that are elected in that Parish to serve the Office Roll chief Iustice answered It is marvel that the City of London do not look to this for they have power by their by-laws to make men serve such offices yet take a mandamus for them to be brought hither to shew cause why they will not execute the Office Actoâ— and Ayres Mich. 1652. Banc. sup A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Ejectione firmae Error to reverse a judgment in the Common Pleas in an Ejectione firmae Iudgement and the Error assigned was that the judgement was quod querens recuperet the words quod defendens capiatur are omitted And upon this Exception the Court reversed the judgement for they said in this judgement thus entred there is no return of damages nor a Capiatur and so the Common-wealth is cozened of the fine and the Defendant barred from bringing his writ of Error Dawkes and Coveneigh Mich. 1652. Banc. sup Hill 1650. rot 653. COveneigh was endicted for felony for breaking the house and taking 250 l. Special Verdict in an Action of Trespaâ—â— quare clausum irâ—gâ—t out of the house of Dawkes and found guilty and was burnt in the hand afterwards Dawkes brings an Action of Trespasse quare clausum fregit and for carrying away the 250 l. against Coveneigh who pleads not guilty and thereupon a special verdict was found to this effect that the Defendant did feloniously break the house and carry away the 250 l. and was endicted for it and was found guilty and burnt in the hand for it and if upon the whole matter c. The question upon the special verdict was If after the Defendant was endicted and found guilty and burnt in the hand for this fact at the sute of the keepers of the libertyes of England c. an Action of Trespasse quare clausum fregit and for carrying away the mony be maintainable by the party who was thus robbed against the party that robbed him or no. Latch of Councel with the Plaintiff held that the Action did well lye and that the Plaintiff ought to have Iudgement and that this special matter found by the Iury is no bar to the Action for if he had been attainted for another Felony it would not have barred the Plaintiff from his Action after he had been discharged but otherwise it is if the party bring his Action whilst the party stands attainted or the party be attainted pending the Action of Trespasse 33 Eliz. Wade and Prescots case in this Court and 34 Eliz. Trussels case in this Court and 6 Ed. 4. 4. and in our
case the Action was not brought till after the party tryed But it is objected that the Trespasse here is brought for the same fact for which the party was tryed and therefore it is unreasonable that he should be doubly punished for it To this I answer that it was at the parties election at the beginning either to endict him or to bring his Action of Trespasse Hudsons case 4. rep 43. And here the party hath made no election for the party was endicted at the sute of the Common Wealth and not at the prosecution of the party and so he hath made no election untill now And if the Action might not be brought it might prove very mischievous for the party might get himself indicted and so cousen him that is robbed of this mony Dyer 50. â— rep 13. And the highness of the nature of the endictment doth not drown the Action of Trespasse although that treason doth drown Felony R. 3. 6 H 7. 5. And although the monies here stollen be for feited to the State by the conviction of the Felony yet an Action of Trespass lyes against the Felon to cause him to render damages pro tanto although he cannot recover the mony in specie And the special verdict doth not find that any evidence was given for the Plaintiff upon the endictment but only for the State And for authority he cited Markham and Cobs case Trin. 2 Car. Entred 1 Car. rot 112. Roll chief Iustice said That Iustice Doderidg and Iustice Whitlock held that the Trespass lyes Trespasse But Iustice Iones held the contrary because if the party robbed might have his election either to endict the Felon or to bring his Action of Trespass many Felonies would be smothered and this would prove very dangerous and though the party robbed had endicted the Felon he might have had his goods or he might have brought an appeal against him and so there is no inconvenience to him 4 Iac. In Higgins case it was adjudged where an Action of Trespass was brought by the Husband for beating his wife by reason whereof she dyed that the Action did not lye because it was Felony Ierman Iustice differed from Roll chief Iustice and said that the inconvenience on the other side would be greater than is alleged if the Felon shall so take advantage of his one wrong and in 2 Car. it was held that the Action doth lye Roll chief Iustice said if the Felon have not wasted the goods when he is hanged the party shall have restitution but if he have wasted them Restitution and hath other goods he shall have restitution in value But let Wild argue it again the next Term. Accordingly it was again spoken too by Wild who argued that the Action of Trespass did not lye first because the party did not make fresh sute after the Felon according to the Statute 21 H. 8. which was made to encourage the prosecutor but the party hath not prosecuted here and it is all one to recover damages for the goods and to recover the goods themselves so that I conceive that is no difference And the great inconvenience which might come to the Common-Wealth if the Action should lye doth countervail the damage that may accrew to the party if the Action lye not And it matters not that it is said the Trespass is a distinct offence from the Felony for it is drowned in the Felony and therefore the party can have no satisfaction for it Mich. 21 Iac. Ayers and Higgins case C. â— 31 H 6. Bâ— 15. trespasse 415. 4. Iac. Higgins and Butchers case B. R. Roll chief Iustice This is after a conviction and so here is no fear that the Felon shall not be tryed Bat if it were before conviction the Action would not lye for the danger the Felon might not be tryed And there is no inconvenience if the Action do lye and since he could not have had his remedy before he shall not now lose it and now there is no danger of compounding for the wrong the rest of the Iudges agreed with Roll and so Iudgement was given for the Plaintiff Ellis and Pipin Mich. 1652. Banc. sup THe Court was moved that an outlawry might be discharged Motion to discharge â—n outlawâ—y because it is now pardoned by the Act of oblivion for notwithstanding it were not pardoned if it were an outlawry after Iudgment except the monyes due for which the party is outlawed be payed to the party as the book of 6 H. 7. f. 21. is yet outlawryes before Iudgment are pardoned and besides the parties here did submit to an arbitrement touching the matters in difference between them and an award is made But the Court answered that the outlawry cannot be discharged untill the party have brought his scire facias upon the Act Scire fâ—cias Interest and it was also said that the party at whose sute another is outlawed hath an interest by the outlawry as well as the State Prior and Hale Mich. 1652. Banc. sup A Letter of Attorney for one to appear to an Action is good enough by paroll to support a Iudgement given thereupon A letter of Attorney by paâ—oll good to some intent By Pinsent protonotarie of the Common Pleas. Nota. Fowke and Boyle Mich. 1652. Banc. sup FOâ—ke brought an Action upon the case against Boyle Demurrer to a Declaration in an Action on the case for selling of false bills of publique faith unto him to the value of 800 l. the Defendant demurred to the Declaration and took these exceptions to it 1. That the ordinance of Parliament upon which these bills of publique faith were grounded was misrecited for it is said to be made by both houses whereas it ought to be by the Lords and Commons 2ly The Aldermen who were authorised by the ordinance to give these bills of publique faith are not named by their Christian names but only Alderman such a one naming the surname 3ly There is 70 l. expressed to be paid as is mentioned in the papers and it is not expressed at what time or place as it ought to have béen 16 E. 4. f. 3. and 28 H. 6. f. 3. 4ly Here is an assignment set forth to be made in due form of Law but doth not shew in what maner 10. Iac. Mich. Glass and Gowr in this Court Latch on the other side said that the mentioning of the ordinance and of the Aldermen was but inducement to the Action and there is no necessity to call the Aldermen by their Christian names but as they are called in the Ordinance nor is it necessary to shew how the assignment was made and these words are the words of the party nor is it needfull to shew how the monies were to be paid Roll chief Iustice The cause of the Action is the desceit in assigning the false bills and affirming them to be true Inducement and all the other matters are but matters of inducement and by way
expressed by them And how can we take notice here that there was not fair play in the running of the race and I doubt of the books cited by Latch Bar. Auditors Accompt for where matter may be pleaded in Bar the party shall not be compelled to come before Auditors for that were unreasonable If I deliver goods to deliver over and the party do it not he is accomptable to me but if he deliver them over he is not for he may plead this in bar of the Action and so is it in the Case at the Bar and you might have given the special matter in evidence here by the meal Act Plea and this plea here before the Auditors is cleerly void The main doubt here is whether there be apparent matter to the Court to hinder the Plaintiff from his Iudgement I conceive the Articles shall be interpreted fairly and that there ought not to be fowl play according to Common intendment and it is material to shew there was fowl play in the replication and so the issue is well joyned and Iudgement ought to be for the Plaintiff Ierman and Nicholas Iustices to the same purpose as Roll. Mich. 1652. Banc. sup IT was moved for Coronel Baxter that he was elected high Steward of the Town of Colchester in Essex Motion for a mandamus to Colchester to swear the high Steward there and therefore that the Court would grant a mandamus to be directed to the Maior there to swear him in that place Roll chief Iustice If he be duely elected and he refuse to swear him take a mandamus Iaques Mich. 1652. Banc. sup IN the case of one Iaques in an Action of Trespass quare vi et armis What plea amounts to not guilty for the entring into his Land It was said by Roll chief Iustice That if in an Action of Trespass vi armis for entring into land the Defendant plead his entry by virtue of a lease for years this amounts to no more than not guilty and the Plaintiff may demur upon the Plea Demurrer◠and shew it for cause of demurrer that it amounts to no more Mich. 1652. Banc. sup IN the case of one Poynes Mawrice it was said Where one cannot be declared against in Custodia that if one be committed to the upper Bench prison for a misdemenour and not for debt one cannot declare against him as against one in Custodia Mich. 1652. Banc. sup THe Court was moved on the behalf of the Defendant Motion for a certiorari to remove endictments for a certiorari to remove certain endictments preferred against him in London for selling of leather to the end he may have an indifferent tryall notwithstanding the Statute which directs that the endictment be preferred in the County were the offence was committed Roll chief Iustice The Statute was made for the ease of the Defendant and therefore he may remove the endictment otherwise he shall be in worse case than he was before the Statute Therefore take a Certiorari Yongue and Petit. Mich. 1652. Banc. sup Pasc 1652. rot 159. YOngue brought an Action of debt against Petit upon an Obligation and declares Demurrer to a replication in debt upon a Bond. that whereas at the request of the Defendant he did become bound with a third person for the payment of a certain sum of mony unto I. S. at a certain day the Defendant became bound in an Obligation to the Plaintiff the condition of which Obligation was that if the Defendant did pay the mony unto I. S. at the day limitted for which the Plaintiff was bound and in the mean time should save him harmlesse that then the Obligation should be void and for not performing this condition he brought his Action The Defendant pleads that he caused the party with whom the Plaintiff was bound to submit himself to Prison and that the Plaintiff was not damnyfied The Plaintiff replyes and denyes not the Bar but sayes that a latitat was sued out against him and that he feared to be arrested and upon this replication the Defendant demurs and these exceptions were taken to it 1. That he doth not say he took out a latitat prout patet per recordum 2ly It was questioned how the words in the mean time shall be understood For the first exception Latch held it not material Relation and for the second he held that they refer to the whole condition Roll chief Iustice said it is not necessary here to plead non damnificatus if the party be in prison and the words in the mean time refer to the last words only of the condition But one hath pleaded an ill plea and the other hath alleaged an ill breach therefore nil capiat per billam nisi Yet we will advise Mich. 1652. Banc. sup AN endictment was quashed for not repairing a highway Endictment quashed because it did not set forth from what place to what place the way did lead The Maior and Commonalty of London against Hatton Mich. 1652. Banc. sup THe Maior and Commonalty of London brought an Action of Covenant against Hatton Demurrer to a Plea in Covenant for not paying a rent reserved by them upon a lease for years made unto him of the Garblers office The Defendant pleaded that this office was an office of trust reposed in the City of London and could not be let for years and consequently there was no ground of Action To this plea the Plaintiff demurs Hales held that this office may be let for years because the Maior and Commonalty of London have a Fée simple in the office by their charter and that they have not only a meer trust reposed in them to execute it And 2ly If it could not be granted yet here is no forfeiture for this lease shall be accompted but a deputation and not a granting over of the office And 3ly The Lessees covenant shall bar him from pleading this plea. Wadham Windham prayed a day to be heard Roll chief Iustice It will be hard for you to maintain the Defendants plea Deputation Lease For without doubt the Maior may make a Deputy to execute this office But here he hath a Fée simple in it and may thereby make a lease of it and the Lessees Covenant will bind him to pay the rent Iudicium pro querente nisi At another day Wadham Windham put the Case and argued that the office of Garbler is not grantable because that this office is an office of trust reposed in a corporation and it is so reposed for the publique good and the office it self is not vested in the Maior and therefore he cannot grant it although he may make a Deputie to execute it for there the Acts of the Deputie do light upon the Master to be answerable for 29 H. 6 44. Dyer 238. a Maior of a Town may make a Deputie but he cannot grant this office or make a revenue of it Roll chief Iustice
fining the party after a Certiorari was delivered unto him to remove the Endictment into this Court and thereupon it was prayed that it might be granted and Sir Tho. Styles and Sir Iohn Sidleys case 8 Caroli was urged where an Attachment was granted in the like case Wild on the other side prayed it might not be granted because the parties endicted did not tender sureties to proceed to a Tryal upon the Endictment as the Statute directs and because the fine was set upon the parties before the Certiorari was delivered and it is in the election of the Iustice to set a fine upon the party Fine Traverse Plea and refuse to admit the party to his traverse as some do hold Roll chief Iustice Vpon view of the force the Iustice may set a fine upon the party and refuse to admit the party to his traverse or plea at his pleasure but the case is not so here and in 15 Car it was resolved that if a Certiorari be brought to the Sessions to remove an Endictment of forcible Entry preferred against divers persons if some of them come in and find sureties for the damages it is good for them all to remove the Endictment for the rest else it would be mischievous for them that find the sureties And he said that if any thing be done at a private Sessions of Peace it ought to be returned to a Quarter Sessions or into this Court Vpon view of the force the Iustices of Peace are Iudges Error and may set a fine and if there be Error a writ of Error may be brought The rule was that Staples be examined upon interrogatories and make a return of the Certiorari Monday next and that he restore the fine to the party Wood and Mountney Mich. 1652. Banc. sup IN the Case of VVood and Mountney Bail not discharged by the death of the Principal Bail Roll chief Iustice said That if the Plaintif in a writ of Error die before the matter be determined yet his Bail are not thereby discharged Webb and Washborn Hill 1652. Banc. sup THe Action was an Action of Trover and Conversion for divers goods Arrest of judgement in a Trover and Conversion The Defendant pleaded not guilty and upon issue joyned a Verdict was found for the Plaintif It was moved in Arrest of Iudgement that the Plaintif amongst other things had declared for a Trunk with writings which is uncertain Wadham Windham for the Defendant said the Declaration is certain enough and cited a Case where an Action was brought for two Trunks of Cloathes and doth not say what Cloaths and yet adjudged good Another Exception was taken That the Plaintif declares for a great Beam Scales and Weights which is also incertain To this Windham answered It was certain enough because they all make but one thing by reason of the relation they have one to the other And in the old Book of Entries we find that an Action of Trespass was brought pro Caruca cum apparatu and adjudged good Latch on the other side as to the last Exception said It is not answered for the words are very incertain and it is not like the case of the Trespass cited de Caruca cum apparatu for the Weights go not to the perfecting of the Beam as the apparatus doth of the Plow and it is as uncertain as to bring an Action for five Locks and Keys which is not good Hales answered it is certain enough for it is all one as if he had said A Beam Scales and Weights which is as certain as to say a Ship with Anchors and Cables Roll chief Iustice How can we reduce the Weights to any certainty as the Declaration is laid and if the word and had been added it would not have helped for they may be a hundred Weights or a thousand Another Exception was taken that the Plaintiff in another Action had declared for four pair of Hangings which is uncertain But Roll chief Iustice said That that might be well enough understood Green at another day insisted that four pair of hangings is very uncertain but if it had been said four sutes it had been well Besides the very word hangings is a doubtfull word for it shews not whether the hangings were Silk or Stuff or what else they were made of as it ought to be He also took an Exception that the Plaintiff had only shewed that here was a denyal and refusal to restore the goods but no conversion of them is shewed To this Hales answered That the Action being an Action upon the Case It is not necessary to shew the Conversion and for the four pair of hangings it is well enough for a pair is a couple when the word is used of dead things and not like a pair of tongues which make but one thing nor is it material to expresse of what the hangings are made as it is not in an Action brought for divers pair of stockings material to say whether they were of thread silk wosted or wollen as hath been adjudged and the word hangings is certain for any one will conceive them to be meant of hangings of a room Roll chief Iustice The Action is an Action upon the case and it is not necessary to shew a conversion for the Action is not brought for the conversion and if it were so if a demand and a denyal be proved doth not this prove a conversion Case Trover and Conveision As an Action of the case lyes for keeping one out of possession although the party doth enter afterwards and the four pair of hangings is certain enough and it is not like as where Latin words are mingled with English in a Declaration and the words being taken in the English construction shall be understood to be eight hangings Nor is it material to expresse of what the hangings are made But the great doubt is whether the words be meant of hangings for a room or not and I suppose they cannot be meant of other hangings the words being in English and not in Latin with an Anglice and I believe you cannot shew me any thing else that the words can by common intendment signifie Iudicium nisi The case was again moved at another day by Latch who urged that four pair of hangings are words incertain but if it had been four suits it had béen well so that here is a misaplication of words to expresse the thing meant and he might as properly have said a suit of Shoes or a suit of Conies If one say he hath lost a hanging this is incertain of it self for it is the predicament of situs and not of substance for a hanging is a posture and the word pair makes it more incertain than it was without it Hales answered that it is certain enough for the word hanging is used here substantively and not as a participle and the common use of the word is only applicable to the hangings of a room and the four pair shall
weekly to a Parish Order of Sessions quashed towards the keeping of a Bastard Child was quashed because it did not appear by the order that the Child was born in that Parish to which the mony was awarded to be paid Hill 1652. Banc. sup THe Court was moved to discharge the plea of not taking the engagement pleaded to a Soldier in the States service in Ireland Motion to discharge the plea of engagement Certificate upon a certificate under the hand and seal of an officer in the Army there under whose command he was that he had taken it and also upon a certificate under my Lord General Cromwells hand and Coronel Whaleys hand that they did believe the other certificate was true Roll chief Iustice answered we cannot help you for our hands are tyed up by the Act from which we must not vary Nota. Hill 1652. Banc. sup ROll chief Iustice said Whether one endicted of perjury be bailable that he doubted whether one endicted of perjury may be bailed although the clarks of the criminal side said he might Q. Brightwell and Robson Pasch 1653. Banc. sup AN Action upon the case was brought for delivering in a false note of goods Arrest of judgement in an Action upon the case for which excise was to be paid into the office of excise whereby he was compelled to pay 50 l. to his damage c. upon not guilty pleaded and a verdict for the Plaintiff Green moved in arrest of Iudgement because that the Declaration did not set forth the Act of Parliament which gives authority to the commissioners of excise And 2ly The damage is not coupled with the fraud nor is it exppessed how he was compelled to pay the 50 l. and the Court is not bound to take notice of the Ordinance of Parliament touching the officers of the excise because it is not a general law But Roll chief Iustice answered that the fraud is the ground of the Action and all the other matter set forth in the Declaration is but matter of inducement to the Action and it is not requisite to be so punctual in setting that forth as is surmised and we are bound to take notice of the Ordinance Inducement Notice and the Action brought is to recover damages caused by the fraud and it is no more necessary to set forth all the circumstances occurring in acting of the fraud than for one to set forth all processes in an Action grounded upon a fraudulent Iudgement obteyned against him by which he is damnified Iudicium nisi c. pro querence Pasch 1653. Banc. sup BY Roll chief Iustice Endictment for breaking the Peace If one that is bound to the Peace do break his recognisance he may be endicted upon it for this is a new offence Pasc 1653. Banc. sup THe Court was moved upon an Affidavit to discharge a Prisoner brought to the Bar by a habeas corpus Motion to discharge a Prisoner because he was arrested on the Sabbath day Roll chief Iustice plead this matter to his Action that arrested you for we cannot discharge you upon an affidavit Custodes and Rickaby Pasch 1653. Banc. sup RIckaby convicted of Felony for killing a man during the wars Motion to discharge a Prisoner upon the general pardon Surmise and brought hither by a habeas corpus moved by his councell to be discharged upon the Act of the late general pardon Roll chief Iustice It appears not to us whether you are excepted out of it or no. But enter your surmise upon the Roll by the advice of your councell as you will stand to it Postea Pasch 1653. Banc. sup BY Roll chief Iutice One cannot answer for an infant as Guardian Who may answer for an Infant as Guardian Motion Prochein amy Infant either in the Chancery or in any other Court except he be asigned Guardian by the Court for if he might that were to make himself his Guardian and that might prove to the damage of the infant therefore if one will sue an Infant he must move the Court to assign a Guardian that may answer for him But an Infant may sue per prochein amy though his prochein amy cannot answer for him Pasch 1653. Banc. sup BY Roll chief Iustice Who may be a witnesse although upon a Tryal one who is a Legatee by a Will may not be admitted for a witnesse to prove that will yet he may be examined as a witness to prove a deed or other thing which hath not relation to the will in respect of the interest which he claims by the Will And he then also said that Deeds were inrolled at the Common Law Eorollment for the preservation of them although not to pass any estate as it is now by the Statute of Enrolments made 4 H. 7. Pasch 1653. Banc. sup BY Roll chief Iustice How a disseisin is taken away Entry If one disseise me and a Stranger enter upon the disseisor for me this Entry takes away the disseisin and if a Copyholder of a Manor enter as a Commoner it is in right of the Lord although it be not by his command nor he have any notice of it Nota Pasch 1653. Banc. sup AN Action was brought for not paying monies upon the receipt of a bill of exchange according to the custom of Merchants Arrest of Iudgement in an Action to non paying monies upon a bill of exchange and upon a verdict found for the Plaintiff it was moved in arrest of Iudgement and the exception taken was that it appears not whether the demand of the mony sued for was according to the old stile or according to the new and so it is incertain whether the mony was due when it was demanded or no for if it were demanded according to the new stile 〈◊〉 as not due but if according to the old stile then it was due for the new stile is 10. dayes before the old Twisden answered it shall be accompted according to the old stile for that is used here in England and he said if there be two Perchants that have a joynt trade and one of them accept a bill of Exchange if he do not pay it an Action lyes against the other Roll chief Iustice If the bill of Exchange be accepted there is no necessity to allege a demand Demand and the demand here is not laid as part of the custom upon which the Action is founded Therefore let the Plaintiff have his Iudgement Herbert and Lane Pasch 1653. Banc. sup HErbert a Carryer brought an Action upon the case against Lane an Inn-keeper Arrest of Iudgement in an Action upon the case for goods lost out of the Inn viz. certain packs full of linen cloath and other goods and after a verdict for the Plaintiff it was moved in arrest of Iudgement that it doth not appear by the Declaration what sort of cloath was in the packs nor of what value the cloath and
goods were and so the Declaration is incertain But Roll chief Iustice answered that the Declaration is good enough especially now there being a verdict in the case Pasch 1653. Banc. sup BY Roll chief Iustice Where a Certiorari may not be granted Affidavit Surmise A Certiorari to remove a Record ought not to be made but to a known Officer who is known to have the custody of Records and upon a surmise that he hath such a Record in his hand and therefore We will not upon an Affidavit grant a Certiorari but upon a surmise made upon the Roll. Pasch 1653. Banc. sup COunt Arundeland my Lord Chandois Bail denâ—ed for Maâ—slaughter to whom Count Arundel was second in a duel being formerly endicted at Surrey Assizes before Iustice Ask Iustice Warburton for killing Mr. Hen. Compton found guilty only of Manslaughter by the grand Inquest were brought to Bar to be arraigned for it and were not admitted to be bailed but were delivered over to the Marshal to be brought again at another day Nota. Pasch 1653. Banc. sup IOhn Weeks who had been endicted and convicted upon the Statute of King Iames made against stabbing Pardon allowed being formerly brought to this Bar did plead the general pardon which he had sued forth and prayed it might be allowed But then the Court said they knew not whether he were excepted out of the general pardon or not and ordered him to enter his averment upon the Roll that he is not excepted Surmise entred and then to appear again at another day at which time he was brought again and then he declared he had entred his Averment and produced his pardon and prayed it might be allowed which after a grave admonition made to him by Mr. Iustice Ierman exhorting him to repentance and amendment of life was done Harris and Tooker Pasch 1653. Banc. sup HArris brought an Action upon the Case against Tooker for turning of an old Water-course from his Mill to a Mill which the Defendant had lately erected and obtains a Verdict Arrest of Iudgement in an Action upon the Case The Defendant moves in Arrest of Iudgement 1. Because it appears not by the Declaration what estate the Plaintif hath in the Mill for he only says that he hath been seised of it 2ly It is not shewed from whence the water runs as it should be 3ly The erecting of the new Mill is not actionable but the diverting of the water to his damage and therefore ought not to be jumbled together Case Roll chief Iustice It is a damage to turn the water out of its antient course and it is not needfull to say that there is a new Mill erected But what say you to the first Exception viz. That you have not shewed what estate you have in the Mill. Wild answered they had shewed it Roll chief Iustice Be it so or not the Action lies for what estate soever he hath an Action of the Case will lie therefore take your Iudgement Pasch 1653. Banc. sup MEmorandum Arraignment for Manslaughter This day by Rule of Court my Lord Chandois and Count Arundel were again brought to the Bar and arraigned for Manslaughter Chandois as Principal and Arundel as accessary for killing Mr. Henry Compton in a duel They confessed the fact and craved their Clergy and Peerage by the Statute of 1 Ed. 6. But because the Court doubted whether the Statute was repealed or not Clergy and in regard the prisoners were not willing to lie longer in prison the Court refusing to bail them because the fact was notorious they waived their Peerage and prayed their Clergy as Commoners of England Whereupon the Ordinary was called who appeared and brought his Book which was a fair Latine Psalter The Court called for the Book and seeing it to be Latin commanded him to bring an English Book which he did But because the Officer was not provided who should have burned the Prisoners in the hand the Court would not then hear them read though the prisoners urged it But they were ordered to be still in Custody till another day and then to be brought again Trin. 1653. Banc. sup TWisden moved for a reference to Hern the Secondary and put the case to be this Motion for a reference to the Secondary A Scire facias issued forth against Executors and the Sherif returns nulla bona After upon a supposal by a testatum that the Executors had wasted the goods a new scire facias with a fieri facias in the same writ issued out according to the new way used and upon 2 nichils returned a judgement was given against them de bonis propriis and the parties were never summoned or had any notice of the proceedings Audita querela Reference Roll chief Iustice If you be condemned upon 2 nichils returned whereas you were never summoned you may help your selves by an Audita querela But it is not to be helped upon a reference Trin. 1653. Banc. sup A Man brought an Action of the case against one for causing him to be endicted for stealing of a Mare Arrest of Iudgement in an Action upon the Case and hath a verdict against the Defendant It was moved in Arrest of judgement that upon preferring of the Bill to the grand Iury they found an Ignoramus and so there is a repugnancy in the Declaration which sets forth that the Plaintif caused him to be endicted and yet says that an Ignoramus was found so that upon the matter it was found no Endictment Wild on the other side said the Declaration is well enough and there is no repugnancy for the words shall be taken according to the common construction Hales There is another Exception viz. That all the proceedings mentioned in the Declaration are expressed to be before the Iudges as Commissioners for the Gaol delivery and not as Commissioners of Oyer and Terminer Roll chief Iustice We will intend that the Endictment was before them as Iustices of Oyer and Terminer Endictment and in truth it is not material before what authority he was endicted and in this case the trouble the party is put unto by reason of this endictment is the cause of his bringing this Action and not his Tryal upon it Cure and therefore the authority is not material nor is it material whether the endictment be good or no and the words here are to be construed according to common intendment viz. That he was endicted though the endictment was not found but an Ignoramus and so by consequence in Law it is no Endictment upon which he could be tryed to come in danger of his life Hales moved that they might amend the Declaration and go to a new Tryal Roll chief Iustice It would be good to do so Amendment for it is doubtfull how we shall take the matter as it stands before us upon the Record Trin. 1653. Banc. sup THe Court was moved for an
Statute of 13 R. 2. C. 9. which is a generall Law and ought to be taken notice of but if not yet the Action is well brought for it is brought for the vexation the Plaintiff was put unto by reason of the presentment and the other matter alleged is but by way of inducement to the Action 2. Car. in Deâ—t and Oâ—ifes case in this court so held and though the conservators had no authority yet the Action lies for the malitious prosecution and for unjustly vexing him and so adjudged Trin. 16 Car. in this Court in Damon and Sheremans case Hales on the other side said that this Court is not bound to take notice that the Lord Maior of London hath this jurisdiction of conservatorship for the Statute which gave it him is a particular Law touching him only and so not to be taken notice of without it be shewn and then if he have no such authority all the proceedings against the Plaintiff are void Roll chief Iustice An Action upon the case lies for bringing an appeal against one in the Common Pleas though it be coram non judice Case by reason of the vexation of the party and so it is all one whether here were any jurisdiction or no for the Plaintiff is prejudiced by the vexation and the conservators took upon them to have authority to take the presentment And I hold that an Action upon the case will lye for maliciously bringing an Action against one where he had no probable cause and if such Actions were used to be brought it would deter men from such malitious courses as are to often put in practice Sherecroft and Weekes Trin. 1953. Banc. sup SHerecrost brought an Action upon the case against Weeks Arrest of Iudgement in an Action for words for speaking these words of him He meaning the Plaintiff got Mary Nab with Child and the Child is his and I have tryed it with a sieve and a pair of sheeres It was moved in arrest of Iudgement that the latter words are insensible and so the Action not maintainable to which it was answered that the first words are Actionable it matters not though the latter words be nonsence because they have no reference to the former words and therefore shall be rejected as sencelesse But Serjeant Barnard on the other side said the latter words do take off the force of the former words as the case is 4. rep f. 19. 2ly It is not said here when he got her with Child Nor 3ly Doth he aver that there was any such person as Mary Nab. Roll chief Iustice Case The Action doth well lye for the former words are positive scandalous words and the subsequent words are not material and if they be then they are in confirmation of the former for it seems he put confidence in the sieve and the sheeres and that made him speak the words and it matters not whether his confidence be true or false Therefore Iudicium nisi pro Querente VVeldon and Strudder Trin. 1653. Banc. sup IT was moved to the Court that the Plaintiff after he had obteyned a verdict and before Iudgement entred dyed Motion to enter the death of the Plaintiff on the Roll. and prayed that this might be entred upon the Roll but the Court denyed it and said it could not be VVhitehead and Buckland Trin. 1653. Banc. sup THe case of Whitehead and Buckland was again spoken unto Demurrer to a replication in Trespass by Original which was this Whitehead brought an Action of Trespasse by original writ for taking his Cattel the Defendant pleaded the Statute of limitations of Actions in Bar the Plaintiff replies that he took forth an original writ against the Defendant for this Trespass within the time limited by the Statute and upon this replication the Defendant demurred and for cause shews that he doth not shew what writ he sued forth as he ought to do otherwise it cannot be known whether he be rightly thereby intituled to his Action or no. 2ly He hath not shewed the continuances upon his proceedings and so it cannot be known whether his Action be discontinued or no that if it be we may take advantage thereof 3ly He doth not say that he hath taken out an Original prout apparet per Recordum as he ought to do for we do not agree the writ that he pleads he hath taken out 4ly He hath concluded his plea so that it amounts to a new assignment and hinders us from objecting against it by way of rejoynder and he joyns an issue of his own head of a matter not alleged before and 5ly The Action is for a Trespass done in 1645. and yet he concludes it to be contra pacem publicam which being in the late Kings time could not be but ought to have been contra coronam et dignitatem nostram Latch on the other side said that both parties agree to the Original and the disagreement is only in the time of the execution thereof and it is not necessary to say prout patet per recordum nor is it necessary to shew the continuances of the process for this would make the Record too long and here is no hinderance but they may rejoyn if they have cause Pâ—â—a Error Roll chief Iustice As to the first Exception it is not necessary to set forth the particulars of the writ and if the writ be not good you may have a writ of Error and for the second exception the plea is good without shewing the continuances and there is no inconvenience by not setting them forth and we will intend that all is rightly done because you have appeared and you are not hindred from replying but may do it if you will and have cause and the Record here shews that you have appeared to this writ but it is not good to conclude the plea super totam materiam as you have done for by this he is hindred from replying and then he hath good cause to demur because you have concluded him and what say you to that Latch The party may strike out the words Et querens similiter Roll chief Iustice He cannot strike out that which belongs not to him Replication Demurrer and you cannot go back and the other is compelled to demur Therefore Nil capiat per Billam nisi c. or waive the Demurrer Postea Trin. 1652. Banc. sup IT was said in the case of Homes and Bingley Who may make a lease to try a title that Tenant at will may make a lease for years to try a title of land and so may a Copy-holder Q. Trin. 1652. Banc. sup BY Roll chief Iustice What plea an Attorney may plead without a special warrant An Attorney who hath warrant to appear for his Clyent may plead for him without warrant But the Clarks in Court said he may plead no other plea without a special warrant but a non sum informatus ideo Q. Peck and Ewre Trin. 1653.
Banc. sup Pasch 1653. rot 116 or 117. A Writ of Error was brought to reverse a judgement given in an Action of debt for rent arrear upon two leases for years Error to reverse a judgement in debt for rent viz. upon a lease for 3 years of divers Copyhold Lands and upon a lease for 31 years for other lands Howell assigns for Error 1. That the Declaration is not good because that it is for an entire rent reserved for 2 several terms whereas one of the terms is expired here cannot be made any apportionment of the rent because it appears not which of the lands are Copyhold and which are Free lands Roll chief Iustice He ought to shew how much of the lands are Copyhold and how much Freehold Hales Here is but one entire rent reserved and it shall be paid as well after the expiration of the Copyhold lands as before Roll chief Iustice Discontinuance Then for what term shall the rent be reserved for it doth not appear to us Therefore you were best to discontinue your action otherwise if we give judgement upon the Exception taken you may lose your rent Hill and Dechair Trin. 1653. Banc. sup AN Action of debt was brought for 5 l. for selling of Wine without Licence Arrest of judgement in an Action upon the Statute for selling wine without license and a Verdict was found for the Plaintif It was moved in Arrest of Iudgement That the Action is not well brought because it is not by Original as it ought to be by the Statute of 18 Eliz. Wild on the other side answered that it is not necessary to be by Original for a Bill of debt as this is is in the nature of an Original writ if it should be otherwise the Statute would be repugnant for the debt one by Statute may be recovered in this Court by Information and this is the usual practice of this Court. Twisden took a difference between a penal Action and a popular Action A penal Action he said may be by Bill but not a popular Action 2ly It is not shewed that the party was not licensed to sell Wine 3ly The Verdict finds him guilty for selling of 5 pints of Wine between such a time and such a time Relation Action part where of was before the Information brought and part after the Information brought To the last exception Roll chief Iustice answered The matter shall relate to the filing of the Bail for then the Action beginneth not before But what say you to the other Exception Wild That is mistaken for the Action is upon another branch of the Statute Roll chief Iustice By an original Action it is meant in the Statute that the offence shall not be tryed upon a plaint in an Inferiour Court not to distinguish it from an information for a Writ Bill is all one in this Court Stat. 2 R. 3. A Bill is not an Original writ Writ Bill but an original Action and it is the common practice to sue in this Court in this manner But we will advise At another day the Court was moved for judgement because the Action is well brought though it be not brought by original and the Case urged of Winston against it is not to the purpose for that Case was not upon an information as our Case is but it was brought by the party grieved to recover his treble damages and in that case the party did not pursue the manner of suing for them as the Statute directed but we have here done it and it is the constant practice of this Court. Twisden answered that Winstons case is not answered for that was a popular Action as our case is Roll chief Iustice The question here is whether there be an original Action or not upon the Statute of 18 Eliz. C. 5. And I say it doth not appear whether that Statute meant to out this Court of its Iurisdiction or not but it is left at large in the Statute and me thinks it is an original Action Iurisdiction and Plats Case is that an original Action may be by Bill And I conceive the Statute intended only to exclude inferiour Courts and the constant course is that the party being in Custodia Marescalli he may be proceeded against by Bill and we will not suffer this Court to be excluded from its jurisdiction by obscure words in the Statute Therefore let judgement be for the Plaintif nisi c. Ricott and St. Iohn Trin. 1653. Banc. sup IN Action of Trespass an Ejectment brought by Ricott against St. Iohn Motion that the Defendant may plead as a third person shall direct the Court was moved for a third person that he will save the Defendant harmless and prays that giving him security so to do the Defendant may be ordered by the rule of this Court to plead as he should direct him and that he be not suffered to confesse a judgement Roll chief Iustice It is out of the way for you to give such security for there yet appears no collusion But you shall be made a party to defend the title and then move again Trin. 1653. Banc. sup IN the Case of one Clark it was said by Roll chief Iustice Where a day is taken inclusive where exclusive Arbitrement That if the submission to an Award be that the Award be made six days after the submission the day of the Award is to be taken inclusive and not exclusive so that if the Award be made the same day on which the submission was it is a good Award Ayre and Hauxesworth Trin. 1653. Banc. sup AYre brought an Action of Trespass against Hauxesworth for his Cattels damage feasant in D. the Defendant justifies in another County Whether a Traverse was well taken and traverseth absque hoc that he is guilty in D. or in any other place The question was whether the traverse be well taken or not Roll chief Iust answered he must take a traverse as this case is because the justification is local Traverse Discontinuance Therefore let the Plaintif take nothing by his Bill for he may not discontinue his Action because it is in Trespass Nota. Fletcher and King Trin. 1653. Banc. sup A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Action of debt 〈◊〉 â—â—â—ght upon an assumpsit to save one harmless Error to reverse a Judgement in debt upon an Assumpsit in disposing of certain good â—sâ—ised by an Order of thâ— Commissioners of Haberdashers Hall 〈◊〉 â—â—sendant 〈◊〉 that he had saved him harmess The Plaintif replyed that he was damnified the Defendant rejoyns by protestation that there was no Order of Haberdashers Hall for plea saith non damnificatus and upon this the Plaintif demurred in the Common Pleas and a judgement was given there upon the Demurrer for the Plaintif In the writ of Error here the Error assigned was that the rejoynder is a
have judgement though the Bar was not good Rawley and Vivers Trin. 1653. Banc. sup A Writ of Error was brought upon a judgement given in an Action of Trespass quare clausum fregit c. The Error assigned was Error to reverse a judgement in Trespass quare clausum fregit Value that the Plaintif did declare quare clausum fregit and for pulling down of his house but doth not shew the value of his house Roll chief Iustice It is not necessary the Action being a real action Affirmetur nisi Bariar and Windham Trin. 1653. Banc. sup IT was held by the Court that the Engagement taken before 2 Iustices of Peace in Ireland is well taken What engagement is well taken and that the Engagement ought not to be pleaded to an Alien born and subject to any forein Prince in amity with England because he is under another obedience and thereupon the Engagement pleaded to such an one was discharged in the Case of one Bariar and Windham Trin. 1653. Banc. sup ONe who was a witnesse in the cause for the Defendant being bail for him upon motion to the Court was taken off from the file Who may not be bail and another bail taken in his room in Court upon examination of his sufficiency Nota. Trin. 1653. Banc. sup THe Court was moved to dispauper the Plaintif in an Action of Trespass and Ejectment Motion to dispauper the Plaintif for that it was proved by Affidavit that he was a very vexatious person for he had béen thrice nonsute in this Action would never pay costs or make a sufficient Lessee able to pay them and had also sealed a general release to the Defendant Roll chief Iustice Let him be dispaupered and let him put in an able Lessee to pay the costs or otherwise he shall not proceed in his Action Trin. 1653. Banc. sup BY Roll chief Iustice Laws of England and Ireland all one Error The Laws of Ireland are all one with the Laws of England and a writ of Error lies in England to reverse a judgement given in Ireland Trin. 1653. Banc. sup A Declaration was filed in the Ofice against one in custody of the Mareschal What is not good notice to a prisoner of a declaration against him Iudgement discharged and a Copy of it was left with the Clark of the prison but the prisoner had no notice of it Vpon the prisoners shewing of this matter to the Court and reading an Affidavit to prove it a judgement by a nihil dicit obtained against him was discharged and ordered that the Plaintif should accept of a plea. Trin. 1653. Banc. sup THe Court was moved to discharge a prisoner out of the Vpper Bench that had lain there ever since 14 Caroli To discharge a prisoner that had long lain in prison upon a judgement obtained against him in an Action of Debt where only common bail was filed and because no execution was ever taken out upon that judgement and the Plaintif in the Action was now dead Roll chief Iustice Let him be discharged nisi causa shewed to morrow Nota. Trin. 1653. Banc. sup BY Roll chief Iustice Matter of Record not alterable without motion to the Court. A matter entred upon Record cannot be altered without a motion made and the Consent of the Court first obtained though the Attorneys on both sides consent to it Trin. 1653. Banc sup THe Court was moved to quash an Order of Sessions for one to pay 3.5 a week to keep a Bastard Child To quash an Order of Sessions Roll chief Iustice Let it be quashed for they can make no such Order for the party may keep the Child himself if he will and then he need pay no money to keep it Trin. 1653. Banc. sup BY Roll chief Iustice When the Venue may not be changed The Venue cannot be changed after a Plea pleaded in abatement of the writ much lesse after a plea pleaded in Bar. Q. Fanshaw and Bond. Mich. 1953. Banc. sup IN this Case it was said That if a Copyholder refuse to pay a reasonable fine or to be admitted to the Copyhold How a Copy-hold is forfeited This is a forfeiture of his estate Dekin and Turner Mich. 1653. Banc. sup VPon a motion in Arrest of Iudgement in an Action upon the Case for these words Thou art a whore and I will prove it Arrest of judgement in an Action for words It was said by Roll chief Iustice That the words are not actionable although spoken since the Act made against Adultery because they are but words of heat and choler but if a special damage be laid by the speaking of them as per quod maritagium amisit or the like there they are actionable Price and Goodrick Mich. 1653. Banc. sup IN this Case it was said by Roll chief Iustice Where an Audita querela lies If there be a Iudgement against three and one of them is taken in Execution and be afterwards set at large by the Plaintifs consent if any of the other two be afterwards taken in execution upon the same Iudgement he may have an Audita querela Motion but he cannot be relieved upon a motion in Court though grounded upon an Affidavit Newton and Osborn Mich. 1653. Banc. sup NEwton brought an Action of Covenant against Osborn an Executor to a Lessee for years for non-payment of rent reserved upon the lease upon the general words yielding and paying in the lease Whether an action of Covenant did Fe or not against an Executor there being no express Covenant therein for the payment of the rent The question was whether this Action did lie against the Executor Latch argued that it did not lie because it is a meer Covenant in Law comprised only in the words yielding and paying and not an express Covenant and so only binds the Testator but not the Executor But Roll chief Iustice answered That an Action of Covenant doth lie against an Executor upon a Covenant in Law Covenant Executor although he be not named but it is otherwise of an heir for he is not bound by such a Covenant And the reservation of the rent here doth seem to be an express Covenant for it is the agreement of both parties viz. of the Lessor and Lessee Iudicium nisi Benskin and Herick Mich. 1653. Banc. sup BEnskin brought an Action of Debt upon an Obligation against Herick A Plaintiff lost his mony by joyning false issue a Verdict against him The Defendant pleads that he tendred the mony due upon the Obligation at the day and place of payment and that the Plaintiff refused to receive it Vpon this the mony was brought into Court by rule upon the Defendants motion the Plaintiff joyns issue that there was no tender and refusal and upon this a Tryal was had and a verdict found for the Defendant that he did make tender and that the Plaintiff did refuse to receive the
where it is and by the construction that we make of the Proviso all the Will may stand together but by another construction it cannot Elizabeth shall have a special entayl with her Husband by the last clause and yet the general Estate tayl given in the former part shall stand and we are in the interpretation of Wills to consider circumstances and conjectures and there are two publications found in this will although this doth not appear upon Record and so comes not in judgement Roll chief Iustice We are all of one opinion that judgement ought to be given for the Defendant If the first clause in the Will continue uncontrolled by the Proviso it is for the Defendant but if it continue not uncontrolled it is for the Plaintif and we hold that the first clause is not controlled for we ought not to make any part of a Will void if all the parts of it may stand together and this cannot be here if the Proviso should controll the former part Revocation and to make it repugnant but if the Proviso could stand with the former part of the Will it might revoke the former part and if this Proviso had been made after the Will it might have altered the Case but that appears not And we must collect the Testators meaning by the Will Intention and by the Will it cannot be understood that the Proviso should be void and the common reputation of Mill and Mills to be the same name shall not make Mill to be the Testators true Sirname and the Testator intended his Daughter should marry one of his own true Sirname and not one of his reputative name for this is a special case and goes not according to the ordinary rules of names that sound alike and it cannot be intended that the Testator did mean to destroy one part of his will by another part A general clause in a grant shall not extend to a particular thing provided for in the grant much less shall it do so in a Will Therefore let judgement be for the Defendant nisi Mich. 1652 Banc. sup AN Action of the Case was brought by one that kept a Victualling house Arrest of Iudgement in an Action for words for speaking these words of her There was a man killed in her house and she concealed the murther Vpon a rule to stay judgement till the Plaintif should move Wild moved for judgement because he held the words to be actionable in that they amount to a scandal of the Plaintif as well as they tend to cause her to be fined and imprisoned Roll chief Iustice Fine Imprisonment She shall not be fined and imprisoned except she receive and comfort the party that killed him but the words are scandalous and the Case differs from the Cases put on the other side Twisden for the Defendant urged that it was not averred that the Plaintif did know of the murther Roll chief Iustice The words imply she knew of the murther for how else could she be said to conceal it Bowlstrode for the Defendant said That it doth not appear by the Record that any man was killed in the house nor any time when nor is it said the Defendant spoke the words of the Plaintif Case but only by an innuendo Roll chief Iustice The words are actionable to say that thou hast murthered a man without averring that he is killed but if it appear by the Declaration that the man was alive after the words spoken it is otherwise And here if no man be murthered the feigning of a false thing makes the words the more actionable by saying she concealed a murther where there was in truth no murther done But the greatest doubt here is whether because admitting a murther were done the Plaintif is to be but fined and imprisoned for the concealing it the words can be actionable And I hold they are actionable notwithstanding because they are scandalous Endictment Declaration and he said that in an Endictment a thing must be expressed to be done false et malitiose because that is the usual form but in a Declaration those words are not necessary Therefore let the Plaintif have his Iudgement nisi Mich. 1653 Banc. sup IT was held by the Court that a Constable cannot be sued out of the County where he is Constable for a thing done by him in execution of his Office A Constable not to be sued out of his County but for other matters he may Elston and Drake Mich. 1653. Banc. sup ELston brought an Action of Debt for rent due upon a lease for years Error to reverse a judgement in debt for rent as being Administrator to I. S. and declares for rent due since the death of the Intestate and hath a verdict and a judgement in the Common Pleas. Drake brings his writ of Error here to reverse this judgement The Exception taken was that it doth not appear by the Declaration whether this rent sued for doth belong to the Administrator or not for he makes himself no title to it and for ought doth appear it may belong to the heir and not to him Wadham Windham on the other side This is no Exception now after a Verdict but if it had been upon a Demurrer it would have been good and we do not declare that the Intestate was seised in see who made the lease and so it may well be understood that he had but a lease of this land did let an under lease to the Defendant and the better construction shall be made for us Hales on the same side said non detinet is pleaded and the Iury hath sound detinet which would be impossible if the Intestate had been seised in fee and there is a double intendment that the rent is reserved upon a lease for it is reserved to Executors and not the heir Maynard on the other side said the Verdict helps nothing because the Declaration is naught in substance in our case for the Plaintif therein hath made himself no title to the rent and all that is in the Declaration to intitle him is expressed but by way of inference or conclusion and for the reserving the rent to the Executors this had been good if the rent had grown due during the time of the Intestate The Court moved the parties Amendment Tryal Costs that by consent the Declaration might be amended paying costs and that a new tryal might be had by consent which was agreed unto and so ruled Bedwell and Fenwick Mich. 1653. Banc. sup BEdwell brought an Action upon the case against Fenwick Arrest of judgement in an Action upon a promise and declares that the Defendant in consideration that the Plaintif would marry E. his Sister he would give his Sister 300 l. for her mariage portion upon his mariage with her and for breach of this promise brings his Action and obtains a verdict against the Defendant The Defendant in Arrest of Iudgement urged that the breach
and upon this the Defendant demurred and upon the Demurrer the Case was this A Lease was made for one year the Lessee covenants for him and his Assigns to pay the rent so long as he and they shall have the possession of the thing let the Lessee assigns over his Term the Term expires the Assignee continues the possession after the Term expired and for rent behind by the Assignee after the expiration of the Term the Lessor brings the Action and the question was whether here be such an Assignee that the Action will lie against or not Roll chief Iust held that though here be not an Assignée strictly Assignee Covenant according to the rules of Law yet that he shall be accompted such an Assignee as is to perform the Covenants made between the parties and ruled the Defendant to shew cause why the Plaintif should not have judgement Nota. Wood and Markham Hill 1653. Banc. sup VPon an Ejectione firmae brought For a restitution after an habere facias possessionem executed and a Tryal thereupon had a Verdict was found for the Plaintif but upon an agreement made betwéen the Plaintif and the Defendant the Defendant was to hold the land recovered the remainder of his Term to come and according to this agreement he held it for 2 years but afterwards before his term expired the Plaintif takes out an habere facias possessionem and executes it Serj. Bernard moved for the Defendant upon this matter shewed to the Court That the Defendant might have a rule for restitution But Roll chief Iustice answered It cannot be Restitution but you must have your Action upon the Case against the Plaintif for not performing his agreement Case for the Act seems to be unconscionable Masters and VVallis Hill 1653. Banc. sup Pasch 1652. rot 581. A Writ of Error was brought in this Court to reverse a Iudgement given in the Common Pleas in an Action of Trespass quare vi et armis and the Error assigned was Error to reverse a judgement in Trespass quare vi et aâ—mis that the Trespass is concluded to be contra pacem c. but doth not say publicam Twisden answered that it is well enough because the Action was comment'd by Original but if it had been by Bill it would have been otherwise Roll chief Iustice It is the use in the Common Pleas to make such short recitals but in the beginning of the Record here it is recited at large and if it were not recited at large it would not be good Recital but for the matter it self it is matter of substance and generally it ought to be concluded to be contra pacem publicam yet it is good here as it is for the reasons before alleged Affirmetur judicium nisi c. Hill 1653. Banc. sup VVIld moved against a Sherif that he may not be admitted to file the retorn of a writ directed to him Against filing a return of a writ because an Action upon the Case is depending against him for not returning this writ and if he should now be admitted to file the return he would thereby abate our Action Roll chief Iustice If the writ be not filed it shall not be filed till the Court be moved but he cannot file it as of this Term though he should file it for the return of the writ as it seems is long since past but if the retorn be already filed you move too late Swan and Fenham Hill 1953. Banc. sup Trin. 1650. rot 1072. IN an Action of Trepass and Ejectment a special Vâ—rdict was found Special verdict in Trespass and Ejectment and in it this Custom viz. That the Owners of Houses in the Town of New-Castle in fee simple may devise them by Paroll but not Tenants in tayl and it was further found that the Testator was seised of the Houses in question in fee tayl in possession and of the remainder of them in fee-simple and so seised did devise them by Paroll The question was whether this devise was warranted by the Custom Shafto argued that the Custom did not warrant this devise because Customs are not to be enlarged by construction but are to be taken strictly and according to the letter because they run in abridgement of the Common-law and so are not to be favoured 9 E. 3. f. 38.11 H. 4. f. 33.5 H. 6. f. 51. Next here are immaterial words found in the Verdict for if it be the Custom for Tenant in fee-simple to devise yet this extends not to tenant in tayl 27 H. 6. f. 5.21 E. 4. f. 24. and a devise of rent to be issuing out of these Houses is not good within the Custom although that a rent doth follow the nature of the Land 22 Assis pl. 78.26 H. 8.54 It is true Cook in his Littleton f. 111. saith that one may devise a rent in remainder but I deny this for the authorities of the Books are against him An estate in remainder is not Assets nor can be devised 3 H. 7. f. 23 24. a condition goes to an Estate tayl not to a fée-simple in remainder 6 Rep. f. 33. And here is but a power of an Estate and not an Estate in possession Lit. sect 137. And the finding here that the Tenant in tayl did die without issue is not material for this could not be known at the time of the devise and the devise takes its effect in the time of the Devisor 27 H. 8. Dyer 45.5 Eliz. Dyer Bishops Case 1 Rep. Archers Case f. â—6 2ly Here is no Custom found to intitle the party for a Town cannot have a Custom as it is here found though a Borough may 22 Ass 178 and this is not found to be an antient Vill 7 H. 6. Dyer 22 H. 6. Fitzh praescript 47. Next the Custom is not found that Burgers may devise as it ought to be Turner Iohn on the other side held that some Estate doth pass by the Will and it matters not what Estate passeth and the Owners of Houses in our Case shall be intended to be Tenants in fee-simple and it is not necessary that they be Tenants in fee in possession Perkins devises Plowd 262. Dyer 22.22 Eliz 371. p. 5. and the Custom here found is no more but an ordinary Custom common to other Boroughs and it shall not be intended a special Custom And this case may be resembled to Cases upon the Statute of 32 34 H. 8. for devising of Lands 10 Rep. f. 81. Trin. 34 Eliz. Benefilds Case there cited and 35 Eliz. Howards Case which prove that reversions may be devised Nat. brev 199. a. Perkins Devises Pl. 540. is the very Case in question and the Cases put on the other side come not to our Case Roll chief Iustice It is not necessary in a special Verdict to be so precise as in pleading Special verdict but something may be supplyed and the verdict hath found that he was Owner and that the
assigned for it is that he paid not the mony for which the Plaintiff was bound with him at such a day according to his promise Twisden on the other side said that the consideration is to pay the usury for the mony for which the Plaintif was bound with the Defendant which is not a good consideration for it is against the Common-law to let mony for usury and so it was adjudged 2 Car. and the Statutes do but tollerate the taking of usury for monies 2ly Here is no time of the consideration set forth Latch The usury here is no more than the Statute allows and so it is a good consideration Alleyn The promise declared upon is double 1. to pay mony 2ly To save harmless and the breach is assigned generally Case and not particularly as it ought to be Roll chief Iustice If two breaches be assigned and the one well assigned and the other not yet the Action lies well enough but here is but one breach assigned viz. the non-payment of the mony at the day And for the other matter I hold it a good consideration to assume to save one harmless from paying of Vsury Consideration and the usury here expressed is lawfull by the Statute and so it hath been resolved since 2 Car. and therefore let judgement be for he Plaintiff nisi Turner and Trapes Hill 1653. Banc. sup TUner brought an Action of Debt upon a recognisance in the Pettibagg The Defendant prayed oyer of the Condition there Motion to alter a Plea in the Pettibagg-Office and had it afterwards he shews this matter to this Court and prays in regard he had mistaken his plea that he may replead Roll chief Iustice This cannot be granted upon motion here for if the issue be joyned in the Pettibagg you must try it we can make no rule but by consent Hill 1653. Banc. sup VVAdham Windham moved for his Clyent To plead specially that he might have liberty to plead secially in an Action of Trespass and Ejectment and not generally not guilty Roll chief Iustice For what cause VVindham Because there hath been matter given in evidence at a former Tryal which ought not to have been Roll chief Iustice proceed according to the course of the Court if the other will not consent you shall not plead specially yet let him shew cause why you may not plead specially Barker and Elmer Hill 1654. Banc. sup THe Case was this Whether a Mis-tryal or no. one of the Iustices of Assize falling sick and dying at Chelmesford in Essex the Assises were adjourned to Brentwood in the same County afterwards and before the sitting at Brentwood the other Iudge fell sick and dyed at London and a new Commission issued forth to authorise another Iudge to sit at Brentford according to the adjournment and there a Tryal was had upon the old Iurata retorned before the other Iudges The question was whether this were not a mistryal in regard there was not a new Iury retorned The Case was divers times moved and the Court took time to advise but at length Roll chief Iustice delivered the opinion of the Court Mis-tryal that this was not a mis-tryal because the death of the Iustices was not material to make it void for the Iustices are not named in the Iurata but the Cause is expressed generally to be tryed by the Iustices And he said that he held it for a rule that if a Clark mis-enter a thing usual in matter of form Mis-entry Amendment it is to be amended but the error of the Iudge may not be amended and he cited these Presidents Mich. 13 Car. Sawyer and Hortons Case in this Court and Hill 15 Car. Belch and Fates case in this Court Hill 1654. Banc. sup AN Action of Assault and Battery was brought against two Motion to strike one Defendant out of the Declaration one of them pleads his privilege of Parliament and the other non cul The Plaintif moved the Court the he might strike him out of the Declaration who had pleaded the privilege and might proceed against the other only But the Court would make no rule but bid the Plaintif proceed as he pleased at his own peril Hill 1653. Banc. sup ONe Cock was committed by the Court for delivering a Bill of Midlesex to arrest one as he was coming to the Court about his occasions Commitment for contempt to the Court. but was presently released paying the fees and discharging the party arrested and the Bailif was reproved but not committed because he said he knew not that the party had any business in Court and that he arrested him out of the Hall Nota. Hacker and Newborn Hill 1653. Banc. sup IT was shewed to the Court that the Plaintif had heretofore had a tryal at the Bar for the same thing for which he now brings his action To stay proceedings till costs paid in a former Action and that it went then against him but he hath not yet payed the Defendant his costs and now brings a new Action It was therefore prayed that he may pay the Costs taxed in the former Action before he be suffered to proceed in this Action Roll chief Iustice Let it be so ruled Higgs and Harrison Hill 1653. Banc. sup Mich. 1653. rot 429. HIggs brings an Action of Trespass quare clausum fregit against Harrison an Attorney of the Common Pleas. Demurrer to a plea of privilege by an Attorney The Defendant pleads his privilege by an Attorney and to this plea the Plaintif demurred the question was whether he may plead this plea by Attorney or ought to plead it in proper person Latch argued That he ought not to plead it by Attorney for this plea is not a plea to the jurisdiction of the Court but it is only a prayer to the Court and he might have done it ore tenus and pleading it by Attorney his plea cannot be entred for then the plea of privilege would be destroyed in making him to attend Every one by the Common Law ought to appear in person and there is no Statute Law nor usage that authoriseth an Attorney to make an Attorney to demand his privilege 2ly It is against the dignity of this Court that he should be admitted to do it 3ly By making of an Attorney he destroys the very reason why he claims his privilege which is to be spared of his attendance which he needs not if he make an Attorney and his making of an Attorney here is a general warrant to defend other causes as well as this and the Case of an Essoign objected makes for me which is but to pray an excuse and after an Attorney made one cannot cast an essoign except it be where the Attorney cannot answer 4 Ed. 3.34 And there is no authority can be shewed that he may make an Attorney But on the contrary part there are many presidents where Attorneys have prayed their privilege in person and these me
seems should make the Law in this Case Dyer 33 H. 8. is the express case Attorney 20 H. 6.32 The Court advised At another day Roll chief Iustice said That the opinion of the Court was that an Attorney may plead his privilege by an Attorney and there is no inconvenience follows by doing it but it is true the Presidents are both ways and it is not contrary to any thing he hath done and it may be he is sick or hath business in another Court where he is necessarily attend Therefore let his plea be allowed nisi Leake and Reynolds Hill 1653. Banc. sup LEake brought an Action of Debt upon an Obligation against Reynolds Special verdict in debt upon a bond The Defendant pleads non est factum the Iury upon issue joyned find a special verdict to this effect That the Plaintifs Declaration is upon an Obligation dated the 24 day of the month and they find that the Obligation was sealed and delivered the 27 day of the month but bears date the 24 day and whether this shall be accompted the same Obligation upon which the Plaintif declares or not is left to the Court to determine Green for the Plaintif said that this case is the same with Goddards case and there it was adjudged a good deed 12 H. 6. f. 1. Dyer 247. and in the end of Goddards case the case in point is adjudged Roll chief Iustice This is a plea in Bar Plea and not in abatement therefore take your judgement Hill 1653. Upper Bench. BY Roll chief Iustice What is not slanderiâ—g a title If one hath colour of title to land an Action of the Case will not lie against him for saying I have better title to the land than you though his title be not so good as the others title is Nota. VVingfield and Valence Hill 1653. Banc. sup Hill 1650. rot 1409. LAtch moved to have restitution of monies out of the hands of a Sherif For resti ution of monies in the Sherif-hands which he had levied upon an execution taken out of this Court because it issued forth erroniously for before the Execution taken forth the Defendant brought his writ of Error in the Chequer Chamber to reverse the judgement and the Record was removed thither and although the late Statute say that a writ of Error shall be no supersedeas to stay execution yet the Record being removed into the Exchequer Chamber no execution can be granted out here for here is no Record to warrant it Roll chief Iust The case being moved again at another day till when the Court would advise said The Record is removed by a writ of Error in the Exchequer Chamber and is not now before us nor was at the time when the Execution issued forth and this being after a verdict and a judgement the writ of Error is no supersedeas and so it is mischievous both ways Mischief Supersedeas but how can we help it yet take a supersedeas quia erronice to supersede the execution for it was ill awarded and take the moneys out of the Sherifs hands Nota. The Protector and Captain Streeter Hill 1653. Banc. sup CAptain Streeter was brought in Court by habeas Corpus For delivery of a Prisoner appearing upon a Habeas Corpus and upon the return read and filed it appears that he was committed by an Order of Parliament for publishing scandalous and sedilious books Twisden moved that the prisoner might be bailed because that the Parliament is now dissolved and by consequence the Order by which he was committed is of no sorce Mr. Attorney General on the other side urged that the Parliament was not dissolved but only the meeting of those persons in Parliament was dissolved for the Parliament by the antient Law is to be every year so that this is but in effect an adjournment and not a dissolution and besides this matter for which the prisoner stands committed cannot be here inquired of and so the cause of his commitment shall be intended to be good and the Parliament may commit without shewing the cause of the commitment and this commitment may be in order to his Tryal and the Prisoner is not without remedy for he may apply himself to the supreme Authority to whom the Parliament have resigned their power Twisden for the prisoner confessed that this Court cannot be Iudge of the Parliament but this Order by which he is committed differs from an Act of Parliament for this is temporary and determineth and although the authority of Parliament ceaseth not yet a particular Parliament may be dissolved as this was Wad Windham When a Parliament is dissolved the procéedings there are determined Flowrdews case 1 H. 7. the Latine case and the Parliament is now dissolved and not adjourned and a Parliament dissolved is not like the Courts of Iustice here in the Vacation time Wild This case is not like to the case where this Court remaunded a prisoner committed by the Parliament sitting the Parliament for the prisoner here is coram Protectore who may deliver him Captain Streeter Mr. Attorney labours to afperse me but shews no cause or crime for my commitment and I am here before the Protector in his own Court Attorney General Only the persons and their convention is dissolved but not the Court no more than this Court is by the demise of the King or in the Vacation time and I must refer it to the Court how far you will intermeddle in this case and this Order by which he stands committed may be his judgement there and then he cannot be delivered and I know no difference betwéen an Order and an Ordinance of Parliament and the stamp and authority of Parliament is upon this order and if the prisoners Counsel say true then he may have an Action of false imprisonment against his Gaoler Twisden Here is no Order of the Parliament returned but it expresseth that he was committed by the Speaker by vertue of an Order of the Parliament Roll chief Iustice We examine not the Orders of Parliament but the question is whether the Order doth now continue Order of Parliament Dissolution and I conceive it is determined by the dissolution of the Parliament and so would it have done by prorogation of the parliament because there is another Session and we can judge no otherwise of Orders of Parliament but by the words of them Ask Iustice If one that is committed by Order of Parliament cannot be delivered until another Parliament the peoples liverty will be lost for there may not be a Parliament in many years Roll chief Iustice A new Parliament hath not reference to the old but it is a new Court created upon new Summons and why may not the Prisoner be bailed without these disputes although he may apply himself elsewhere But the Court would advise because they perceived the prisoner stubborn At another day Mr. Attorney upon the prisoners appearance again upon his Habeas
Corpus said that he had no more to say than what he had formerly offered only he added that it was a tender and a leading case and therefore to be well advised of Roll chief Iustice For the first part of the return Return I conceive it too general for it doth not appear in what the books are scandalous for the publishing whereof he was committed 2ly I conceive that the Order of Parliament ceaseth with the Parliament Order which is dissolved as an Order of one Session of Parliament ends with the Session Committee and is not like an Act which continues after the Parliament and all Committees made by order of Parliament do cease by dissolving of the Parliament but those which are made by Act of Parliament doe continue afterwards and this individual Parliament being dissolved they can now make no further order Bail and so the prisoner may lie perpetually in prison and he hath already lain long in prison and therefore it is reason he should he bailed The prisoner was admonished to be quiet and not henceforth to disturb the State The prisoner was ordered to bring sureties to be bound in 500 l. for his appearance here the next Term and sic de die in diem until Mr. Attorney will proceed against him if he will proceed at all Hudson and Dickenson Hill 1653. Banc. sup THe Court was moved on the behalf of the Plaintif For entry of a Nil capiat per Billam for expedition that a Nil capiat per billam may be entred against him for expedition in an Action of Trespass for taking away his Cattel wherein he had obtained a Verdict because he had declared for taking away 6 Mares and Colts and did not shew how many Mares and how many Colts particularly Roll chief Iustice Let a Nil capiat per Billam be entred Pinchard and Fowke Hill 1653. anc sup PInchard brought an Action upon the Case against Fowke Arrest of Iudgement in an Action upon an Assumpsit upon an Assumpsit and declares that the Defendant in consideration that the Plaintif would forbear to protest a Bill of Exchange drawn upon the Defendant that he would pay the moneys when he should next come to London And upon an Issue joyned and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that here is no consideration set forth to ground the promise upon for he doth not shew that he came to London but shews that he dyed at Plymouth and came not to London Roll chief Iustice Consideration Duty The coming to London is alleged to no purpose for the payment of the money was a duty and the monies to be paid were received beyond Sea and so is a duty and made a good consideration therefore let the Plaintif take his Iudgement Pasc 1654. Banc. sup IT was said by the Court that when an Informer hath attached his Action in a Court another Informer cannot inform for the same thing A good plea against an Informer and it he do it is a good plea in Bar to the second Informer that an information is depending against him for the same thing Note Trin. 1654. Banc. sup BY Roll chief Iustice A Bailif of a liberty hath return of writs How a rescous is to be expressed Bailif and therefore a rescous made from him must be expressed to be out of his hands but a rescous made from the Sherifs Bailif must be expressed to be out of the hands of the Sherifs Bailif for the Bailif is but the Sherifs servant Patnell and Brooke Trin. 1654. Banc. sup THe Court was moved upon an Affidavit to stay Execution upon a judgement given for an Administrator To stay execution upon a judgement Audita querela because the Letters of administration were repealed before the judgement entred Roll chief Iustice The matter comes not legally in question before us you must bring your audita querela yet let Hern the Secondary examine it Trin. 1654. Banc. sup THe Court was moved for a writ of Distringas against the Inhabitants of a Town in Huntingtonshire For a Distringas against Inhabitants of a Town Plea for throwing in of banks of the Earl of Bedfords in his drained lands Roll chief Iustice Take it but at the return of the writ the Inhabitants may plead to you notwithstanding Noy the late Kings Atturney would not have suffered it Note and the Sherifs of London Trin. 1654. Banc. sup AN Action upon the Case was brought against the Sherifs of London for not returning a fieti facias The Defendants plead not guilty Moved that the Defendants might plead specially and a Iury was returned to try the issue and after the Defendants filed the return of the Scire facias Wadham Windham moved that the Defendants might waive their general plea of not guilty and might plead specially viz. That they had executed the writ Roll chief Iustice Amendment You have pleaded already and it is in our power whether we will suffer you to alter your plea or not and we will not doe it without the Plaintif will consent therefore make the best of that plea you have pleaded upon your tryal Oyles and Marshall Trin. 1654. Banc. sup VVIld upon a rule to shew cause why a Prohibition should not be granted to the Court of Policy of assurance in London Against granting a Prohibition to the Court of Policy of assurance shews for cause that the Defendant had pleaded there and the Plaintiff had replyed and that the cause was ready for Tryal and that the principal matter was fit to be tryed there and they had authority to try it Roll chief Iustice If they have Iurisdiction of the principal matter they have also Iurisdiction of all matters incident thereunto Iurisdiction Tryal and they may try them according to the course of their Law so that it be not contrary to the Common-law Therefore discharge the former rule Trin. 1654. Banc. sup BY Roll chief Iustice Who of common right are to repair a Sea-wall If no particular person by Custom be bound to repair a Sea-wall wherein a breach is made the whole Level are bound to do it Trin. 1654. Banc. sup VPon evidence given in a Tryal at the Bar between Sir Iohn Bridges How a Will may be revoked and my Lord Chandois it was said by Roll chief Iustice that one may revoke a Will in writing by Paroll and may revive it again by Paroll Trin. 1654 Banc. sup THe Court was moved for a Habeas Corpus for one out-lawed in felony For a Habeas Corpus because he cannot be tryed there where the felony was done untill the Outlawry be reversed But it was prayed for the Protector that a Habeas Corpus may not be granted because the Prisoner stands committed for divers felonies and rapes Roll chief Iustice He shall be brought hither by a Habeas Corpus to reverse the Outlawry but we
estate may pass by Attorney and so although here be but a bare power given yet it is well executed notwithstanding his death that gave it 2ly This Letter of Attorney was not countermandable by the Copyholder himself during his life and therefore it shall not be countermanded by his death and though it had been countermandable during his life yet it being not countermanded by him in his life his death shall not countermand it and the custom doth strengthen this power Next this custom is not contradictory for here is no Attorney made but a writing made in the nature of a Letter of Attorney and a power to surrender given by it and it is no more than for one Copyholder to surrender for another which is usual and in Cooks 9 Rep. f. 76. A Copyholder is called an Attorney also Copyhold estates are made by customs and therefore such customs which are to confirm estates are to be favoured in Law although they do differ from conveyances of estates at the Common Law and this custom is not only reasonable but convenient also for the passing of Copyhold estates And this custom enlarges the power of alienations and such customs have generally been admitted good though different from the Common Law And when a custom is become a Law it is very dangerous to alter it and the doing of it would overthrow many estates Ellis Sollicitor General on the other side argued That the custom is not good because it is against the rule of Law That an authority given should survive the party that gave it and a custom cannot strengthen it for a custom ought to be reasonable and agreeing to the nature of the thing which it concerns otherwise it cannot be good for Ratio est formalis causa consuetudinis Dalisons Rep. 32. 1 Instit f. 59. And this cause cannot be reasonable because it cannot give an authority to another to do such a thing for him after his death which he could not do during his life And this custom doth purely destroy the nature of the Common Law and therefore cannot be good And it is against the very nature of an authority to survive and so consequently it is against the nature of the thing Dyer 357. 10 E. 3. f. 5. 18 Rep. Vnyers case The party in his life time might have revoked this authority and therefore his death doth revoke it and by the death of the Copyholder the Copyhold is descended and cannot be surrendred by a dead man and here was no incoation of the estate of the party that is dead and I hold there is a difference betwixt a will and an authority And also here the Letter of Attorney is not pursuant to the custom and therefore it is a void Letter of Attorney 16 Iac. rot 530. Greenwood and Onslaes case Customs are to be taken strictly Copyhold and to be so pursued and it is not so here for here is an addition to the custom and this makes all void Roll chief Iustice Copyholds are much led by the customs of the Manor and me thinks here is little difference betwixtt surrendring into the hands of another Copyholder to make a surrender for him and this case and the variances are not so considerable as to make it void here The Court would advise At another day the case was again put Custom and the Court delivered their opinion that the custom was good and Roll chief Iustice said that the death of the party doth not revoke this writing made in the nature of a Letter of Attorney Revocation for it is strengthned by the custom and it is not like an ordinary Letter of Attorney which becoms void by the death of him that made it Authority Executor for this custom is a Law and the authority here survives as an Executor may sell the Testators lands it he be impowered to do it by the will and therefore the Custom is good and let the Plaintif have judgement nisi c. Child Trin. 1654. Banc. sup AN Action upon the Statute of 5 Eliz. was brought for using a Trade not having served an Apprentiship in it That the Defendant might not plead to the Action Serjeant Fletcher moved that the Defendant might not be compelled to plead because he ought not to be sued out of the County where he useth the Trade Roll chief Iustice proceed according to Law and plead this matter or move it in arrest of Iudgement Rule for we will make no rule Trin. 1654. Banc. sup BY Roll chief Iustice Where an Action on the Case lies and where not an Action upon the case doth not lie against one for causing another to be endicted for a Trespass but for causing one to be endicted for a thing which deserves corporal punishment or a thing which sounds in scandal of the party endicted an Action upon the case will lie Nota. Stevens against Ask. Mich. 1654. Banc. sup STephens brought an Action upon the case against Ask for these words Action on the Case for words Arrest of judgement Adjective words Thou art a common Bastard-bearing Whore and hadst two Bastards by a Butcher and I will prove it Vpon not guilty pleaded and a verdict found for the Plaintif Twisden moved in Arrest of Iudgement that the first words viz. Thou art a common Bastard-bearing Whore are not actionable because they are adjective words and are not positive And for the other words they are not actionable because they were spoken of a Feme Covert who cannot have a Bastard Vpon this the judgement was arrested till the next Term and then Wild moved for judgement for that he conceived that the words taken together are actionable and cited Owen levons case adjudged in this Court to prove it Roll chief Iustice If she were married at the time of the words spoken she could not have a Bastard but yet why should not the words be actionable for the words purport that she was not maried when she had the Bastards and the Iury hath found for the Plaintif Therefore let her take her judgement nisi Barker and Weston Mich. 1654. Banc. sup THe Court was moved that the bail to an Action might be discharged To discharge Bail because they had now brought in the principal and it was but one day after the return of the writ But Roll chief Iustice answered that it may not be because they come in upon the return of the second Scire facias Harvey and Mountney Mich. 1654. anc sup IN this Case the Action being a Trespass and Ejectment and the title concerning Hugh Audley of the Inner Temple the Defendant was by rule of Court at the tryal which was to be at the bar to appear and confess the lease entry and ouster and to stand upon the title only Plaintif non-sute and yet judgement for him yet at the tryal he would not appear upon which the Plaintif was non-sute and yet the judgement was for the Plaintif upon
Operative words which makes it certain enough the word is used here absolutely shall be so taken in 3 Car. Iaques and Thorowgoods case in the Common pleas the word equally was taken operatively and not in common construction and in Lewin and Dods case in the Common pleas 36 and 37 Eliz. the word equally was held by two Iudges to make a joynt-tenancy and not a tenancy in common and in this Court also the Iudges were divided at the first but afterwards Popham changed his opinion and it was adjudged a tenancy in common and afterwards a writ of Error was brought in the Exchequer Chamber and there the judgement was affirmed Pasch 41 Eliz. B. r. rot 270. Also the subject matter here is apt to receive a tenancy in common here being intended a provision for children and their several posterities which a survivorship would destroy 37 H. 8. Bro. Devise 29. and the very intent of the Devisor appears in the will to be as I have argued Roll chief Iustice I hold here is a tenancy in common and that it shall goe throughout Words not to be construed to make them idle and is not to be divided and the intent of the devisor appears in the will that every one shall have his part and their heirs for here is a provision made for Children and the word respectively would be idle if another construction should be made Iudgement for the Plaintif and would signifie no more than what the law said without it Ask and Newdigate ad idem and Newdigate cited Dyer 316 Huntlyes case so judgement was given for the Plaintif nisi Shepheard and Gray Hill 1654. Banc sup Trin. 1654. r. 672. A Writ of Error was brought to reverse a judgement given in an Action upon the Case in the Court at Doncaster Error in Action upon the Case and the Error assigned was in the judgement which was entred thus and the said Shepheard to wit the Defendant shall be in mercy of W. Gray to wit the Plaintif Roll chief Iustice This is erronious for he ought not to be in mercy of the Plaintif but of the State Therefore let the judgement be reversed Reversed Lamplew and Hewson Hill 1654. Banc. sup AFter a verdict in an Action upon the Case brought for these words Arrest of judgement in an Action for words viz. I was never a Traytor to the State as you have been It was moved in Arrest of Iudgement by Turner for the incertainty of the Declaration for that it appears not thereby that the words were spoken of the Plaintif or to the Plaintif and because it is not said that the words were spoken falso et malitiose Shafto of Councel on the other side answered that it appears the words were spoken upon conference betwixt the parties and thereby doth appear a sufficient averment that the words were spoken of the Plaintif Roll chief Iustice The Declaration implies that the words were spoken falso et malitiose Implyed averment good Iudgement ther néeds not an express averment that they were so spoken as there ought to be in an Endictment and this Declaration is laid two years after the words were spoken Therefore take your Iudgement except better matter be shewn Hill 1654. Banc. sup A Forein plea To swear a forein plea. which is to out the Court of the Iurisdiction in the cause depending ought to be sworn to be true or else is not to be allowed by the Court. So ruled by the Court. Dod and Herbert Hill 1654. Banc. sup Trin. 1655. rot Q. DOd brought an Action of Debt against Gregory Herbert an Attorny of this Court upon an Obligation to stand to an Award Debt upon an Obligation to stand to an Award The Defendant pleads no Award made The Plaintif replies and sets forth the Award which was that the Defendant should pay unto the Plaintif 100 l. at two several daies of payment and assigns the breach in not paying the 100 l. accordingly To this replication the Defendant demurs and the exception taken was that it doth not appear in the Award that the Award is reciprocal but that is only made on one part It is true by the allegation in the pleading it doth appear but this helps it not for it ought to appear in the Award it self Award de super praemissis Breach not well assigned Roll chief Iustice the Award appears to be made de super praemissis and that may help it But the Plaintif hath not well assigned the breach for the breach is not assigned upon a good part of the Award for there is no cause set forth in the Award why the Defendant should pay the 100 l. Therefore nil capiat per billam nisi c. Henly and Baynton Trin. 1654. Banc. sup Trin. 1654. rot 1384. HEnly brought an Action upon the Case against Sir Edward Baynton Arrest of judgement in an Action up the Case for words for speaking of these words of him viz. You have cousened the State of 20000 l. and I will prove it for you have received five and twenty thousand pounds profits of the Office and not compounded for it and have foisted in words into the order for your composition After a verdict found for the Plaintif it was moved in arrest of Iudgement that the words as they are laid in the Declaration are not actionable for the Plaintif doth not entitle himself to the Office but only to eleven parts of the profits of the Office and so he cannot be scandalized by the words as an Officer Hob. 267 268. Sir Miles Fleetswoods case was cited and Hob. 76. Bray and Humes case and 4 Iac. Cars and Rans case and Hill 14 Iac. Snails case and 20 Iac. Curle and Tucks case 2ly Here is no averment that Whitwick during whose life he claims the office was alive when the words were spoken and if he were dead then he was no officer And the subsequent words do qualifie the former part of the words for the receiving of the mony is not an offence or cosening of the State 14 Iac. Godard and Gilberts case in the Common-pleas and for the word foisting it is an insensible word Insensible word and therefore cannot be actionable and the Plaintif doth not aver that he did not foist in words into this order No Action where no dammages but only sayes he did not foist in words into any order And though the words were actionable yet at the time when the Action was brought Henly was pardoned by the Act of Oblivion if he had done it and so could not be damnified by the Defendants speaking the words if they were true and so no Action lies for no dammages could be recovered Hob. 82.294 Chuddington and VVilkins case 1 E. 3.3.12 Eliz. Bartons case 20 Ass Pl. 7.6 Rep. 13.16 Iac. Serles case Shafto on the same side urged that it appears not by the Declaration that Henly was an
an Action of Debt upon an Obligation against Scot Debt upon an Obligation and a special verdict the Defendant pleaded non est factum Vpon this a special verdict was found wherein the question was whether it was his Deed or no because the Obligation was that he was bound in centem libris instead of centum libris Green for the Plaintif held it a good Bond notwithstanding this mistake False Orthography because centem doth sound like centum and he cited many Cases to prove that mis-writing of words in an Obligation shall not hurt it as Hob. 34. Trigintat for triginti and sessanti for sexcenti and Osborns case sewenteen for seventeen 9 H. 6. f. 7. and Pinder and Tugges case in this Court and 2 Car. Davis his Case and the Iury in our case have found that the Defendant did seal and deliver the bond as his Act and Déed Roll chief Iustice The condition of the bond doth set it forth to be 100 l. wherein the Defendant became bound therefore shew cause the next Term why the Plaintif should not have judgement Judgement Cooks and Chambers Hill 1654. Banc. sup COoks moved for a Prohibition to the Prerogative Court for proceeding against him there by way of attachment for not obeying the Decree of that Court For a Prohibition to the Prerogative Court The Case was this Cooks and Chambers being in sute in the Prerogative Court for Letters of administration of the Goods and Chattels of one that dyed intestate at last they agreed by consent that Cooks upon putting in bond to perform the decree of the Prerogative Court touching the distribution of the Intestates estate should have the administration granted unto him whereupon he did enter into bond and had the Letters of administration granted unto him and afterwards the Court made an order or decree that he should distribute the estate in such and such manner and for not-performing of this decree Chambers proceeds against him in the Prerogative Court by way of Attachment It was urged against the Prohibition that this Court is now absolute by the late Statute and that there is no appeal from it and that the decree made was made by consent of the parties and therefore it was no reason to grant a Prohibition to hinder that Court from forcing the party to perform the decree Sergeant Twisden answered that the consent of the parties cannot give a Iuridiction to that Court which they had not before Roll chief Iustice That is true but by consent peradventure it may be as it is here but they cannot compell them to consent and they have no authority given them by the late Statute but they have only their old authority and it would be dangerous to out the old and here is a decree made by consent of both parties Administration by consent but bring us Presidents where a Prohibition hath been granted after an administration granted by consent as this is At another day Latch moved again for the Prohibition and said that the attachment was granted beyond the Condition of the Bond given in Court and they have no power to award it notwithstanding the distribution of the estate be not made according to the bond for the Ordinance of Paliament gives them no such authority 2ly They cannot order such a distribution of the estate notwithstanding our consent for our consent was that the clear estate only should be distributed and not the whole estate and we have six presidents here to prove that they ought to proceed upon the Bond and not as they have done we could have brought a hundred to the same purpose if we had thought it needfull And their giving of us the administration upon the bond given doth abridge them from making any order to distribute the estate or to procéed by attachment and Slaynyes case Hob. f. 85. and Tucker and Loans case Hob. 191. were cited Wild on the other side agreed the books cited but said here is the consent of the parties that the administration should be as it is here and that agreement was before the administration granted Roll chief Iustice Will you consent to bring an Action upon the Bond and waive the prohibition Answer to this to morrow No Attachment At another day it was moved again and then Roll chief Iustice answered Proceed upon the Bond for they cannot grant an attachment for not performing the decree although it was made by consent Wild replyed This being a Decree made by consent they have submitted to it and the attachment is granted for disobedience to the Court who made the decree and the late Ordinance doth give them power to commit such as shall disobey the decrees and orders of the Court. Roll chief Iustice appear and plead to it and try their power that way I believe that if parties will consent that administration shall be granted in trust it may be so granted although it be not in the usual way Prohibition granted and as the Statute doth direct but the taking of the Obligation ties them up to that remedy and they cannot proceed by way of attachment Therefore take a prohibition as to the attachment and appear to it and try the matter Boyle and Scarborough Hill 1655. Banc. sup Hill 52. r. 296. SCarborough brought an Action upon the case in the Common pleas against Boyle Action upon the Case upon a promise and judgement upon a Demurrer and writ of Error to reverse it upon a promise that whereas his son William did owe unto Scarborough 500 l. and Scarborough did intend to sue a ne exeat regnum against him to hinder him from going out of England till he might recover his debt Boyle the Defendant did promise that if he would forbear to sue out an ne exeat regnum against his son William he would pay the debt Vpon this Action the Plaintif obtains a judgement upon a demurrer Whereupon Boyle brings a writ of Error to reverse this judgement The pleading in the Common pleas was thus the Defendant in the Action in the Common pleas was sued by the name of of Robert Boyle Esq who appears and pleads the Statute of limitations of Actions of 21 Iac. The Plaintif replies that he took out an Original against him within 6 years out of the Chancery by the name of Robert Boyle Esq and outlawed him upon that Original and that afterwards the Defendant Boyle came in and reversed the Outlawry the Defendant rejoyns and says protestando that he took not out such an original within 6 years for plea says that he was a Knight at the time of the Original sued forth the Plaintif sur-rejoyns that he came in and reversed the Outlawry upon that Original for want of proclamation by the name of Robert Boyle Esquire The Defendant by way of Rebutter says that he was a Knight at the time of the Outlawry reversed the Plaintif by way of sur-rebuttter says he reversed the outlawry by
the name of Robert Boyle Esq upon this the Defendant demurred and upon the demurrer judgement was given for the Plaintif and upon this the writ of Error was brought in this Court The Errors assigned were Consideration to ground a promise 1. That here was no good consideration for this promise for there is no ground of Action shewed against the son nor that he had been at any charge in the prosecuting any action against him and Rosyer and Landales case 1650. in this Court and Bedwell and Cottons case Hob. 216 was cited Ne exeat regnum and 2ly there is no such writ as an ne exeat regnum in the Register but only a writ to give security not to go out of the Realm to the publique prejudice of the King and his people and here is no such matter but only that he owed 500 l. and therefore he would sue out the writ and though the consideration should be good yet is not the Plaintifs replication good to tye the second writ to the first for he doth not say that the second is pro una et eadem causa and so it is incertain Brook Trespass 85.9 H. 6. and there may be several promises made here in one day and if the replication he good Rejoynder yet the rejoynder is good 19 H. 8.43 He only admits that he being a Knight is the same person which was sued by the name of an Esquire Hob. 171 Stukelyes case And here is a judgement by a nihil dicit and no warrant of Attorney for it is in latine Warrant of Attorney which being since the Act for Law proceedings to be in English is not good and so it was prayed the judgement might be reversed Latch on the other side prayed to affirm the judgement and he argued 1. That here was a good consideration to ground the promise upon for this writ of ne exeat regnum may be sued forth by any one here is a benefit to the party in the forbearing to sue it forth and here is good cause to move for this writ and it is in the discretion of the King to grant it or not but it concerns him in his honour to grant it Regist 193 194. Brit. 182. Cooks instit 130. There is caution to be taken of persons licensed to go beyond Seas that they pay their debts 2ly The replication is good Averment and it is not necessary to aver that the second Original was for the same cause first because it is in an action upon the case and is set forth at large which shews verbatim that it is for the same cause and is plain in it self and 2ly it is said that he sued out the second Original pro causa praedicta which is a sufficient averment if an averment be necessary and the variance in the damages argues not that there is another cause of Action for when the second Original was sued forth the damages were increased by increase of time it being a year after the suing forth of the first For the rejoynder it is to be considered 1. Whether the party be estopped thus to plead 2ly If he be not Estoppel yet whether the matter set forth be good For the 1. I hold he is estopped by coming in gratis as an Esquire to say that he was a Knight and he not being brought in custody Dyer 192. There he shall plead no other name but here he hath not alleged it as he ought for he ought to conclude absque hoc that he was an Esquire and he hath affirmed himself to be an Esquire by saying praedictus c. but he ought to have alleged specially that Robert Boyle Knight who was sued by the name of Robert Boyle Esquire and 2 E 4. f. â— is against the other books and the law is otherwise It is true that the old book of Entries Title Trespass and some other Presidents which passed sub silentio are against me but the Law generally is against those Presidents as Rastal entries brief 54.19 H. 6.1.36 44. which say if he come in he is estopped Br. Tit. Deâ—â— 15 26.32 H. 6.3 35 H. 6. and many other books and the book of 19 H. 6.43 which is objected on the other side is against them and Dyer f. 58. But though he were not estopped yet we may take advantage of the first Original writ for it is but abatable by the misnosmer and so not abated and here is a flaw in the rejoynder for he ought to have traversed that he was not an Esquire which he hath not done Abated Abatable Traverse 2ly The 26 of March is after the original sued forth and so it is uncertain in respect of time when he was a Knight Plow 27. by Morgan 7 H. 7.5 And the warrant of Attorney is good though it be in Latine and if it were in English it would be erronious for the entry is material and the constant practice is not to enter the warrant before the issue Entry Trin. 8 Iac. Morley and Morley in this Court and here is not the entry of the warrant it self but the Entry is that he is Attorney by Warrant Roll chief Iustice If one bring a writ of 1000 l. and it be abated and then he bring another writ for the same debt may he increase the damages accrued betwixt the first writ and the second Certainly no Increase of damages for the second writ is but the renewing of the first writ and is not a new writ But here are divers points considerable therefore speak again to it But a ne exeat regnum is usually sued forth in such cases as this Prerogative Writ although that originally this writ was only used in businesses which concerned the State and not in private cases and the forbearance to sue it is a good consideration to ground an Action upon At another day the Case was again put by Christ Turner and he prayed the judgement might be reversed and in his Argument he made these questions 1. Whether there be a good consideration to raise a promise Consideration and he held there in not because it doth not appear that the Plaintif had any cause of Action Nat. Brev. 85. A. a ne exeat regnum is at the sute of the King and not at the sute of a common person and whereas it is objected that the King may stay any one from going beyond Seas I answer that he cannot stay any one for every cause but for a cause which concerns the State and if there were in our case a good cause to sue out this writ Agreement the agréement betwixt the parties not to sue it out is not a good agréement Hob. 154. Dyer 29â— Every one may go out of the Kingdom at his pleasure 2ly Here is no averment that both the Originals were sued forth for one and the same cause although that they agrée literally Hob. Rep. Foster and Iacksons case
Record let it be tead upon the reading it he said that he relies not on the conclusion and so the Estople is relyed upon Sergeant Twisden In our Sur-rebutter we rely upon the Estople although we do it not in our rejoynder and so it is good Sergeant Glyn But you do not conclude upon the Record to wit whether you shall be received against the Record as you ought to do 22 H. 6. f. 26. Roll chief Iustice It is in effect said so though it be not in expresse words Finch Henage on the other side argued in affirmance of the judgement and said the question is whether his comming in by the name of Esquire to reverse the Outlawry shall not be an Estople to him to say afterwards that he was a Knight and I conceive it is Estople because he that comes in gratis to reverse an Outlawry shall not plead Misnosmer Misnosmer 6 E. 4. f. 9. he who comes in gratis is not prejudiced if he be not allowed this plea but it is otherwise if he come in upon process to reverse it 2ly It is lesse mischievous to deny the plea of Misnosmer than to allow it where it is not allowable the pleading of the Misnosmer if it be not true may invegle the Court 10 E. 4.12 12 E. 4. f. 6.19 H. 6. f. 8. There are 4 kinds of Misnosmer 4 Misnosmer to wit misnosmer of the Christian name 2ly Of the Sirname 3ly Of addition of Profession 4ly Of addition of place and in none of them shall misnosmer be pleaded where the party comes in gratis Br. Misnosmer 48. 3 E. 4.5 27 H. 8. f. 1.15 H. 6. Statham pl. Error Dyer 192.21 E. 4. f. 8. Fitzh tit Misnosmer 8.39 H. 6.1 E. 4. and as the case here is he is estopped to plead misnosmer by reversing of the Outlawry which is a matter of Record Estople and by it he hath confirmed his name to be so 19 H. 6. f. 1.7 Ed. 4. f. 1. Although he might plead Misnosmer if he came in by a Cepi yet there he may also plead another way specially if he will and it will be good also 19 H. 6. f. 1. Nor hath he here relyed upon his Plea of Misnosmer but upon the want of Proclamation and he reversed the Outlawry by the name of Esquire and yet now he will say that he was a Knight which is unreasonable 34 H. 6. Fitzh Protest 7. and this is an allegation contra factum suum proprium Here is a second original Original and that is a good Original within the Statute and it appears that this second Original is against the same party and so he acknowledgeth by the Record by which the Court may be ascertained that he was the same person and his Addition mis-named shall do no hurt And the second Original is good as the Court hath agreed upon opening of the Case Roll chief Iustice he reverseth the Outlawry as an Esquire and afterwards sayes he is a Knight He may come in without Proces to reverse the Outlawry Outlawry where his person or estate is endangered by it 39 E. 3. in Debt 38 E. 3. but he cannot plead Misnosmer yet he may protest that he is a Knight and save himself in another sute which may be brought against him If he have pleaded right you agree that he is not estopped here and it appears that he is the same person and comes in gratis by this name Original yet it is no estople And the second Original is good for it appears that he is the same person and that by the Statute notwithstanding the variance and he may come in gratis without proces and take advantage of the error But argue again to the point whether he may bring a second Original by the Statute At another day it was argued again but I could not hear but 33 H. 6. f. 19. 50. was cited that there ought to be a mutual Estople Mutual Estople viz. on the part of the Plaintif and of the part of the Defendant Roll chief Iustice It appears to be one and the same party and we must maintain Actions against the Statute of Limitations because by that Statute the benefit of the Law is taken away in part Iudgement affirmed Therefore let the Iudgement be affirmed Hill 1654 Banc. sup MEmorandum the two Sherifs of London appeared in Court To shew cause why execution not done Retorn of the Sheriff in their proper persons upon a rule of Court to shew cause why they did not grant out execution upon a judgement given in their Court or else to make a sufficient retorn of a Certiorari directed to them because they had made three insufficient retorns Upon this their retorn now made was read the effect whereof was that there is no such judgement as the Writ mentioneth to make out execution upon View of the Record Roll chief Iustice This is a good retorn as it now is and if the tetorn be false you may take your remedy against them for making a false retorn Upon this the Councel prayed that the party might have a Copy of the Iudgement out of the Sherifs Office Roll chief Iustice You may have a sight of the Record and if they will not suffer you to have it you may have your remedy against them The rule was that the party should have a Copy of the Record Pasch 1655. Banc. sup VPon a motion for a new Tryal grounded upon an Affidavit For a new Tryal Tryal of an Issue Order of Chancery Venire de novo Roll chief Iustice said That if there be a Tryal and a verdict given upon it The same issue cannot be tryed again by the same Iury although the Chancery do order such a Tryal but if there be a mistryal the party must move the Court where the Action was commenced for a Venire de novo to summon a new Iury. Nota. The Protector and Bruster Pasc 1655. Banc. sup CArew upon a rule to shew cause why an attachment should not issue forth against Commissioners of Sewers in Suffolk for setting a Fine upon one for not obeying their orders Cause why no Attachment after a Certiorari was delivered unto them to remove the orders made against the party in contempt of this Court shewed for cause that the Fine set was for disobeying a new Order of theirs made against the party after the Certiorari was retorned Certiorari and not for disobeying the Orders removed by the Certiorari and so it was no contempt to this Court. Roll chief Iustice The Certiorari doth not remove the Commission of Sewers and therefore they may proceed upon the Commission notwithstanding the Certiorari Therefore let no Attachment issue against them Pasch 1655. Banc. sup THe Court was moved to quash a retorn of rescous Return of a Writ of restitution the rescouser being in Court Vpon this exception viz. that the Endictment sets forth
insufficient neither doth his contracting with him for money to execute the place for him any ways concern the corporation nor is it malum in se but is only punishable by the Statute of 5 Ed. 6. and as to the not trying of the issues joyned in that Court at the days they were to he tried upon this is no cause to deprive him of his place which is a freehold Freehold for few Stewards of Corporations do otherwise than he hath done for they usually stay till they have a competent number of causes to try before they will sit to try them and there appears to be but 5 causes untryed which is no great number neither doth it appear that be had any notice that these five were ready for tryal Notice and so here cannot be so great an offence as is supposed and he cited Semaigns case Rep. â—3 nor doth it appear that any tryal was disappointed by his absence for it appears not that any issue was ioyned in any of the causes or any warning given for tryal during the time that is surmised for him to neglect to fit in Court And besides though these were sufficient crimes for to deprive him of his place yet they have not proceeded against him in a legal way Illegal proceeding Defence for he was never called to answer the crimes objected against him but is deprived without hearing his defence which is illegal as Sir Iames Baggs case is Roll chief Iustice he ought to be heard what he could say for himself else how could it be known whether there were just cause to remove him or no and it is very hard to deprive one of his freehold without hearing him At another day Serjeant Twisden moved the Court for their opinion whether Bernardiston ought to be restored or no and answered the exceptions formerly taken much to the effect as Latch had done Whereupon Roll chief Iustice said you ought to have convented him before you put him out to hear what excuse he could make for his absence otherwise how could you know whether he had just cause or not for his absence Restored nisi c. Therefore let him be restored except cause be shewed to the contrary Saturday next Postea Edwards and Stiff Pasch 1655. Banc sup MEmorandum Tryal in Trespass and Ejectment Jury suffered to drink at the Bar. Vpon a tryal at the Bar in a Trespass and Ejectment between Edwards Plaintif and Stiff Defendant the evidence being long and the Weathet hot the Jury desired they might have drink which the Court granted but said they should have it at the Bar whereupon drink was sent for for them and they drunk it there before they went out to consider of the evidence Roll chief Iustice did then reprove the Attorneys and Sollicitors for the great charges they used to put their Clyents to in feasting the Jury Feasting of Iuries and ordered that thenceforth no more thon 3 s. 4 d. should be allowed to any Iuryman to pay for his dinner Nota. Pasch 1655. Banc. sup VPon an Affidavit read in Court For a new tryal Death of a Witness that a material witnesse in the cause that was served with a subpoena to give his testimony at the tryal and dyed before the tryal The Court was moved on the Defendants part for a new tryal but the Plaintif opposed it much insisting upon this that there was no miscarriage on his part Whereupon Roll chief Iustice answered here is the Act of God in the Case Act of God which cannot be resisted and this tryal is final to the Defendant Therefore if the Plaintif will not consent to take his costs New tryal paying costs and goe to a new tryal we will not be hasty to give judgement but will advise upon it The Protector and Gunter Pasch 1655. Banc. sup THe Court was moved to quash two Endictments for continuing of purprestines in the high way To quash two Endictments and it was urged by the Councel that there were 4 Endictments preferred against his Clyent two for erecting the purprestures and the other two for the continuing of them and upon a tryal we were found not guilty of the erecting them and therefore we cannot be guilty of the continuing of them and he took this exception to the caption of the Endictments viz. That it is said that the Endictments were preferred at the Sessions held at East Grinsteed in the County of Sussex where it ought to have been at the Sessions of the Peace held at East-Grinsteed for the County of Sussex Roll chief Iustice answered You may be guilty for continuing of that which another did erect and not you but if the erecting and continuance be mentioned in one and the same Endictment you cannot be guilty Denied But plead to them for no such thing appears in the Record but only that you kept the Highway stopped but says not who stopped it Pasch 1655. Banc. sup THe Court was moved to quash an Endictment grounded upon the Statute of 5 Eliz. preferred against one for using the Trade of a Draper To quash an Endictment not having served as an Apprentise in that Trade according to the Statute upon these 2 Exceptions 1. It is said he used the Trade in the year 1653. and doth not say the year of our Lord. 2ly It is not said that the Iury was returned nor whence they were and both exceptions were held good by Roll chief Iustice and the Endictment was thereupon quashed Quashed Pasch 1655. Banc. sup THe Court was moved to quash an Endictment against one Peers To quash an Endictment upon the Ordinance against Duels for speaking provoking language to one contrary to the late Ordinance of the Lord Protector and his Councel upon these Exceptions 1. It is said the Endictment was at the Sessions held at A. and doth not say in what County 2ly It is said by an Ordinance of the Protector made such a day and doth not say in that case provided Quashed And upon these Exceptions it was quashed Pasch 1655. Banc. sup THe Court was moved for a tales to a Northumberland Iury returnable this Term because but 8 of the panel returned did appear For a tales But Roll chief Iustice answered Take it returnable in Michaelmas Term next Return of a tales but this Term you cannot have it VValdron and VVard Pasch 1654. Banc sup IN a tryal at the bar between Waldron Plaintif and Ward Defendant Tryal at Bar. A Counceller at the Bar examined as a witnesse One Mr. Conye a Counceller at the Bar was examined upon his Oath to prove the death of Sir Thomas Conye Whereupon Serjeant Maynard urged to have him examined on the other part as a witness in some matters whereof he had béen made privy as of Counsel in the cause But Roll chief Iustice answered He is not bound to make answer for things which may disclose the
secrets of his Clyents cause Not to disclose a Clyents cause and thereupon he was forborn to be examined Pilkinton and Bagshaw Pasch 1655. Banc. sup VPon a tryal to be had at the Bar between Pilkington and Bagshaw Tryal at the Bar. the Plaintif would not put in his writ that the tryal might goe on Whereupon Roll chief Iustice bid the Cryer to call the Attorney of the Plaintif to appear and to bring in the writ upon pain of 20 l. and said Pain of 20 l. Attorney put out of the Roll. Non-sute upon the Record that if he brought it not in he should be put out of the Roll. Serjeant Maynard moved that if he brought not in the writ that the Plaintif might be called non-sute upon the Record which Roll chief Iustice answered might well be because the parties have day in Court by the Record or Roll afterwards the Sollicitor who had the writ brought it in yet Roll chief Iustice said There shall notwithstanding the writ be brought in be 20 l. fine set upon him for his trifling with the Court. The Protector and Sumner Pasch 165â— Banc. sup SErjeant Bernard moved that Sumner that appeared in Court upon his habeas corpus directed to the Kéeper of Northampton Gaol might be bailed To bail a prisoner denied for that having killed two men upon the Highway the Iury had found it Man-slaughter se defendendo Roll chief Iustice answered The Iuries conclusion is contrary to their premises Therefore let the prisoner be sent to Northampton Gaol whence he came yet that may not be for the fact was done in Peterborough Tryal Writ ad reâ—piendum and therefore he cannot be tryed at Northampton therefore let him be sent to Peterborough Gaol with a writ ad recipiendum to the Gaoler there to take charge of him Pilkington versus Bagshaw Pasch 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Pilkington and Bagshaw Trespass and Ejectment the question being whether Copyhold lands may be entailed by the custom of the Manor It was said that if Tenant in tail and the issue in tail of Copyhold lands in tail joyn in a surrender in a Court Baron of the Copyhold lands Estopel Copyhold lands in tail Customary entail Fine State enjoyed Seisure of Cepyhold lands that this is not an estopel for it ought to be by fine or deed indented And Roll chief Iustice said that Copyhold lands in tail are not within the Statute of Westm 2. but it is a Customary entail like in its nature to another entail and such an estate must be docked by fine or by some other customary way It was also said by him that if Copies of Court Rolls be shewed to prove a Customary estate the enjoynment of such estates must also be proved otherwise the proof is not good It was also said upon the evidence That a seisure by the Lord made of Copyhold entailed lands within the Manor of Wakefield in Yorkshire is in the nature of a recovery to deck the entail and that the manner of doing it is either for the Copyholder to let his Copyhold for more years than he ought or to refuse to do his service and then the Lord seifes the lands for a forfeiture and grants it to another by the consent of the Copyholder that made the forfeiture It was then also said by Roll chief Iustice Custom that a Custom cannot be urged for a thing that had its beginning since Rich. the 1. if a Record can be shewed to the contrary Common recovery Recompense in value Custom Copyhold destroyed It was also said by him that a common recovery suproseth a recompence in value to all persons who lost the estate by the recovery He said also that he conceived that there could be no such Custom to cut off entails of Copyhold lands by the forfeiture and seisure of the Lord for his seisure upon the forfeiture destroys the Copy-hold estate by the Common Law for it is in the Lords election after the seisure whether he will grant the estate again or no and you do not prove that the Custom binds him to it Nota. Harris and Pasch 1655. Banc. sup THe Court was moved in the Case of one Harris To amend an old judgement Denied that the entry of a judgement twelve years past might be amended upon the Roll. But Roll chief Iustice answered It cannot be after so long time past Pasch 1655. Banc. sup VPon a writ of Error brought to reverse a fine levied by an Infant being a Feme Covert Day to inspect an Infant The Court was moved for a day to bring in the party that levied the fine to be inspected by the Court which was granted and at the day she was brought into the Court and viewed and two witnesses deposed that she was within age at the time of the fine levied Entry upon the Roll. which was entred upon the Roll upon which the Issue was tryed Pasch 1655 Banc. sup IT was said by Roll chief Iustice Election That if there be two Kinsmen in equal degree of kindred to the Intestate it is in the election of the Ordinary to which of them he will grant Letters of Administration Pasch 1655. Banc. sup AN Outlawry was reversed Outlawry reversed because the place where the County Court was held is not shewed in the secundo exactus Pasch 1655. Banc. sup IT was moved that there was a judgement given in the Common Pleas To affirm a judgement a writ of Error depending and thereupon the Defendant brought his writ of Error to reverse the judgement in this Court and since pending the writ of Error the partses were agréed and therefore they desired the judgement might be affirmed because that otherwise satisfaction of the judgement cannot be acknowledged upon the Roll because the Court of Common Pleas were forclosed to do any thing further upon the judgement given there by reason of the writ of Error But Roll chief Iustice answered It cannot be Denied for you shew no cause why we should affirm the judgement and therefore we will make no rule in it but enter satisfaction upon the Roll if you will at your own peril Pasch 1655. Banc. sup IT was said by Roll chief Iustice that an Action upon the case will lie against one that brings vexatious actions against another Action upon the Case for vexation or for entring of Actions of a great value to force his adversary to put in great bail where he hath but small cause of Action Nota. Trevanian and Penhollow Trin. 1655. TRevanian brought an Action upon the case against Penhollow for speaking of these words of him Plea to an Action on the Case Thou hast taken a false Oath at the Assizes and art false forsworn The Defendant pleads that the Plaintif had agréed to accept of 3 Iuggs of Beer from him in satisfaction The Plaintif
demurred to the plea Demurrer and for cause shews that it doth not appear that the three Iuggs of Beer were paid or tendred by the Defendant Iudgement and upon this exception judgement was given for the Plaintif c. MEmorandum Trinity Term 1655. beginning the 15 of Iune being Friday Iustice Ask late alone in the Court of the Vpper Bench being then the sole Iudge there The late Lord chief Iustice Roll having surrendred his Patent the Tuesday sevenight before being the 5 of Iune as I was enformed MEmorandum Afterwards the same day Iohn Glyn his Highness the Lord Protectors Serjeant at Law took his place of Lord chief Iustice of England in this Court and the Lord Lisle one of the Lords Commissioners of the great Seal of England made a Speech unto him according to the Custom and Serjeant Twisden moved for a tryal at the Bar the next Michaelmas Term which was granted nisi c. The Protector and the Town of Colchester Pasch and Trin. 1655. Banc. sup VPon a Mandamus to the Bailifs of Colchester to restore Bernardiston to the Recorders place of that Town Exceptions to a return of a Mandamus to the Town of Colchester upon the return they certified the causes for removing him and why he ought not to be restored 1. That one Good all being endicted upon the Statute for having two wives and convicted thereof did pray his Clergy and was refused it by Bernardiston and was condemned to die and after at another Sessions he admitted him to his Clergy and so he was burnt in the hand 2ly That he neglected to sit at the Sessions whereby the Sessions for the Town could not be held duly as they ought to have been 3ly That he appointed a Deputy Recorder to execute his place for him who was not an utter Barrester and contracted with him for 40 l. per annum 4ly That he neglected to hold Courts whereby causes could not be tried to the prejudice of many Latch of Councel with Bernardiston to the first cause answered That although it was an Error in Iudgement to deny the Clergy where it should have been granted yet this was not committed as he was Recorder of the Town but as a Commissioner of Oyer and Terminer which was to endure but for a year and was a distinct power from his power as he was Recorder and executed by him with other Commissioners that were joyned with him in Commission To the second he answered that here doth not appear to be any prejudice to any by his not holding the Sessions nor that there was any cause to hold them and besides it doth appear that the Sessions where he neglected to sit were not legally appointed to be held for they were appointed by them that had no authority to do it viz. by the Maior and Baylifs whereas they ought to be appointed by the Maior Baylifs and Recorder and next the Iustices are mis-named for they are called the Iustices of the Borough whereas they ought to be called the Iustices of the King 4ly Here doth not appear any appointment at all of the Quarter Sessions To the 3d. he answered that it is not necessary that he should appoint a Barrester to be Deputy-Recorder and to say that he was not fit to be Deputy-Recorder is too general a charge but it ought to be shewed in what he was unfit and his contracting with him for mony concerns not the Coporation neither is it malum in se but is only punishable by the Statute of 5 Ed. 6. And as to the last viz. his neglecting to try the issues joyned at the daies appointed it is not a crime material to deprive him of his free hold and few Stewards do otherwaies for they do usually stay till they have a competent number of Causes to try before they will sit and here are but six causes alleged to be untryed and one of them was not tryable in that place nor is it averred that he had notice given him of any issues to be tryed and so the offence is the less 5 Rep. Semaignes case nor doth it appear that any tryal was disappointed by his absence for it appears not that there was any issues joyned or any warning given for tryal in any of the Causes during the time alleged wherein it is said he did for bear to sit to try them Lastly here is no just way of proceeding to deprive him of his place though he might be deprived for he was never summoned to appear to answer the matters objected against him as he ought to have been and so is Cook in Sir James Baggs case Sergeant Glyn on the same side insisted only upon the last matter urged by Latch which he said went through the whole Case Roll chief Justice He ought to have been heard how else can it be known whether they had just cause to remove him or not and it is very hard to deprive one of his free-hold without hearing him make his defence The Court was moved at another day for their opinion and then Sergeant Twisden endeavoured to answer some exceptions taken to the retorn by Windham and to make good the exceptions taken against Bernardiston much to the same effect as formerly Whereupon Roll chief Justice answered you ought to have convented him before you had put him out that you might have heard what excuse he could make for his absence else how can it be known whether he had a just cause of absence or not Therefore let him be restored nisi Iudgement nisi c. At another day being in Trinity Term 1655. Sergeant Maynard shewed for cause why he ought not to be restored 1. That he held not the Courts duly but did absent himself for sixteen months without any cause to the endangering of the forfeiture of the Charter of the Town and sâ—â—d that if an Officer of Record do wilfully and without cause absent himself from his Office it is a for feiture thereof for by so doing the Charter is forfeited Forfeiture of an Office and here is no supposition of any excuse 2ly The retorn is good though no notice was given him for he ought to take notice of himself as he is an Officer of that Court and endict him they cannot and if his offence be true de facto they may put him out of his place as a Master may put away his Servant and this their Charter warrants them to do Twisden on the same side said he hath contracted with another for his place and so is disabled by the Statute Wild He could not be here convented for it is expresly said that he went to unknown places Glyn chief Iustice The main business insisted on was his absence but here was no notice given to him and you ought not to proceed against him and never hear him though the crime objected against him be true for it may be he was sick or had some other just excuse for his absence and
the Record It was said that a challenge to the array is no part of the Record but ought to be determined whether it be good or not by the Iudge before whom the tryal of the Cause should have been By whom to be determined Demurrer to a challenge if the challenge had not been taken and so hath it been ruled upon serious advise in the Common-pleas and it was then likewise said if there be a demurrer to a challenge at the Assises the Iudge of Assise may determine it there or over-rule it or adjourn it to be heard at another time Somes and Sir John Lenthall Mich. 1655. Banc. sup THe Court was enformed that an Action of Debt was formerly brought against Sir Iohn Lenthall and that there was Iudgement For Sir Iohn Lenthall the Mareschall to appear that he might be in execution and an execution thereupon taken out against him but that he abâ—conded himself that be could not be taken and therefore it was prayed in regard he was an Officer of this Court that the Court would order him to appear here that he may be committed in execution to the Sherif of Middlesex But Glyn chief Iustice answered if Sir Iohn Lenthall do appear here and you pray him in execution we can commit him to no other prison but the Marshalsea for that is the prison of this Court and to commit him to that prison of which he is the Kéeper without securing the Prisoners there before we do it will be an escape in Law of all the Prisoners Therefore let Sir Iohn shew cause why he should not pay the Debt for it is neither for his own credit nor the honor of this Court that he should not satisfie his Debts Fardres and Prowd Mich. 1655. Banc. sup HArdres brought an Action upon the Case against Prowd Arrest of judgement in an action upon the Case upon a promise and declared that whereas he at the instance and request of the Defendant had taken pains to reconcile differences betwixt the Defendant and I. S. and others the Defendant did assume and promise unto the Plaintif to pay unto him 100 l. at a certain day and for not paying the mony accordingly he brings his Action And upon non-assumpsit pleaded and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement 1. That here is no consideration set forth in the Declaration to ground the promise upon for it is only said that in consideration that the Plaintif had taken pains c. Consideration executed he did promise c. and this is a consideration executed and not sufficient to ground a promise upon and one Hunt and Dier case was cited for proof 2ly He doth not shew what pains he hath taken and so it cannot be known whether his pains were sufficient to ground the promise upon 3ly He sayes that he took pains to reconcile differences betwixt the Defendant and I. S. and others and doth not shew who these others were The two last exceptions were over-ruled without speaking to and to the first VVild answered that here was a continuing consideration Continuing consideration though the pains taken were past for it is said he took the pains at the instance and request of the Plaintif Glyn chief Iustice It is as you say Voluntary curtesie for here is more than a voluntary Curtesie upon which no consideration for a promise can be grounded for the pains here were undertaken at the instance of the Plaintif Iudicium nisi c. Mich. 1655. Banc. sup BY Glyn chief Iustice Where one may appear by Attorney where not If one come in upon the Eâ—igent he may appear by his Attorny but if he come in upon the Outlawry he must appear in his proper person and not by his Attorny and so is the constant practice of the Common-pleas and of this Court also Nota. London and VVilcocks Mich. 1655. Banc sup LOndon brought an Action of Trespass against VVilcocks inter alia Arrest of judgement in Trespass for taking and carrying away 40 loads of Corn in the Straw Vpon a verdict found for the Plaintif it was moved in arrest of Iudgement that the Declaration was uncertain for the Plaintif had declared for 40 loads of Corn in the Straw and it doth not appear whether they be Horse-loads or Cart-loads or what other loads of Corn they are But Glyn chief Iustice answered that it is well enough expressed for it being of Corn in the Straw it shall be intended Cart-loads and therefore let the Plaintif have his Iudgement Judgement Q. If the Action had been laid in the County of Cornwell where it is usual to carry Corn in the Straw upon Horses whether the Declaration would have been good VVood and Gunston Mich. 1655. Banc. sup WOod brought an Action upon the Case against Gunston for speaking of scandalous words against For a new tryal in an action of Trespass for 〈◊〉 words and amongst other words for calling him Traytor and obteyns a verdict against him at the Bar wherein the Iury gave 1500 l. dammages Vpon the supposition that the dammages were excessive and that the Iury did favour the Plaintif the Defendant moved for a new tryal But Sergeant Maynard opposed it and said that after a verdict the partiality of the Iury ought not to be questioned nor is there any Presidents for it in our Books of the Law and it would be of dangerous consequence if it should be suffered and the greatness of the dammages given can be no cause for a new tryal but if it were the dammages are not here excessive if the words spoken be well considered for they tend to take away the Plaintifs estate and his life VVindham on the other side pressed for a new tryal and said it was a packed business else there could not have been so great dammages and the Court hath power in extraordinary cases such as this is to grant a new tryal Glyn chief Justice Discretion of the Court. Discretion Judicial Arbitrary The Court not to be intended partial It is in the discretion of the Court in some cases to grant a new tryal but this must be a judicial and not an arbitrary discretion and it is frequent in our Books for the Court to take notice of miscariages of Iuries and to grant new tryals upon them and it is for the peoples benefit that it should be so for a Iury may sometimes by indirect dealings be moved to side with one party and not to be indifferent betwixt them but it cannot be so intended of the Court wherefore let there be a new tryal the next Term and the Defendant shall pay full Costs and judgement to be upon this Verdict to stand for security to pay what shall be recovered upon the next verdict Granted The Protector and Buckner Mich. 1655. Banc. sup BUckner was endicted upon the Statute of 1. Iac. Special verdict upon an endictment upon the
make a ditch or raise up a bank to hinder my way to my Common I may justifie the throwing of it down and the filling of it up Mich. 1655. BY Glyn chief Iustice Damages in Dower If a Feme bring a writ of dower and recover and the Defendant die the feme shall have her damages against the Terr-Tenants Mich. 1655. A Writ of Error quod coram vobis residet is when a writ of Error is brought to reverse a judgement given in the Common pleas Error quod coram vobis residet what it is or other Court where the Record was formerly removed into the Court of the Vpper Bench and by reason of the death of the party or for some other cause rests undetermined by reason of the abatement of the former writ of Error Le pool and Tryan Mich. 1655. Banc. sup VVIld moved for a prohibition to the Court of Admiralty to stay a tryal there in a Trover and Conversion For a prohibition to the admiralty in which they procéed upon a pretence that the goods in question were taken upon the High Sea and that by the late Act they have exclusive power in all such cases which is not so Glyn chief Justice It was resolved in Cremers and Cokelyes case so adjudged that they have no such power Therefore take a prohibition nisi c. Morden and Hart. Mich. 1655. Banc. sup MOrden brought an Action of debt upon an Obligation to stand to an Award against Hart. Vpon nil debet pleaded Arrest of judgement in debt upon an Obligation to stand to an Award and a verdict for the Plaintif it was moved in Arrest of judgement and the exception taken was that the Award was made but of one part and so not binding to all the parties submitting The case was this One Stephens and Body on one part also Hart on the other part submitted to stand to the Award The Arbitrators awarded that Body should pay a certain sum of money unto Hart in satisfaction for the differences betwixt Body and Stephens on the one part and Hart on the other part which was objected could not be good for the money paid by one could not be in satisfaction for another and so the Award is not made to conclude all the parties submitting for Stephens was not concerned in it and the Award is with an Ita quod which ought to be a general Award and include all parties and therefore if it be void in part it is void in all But Green on the other side answered though the Award should be naught in part yet it may be good as to Body that paid the money and the moneys ought to be received as they are paid and that is for Body and Stephens and may be well in satisfaction for both of them It was also urged by Howell on the same side that it appears that Body and Stephens are partners and this will make an end of the matter for then the money paid by one of them may satisfie for the other Award in part Glyn chief Iustice Here is a good Award betwéen two of the parties that submitted but there appears nothing to be awarded as to Stephens the third party for it doth not appear that he can take any benefit by the Award of the money to be paid by Body or that it can be any satisfaction for him but only for Body Iudgement for the Defendant Iudgement for the Defendant nisi c. Busfield and Norden Mich. 1655. Banc. sup A Writ of Error was brought by Busfield against Nordon to reverse a judgement given in the Court Military of Rippon in an action upon an indebitatus assumpsit for wares sold Error to reverse a judgement upon an indebitatus assumpsit by the Bail wherein there being a judgement given against the principal a scire facias issued out against the Ball and a judgement was thereupon and against him the bail thereupon brings a writ of Error to reverse both these judgements and assigns for Error that there was no issue joyned in the first judgement and that being erronious Bail cannot reverse the principal judgement The writ abaed and being the ground upon which the scire facias did issue forth whereupon the second judgement was given the second judgement cannot be good Glyn chief Iustice But the principal judgement ought to be reversed by the principal and not by the bail and therefore the writ of Error is not well brought by the bail therefore let it abate Vidian and Fletcher Mich. 1655. Banc. sup VPon view of an Infant brought into Court of to be inspected Scire facias for an Infant to â—everse a fine levâ—ed ouâ—ing Covertuâ—e who had during coverture joyned with her husband in levying a fine of her lands she was by the Court adjudged within age whereupon a scire facias issued out to the Terr-tenants who came in and pleaded that she was of full age at the time of the fine levied upon which plea issue was joyned and a tryal was had at the Assizes and a Verdict for the Plaintif who now came in Court and prayed for judgement upon the Verdict Glyn chief Iustice The Court is to judge of the Infancy Iury not to try Infancy and not the Iury and therefore you have not proceeded duly but the proceedings do no hurt for we judge she was within age Fine reversed Therefore let the fine be reversed nisi c. Nota. and the hundred of Crondon Mich. 1655. Banc. sup AN Action of Trespass upon the case was brought against the Hundred of Crondon in Hampshire upon the Stat. of Winchester Arrest of Judgement in an Action upon the Statute of Huc and Câ—yes Case Statute by one that was robbed within the hundred upon the tryal a verdict passed for the Plaintif It was moved on the behalf of the Hundred in Arrest of judgement 1. That the Plaintif had mistaken his Action for whereas he hath brought a general Action of Trespass upon the case he ought to have brought an Action upon the Statute 2ly He declares that he took his Oath before I. S. a Iustice of Peace in the County Whereas it should be for the County 3ly He hath not expressed that he took his Oath before a Iustice assigned to keep the Peace 4ly There is no issue joyned 5ly He saith that he took his Oath 20 days but doth not say next before as the Statute directs Windham on the other side answered to the first Exception that it is usual of latter times to declare in an Action upon the Case generally To the second he said it is no exception for a Iustice of Peace is not an Officer affâ—red to a place Serjeant Twisden But it doth not appear that you took your Oath 20 days before your Original sued out Glyn chief Iustice That appears well enough upon the Record Variation But the writ here is in an Action upon the case
generally yet he declares in an Action upon the case upon the Statute which is not all one and so the Declaration varies from the writ for an Action upon the Case upon the Statute is an extraordinary Action upon the case Recital judgement but I believe it is well enough notwithanding it being after a Verdict and not being a material variance but a bare recital Therefore let the Plantif take his judgement Conye and Lawes Mich. 1655. Banc. sup Hill 1655. rot 251. LAwes brought an Action upon the case against Conye upon an indebitatus assumpsit upon an accompt Error to reverse a judgement in an Action upon a promise the Defendant pleaded non assumpsit and upon issue joyned a special verdict was found for the Plaintif and a judgement given for him upon the special verdict the case appeared to be this the Plaintif Laws maried a Feme unto whom monies were owing dum sola fuit and the Baron and the Debtor come to an accompt for the mony the Debtor being found in arrere promiseth the Baron to pay him the mony due upon the accompt at a certain day for not performing this promise the Plaintif brought his Action Vpon the writ of error brought it was urged that the Plaintif did not shew how the monies became due to the wife and that the accompt did not alter the Case and Hernden and Palmers case Hob. 88. was cited to be like this case and Done and Thorns case 24. Car. in this Court was also cited and 20 H. 6. f. 20. b. Wild on the other side said that the Declaration is true and the verdict contradicts it not for by the mariage the debt is due to the Husband and therefore he ought to bring the Action and the case differs from Hobarts case Glyn chief Iustice Hobarts case is not like this it is true the accompt alters not the nature of the Action but here the verdict finds that there was a special promise made to pay the monies to the Husband Special promise and there may be an actual promise in an insimul computaverunt although the law doth create a promise where a special promise is not shewed and here is a distinct day for payment of the mony alleged and the consideration is good Consideration Release for it is a debt due to the Husband and he may release it and the doubt made by the Iury is whether the Action be well brought by the Husband alone or not At another day Green urged that here doth not appear a consideration for the special promise Promise in law and then it can be taken but for a promise in Law and upon such a promise the Action cannot lye for the debt is due to the wife notwithstanding the mariage Wild answered the accompt is good to the Baron to ground the promise upon and he cited Partridges Case and the promise here to pay the mony at a day is a special promise and not created by the Law and this makes the consideration good and the Declaration is true for it is the Husbands debt and the verdict confirme it and if the wife dy the administration belongs to the Husband which proves it is his debt and the writ of error is not good and so the Record is not removed the writ of error is directed to the Maior and Sherifs of Lincoln and the Court is said to be held before the Sherifs only Glyn chief Iustice Debt changed The nature of the debt is not changed by the accompt no more than the accompting with an Executor but a special promise may alter the debt Here is a promise made to the Husband and he hath brought the Action as if the Defendant were indebted to him yet he is not indebted to him generally but sub modo viz. jure uxoris There is another point in the Case I conceive here is cause of Action but whether it be applicable to make it a special debt is the question Writ of Error quashed But the writ of error is naught therefore let it be quashed Arnold and Floyd Mich. 1655. Banc. sup ARnold a Bruer brought an Action of Debt upon a Bond to perform Articles against Floyd his Clark Arrest of judgement in debt upon an Obligation to perform articles The effect of one of the Articles was that the Defendant should deliver weekly such Ale and Beer as should be delivered unto him to such Customers as he had in his charge to receive the monies of such Customers as were due for the same and the excise and should accompt every Saturday wéekly unto the Plaintif for such monies as he should receive for the same for breach of Covenant the Plaintif assigns that the Defendant did not accompt with him for such monies as he had received upon Saturday the 26th of Iuly 1654. and for this he brings his Action Vpon issue joyned and a verdict found for the Plaintif it was moved in arrest of judgement that the breach was uncertainly alleged because the Plaintif doth not shew that the Defendant had any Customers in his charge or who they were or that he had delivered Ale or Beer to them or received any mony of them Glyn chief Iustice The charge is too generally set forth Incertain charges for you ought to have shewed what monies he hath received and that it was of those Customers in his charge for the Plaintiff may have several Clarks and some Customers may be in the charge of one Clark and some in the charge of an other Iudgement Nil capiat per billam so that the charge is not certain Therefore let Nil capiat per billam be entred for the Defendant Toft and Day Mich. 1655. Upper Bench. AN Action of Debt was brought in the Common-pleas Error to reverse a judgement In an action upon the Case for making a false retorn of a Writ and a judgement given for the Plaintif who thereupon takes out execution viz. a Fieri facias and delivers it to the Sherifs of Norwitch who executed it by levying the debt upon the goods and chattels of the Defendant after which the Sherifs were discharged their Office and new Sherifs elected in their places Whereupon the old Sherifs redelivered to the party the déeds taken in execution by vertue of the Fieri facias and endorsed nulla bona upon the writ of Fieri facias and delivered it so endorsed unto the new Sherifs and for making of this retorn an Action upon the Case was brought in the Common-pleas against the two old Sherifs and a judgement obtained against them whereupon a writ of error was here brought to reverse this judgement and these exceptions were taken 1. That the Plaintif in his Declaration in his Action upon the Case doth not say that the old Sherifs did retorn nulla bona Retorn but only that they did endorse nulla bona upon the writ which is not a retorn and so the
Action cannot lye for a false retorn 2ly He sayes that the old Sherifs delivered the writ thus endorsed to the new but doth not say that they did deliver it to be retorned viz. by Indenture Indenture as the use is 3ly It doth not appear whether there were any retorn of the writ made either by the old Sherifs or the new 4ly The Action is brought in a wrong County Venue for it is not brought in the County where the endorsement and delivery over of the writ was Latch of councel on the other side answered that the Action was brought for delivering the goods back again to the Defendant after they had taken them by vertue of a Fieri facias and not for the endorsement made upon the writ The rule was to reverse the judgement except cause shewed to the contrary At another day the Court was moved to affirm the judgement and the councel on the other side insisted upon the former exceptions to reverse the judgement Glyn chief Iustice caused the Record to be read and upon Oyer thereof said I conceive it is well and according to the course in that kind for the old Sherifs to make the retorn and to deliver the writ over by Indenture to the new Sherifs and here is also a verdict in the Case and a retorn is not properly a retorn untill it be filed here yet it is the retorn of the Sherif in the County where he is Sherif Shew cause upon notice why the judgement ought not to be reversed Antea Q. Denton Mich. 1655. Banc. sup AN order of the publique Sessions made against one Denton for the kéeping of a Bastard child was removed into this Court by a Certiorari To quash a retorn of an order of Sessions and the party also who was committed to Ailsbury gaol for disobeying the order was brought into Court upon a Habeas Corpus granted unto him and upon the reading of the retorn of the Habeas Corpus this exception was taken to the retorn that it appears by the retorn that the order made for Denton to kéep the Bastard-child was made by the Iustices at the Quarter Sessions and that for not obeying this order he was committed to the Gaol by two Iustices at a private Sessions of the peace whereas the Iustices of the Quarter Sessions had no authority by the Statute to make such an order for it ought to have béen made by the next two Iustices of peace to the place where the Bastard was born And to this Glyn chief Iustice agréed but would not release the Prisoner till he was bound over with good bayl to the next Quarter Sessions for the County of Buckingham to appear there and to answer the fact Att Lee and the Lady Baltinglas Mich. 1655. Banc. sup THe Court was moved on the Defendants behalf To discharge a feme covert upon common bayl that there was an Action upon the Case brought against Baron and Feme and the Feme had appeared but the Baron would not and that the Plaintifs Attorney stood to have special bayl for her which she could not procure and therefore it was prayed that she might be delivered upon common bayl But Glyn chief Iustice answered Denied if there be cause to have special bayl the wife must lye in Prison untill the Husband appear and put in bayl for her for she cannot put in bayl for herself being Covert Baron Elmes and Martyn Mich. 1655. Banc. sup THe Court was moved For time to demur to a plea. for the Plaintif that in respect that the Defendant had put in a special plea and pleaded a very long Award which made the plea very long that therefore he might have time granted unto him by the Court to demur to this plea. But Glyn chief Iustice answered you need not have time to demur to the Plea for you may do that presently Denied Rejoynder but if you desire time to rejoyn in respect of the length of the Ples you shall have it Plummer and Sir Iohn Lenthall Mich. 1655. Banc. sup THe Plaintif shewed to the Court by his Councel that he had brought an Action of escape against Sir Iohn Lenthall the Mareschall of the Marshalsea of this Court To put Sir Iohn Lenthall out of his Office and had thereupon a judgement and an execution on against him but that Sir Iohn though as being Marshall he ought as an Officer of this Court daily to attend the Court did yet nevertheless absent himself so that the Plaintif could not take him upon the execution and that if he were present he doubted whether he might take him for fear it would be an escape of the Prisoners committed to him and therefore prayed that Sir John Lenthall might be put out of his place of Marescall that so he might take him in execution Glyn chief Iustice This is very mischievous Cause let Sir Iohn shew cause Friday next why he should not pay the monies Le Gross and Hall Mich. 1655. Banc. sup IN a writ of Error brought in this Court to reverse a judgement given in an Action of debt The Defendants Councel in the writ of Error moved To reverse a judgement for expedition that the Court would reverse the judgement because they conceived it was erroneons for their own expedition that they might bring a new Action Glyn chief Iustice You have not yet confessed the error upon the Record neither have you pleaded in nullo est erratum as you ought to do Denied for moving o◠soon and therefore you move too soon to have the Iudgement reversed Hamond and Thornhill Mich. 1655. Banc. sup IN the Case of one Hamond and Thornhill in a trespass and ejectment tryed at the Bar Whether Gavelkind-lands held by chivalry he deviseable upon the evidence given it was affirmed by Sergeant Twisden that Gavelkind-lands though they be held by Knight-service tenure might be all devised by Will by the custom of Kent Q. for other Councel doubted of it Arnold and Floyd Mich. 1655. Banc. sup THis Case formerly spoken unto and after a Nil capiat per billam nisi c. ordere◠to be entred against the Plaintif was again spoken unto and the Case put and the exception formerly taken that the Plaintif had declared of a general receiving of mony of such and such Customers and had not accompted for them whereas the Articles for breach of which the Action is brought do express that he should accompt for such monies as he should receive of the Customers which were in his charge only But Green answered that though it was not so expressed yet it should be intended that he had not accompted for all such monies as he had received of the Customers in his charge and as to another exception which was also formerly taken viz. that the Plaintif had not shewed what monies he had received for which the Defendant had not accompted and so he knew not what answer to
on the same side said that the rule in Wagoners case comes home to this Glyn chief Iustice There is an Action upon the case brought by Yates for this matter and if it be found for him we will restore him be the return as it will Custom is the main hinge upon which all disfranchisements do move and if that be not well alleged it will be hard for the disfranchisement Try your cause this Term otherwise we will deliver our opinions upon the return At another bay the Court was moved for their opinion upon the return by Yates his Councel whether it was good or not Wherupon Glyn chief Iust answered It were good you would agree as the Court hath advised But since you will not we will give our judgement for the cause hath depended long And first I conceive that here is good cause to disfranchise the parties for entring of orders made by a pretended Court Cause of disfranchisement which in truth was no Court for their entry of such orders is very prejudicial to the corporation and is to the ill example of others to disturb the government But Custom is the main cause of disfranchising any person for by the disfranchisement the party loses his freehold which is no small loss and therefore not to be put in practice but upon very good warrant yet in some cases for the advancement of government one may be put out of his freehold without a legal procéeding against the party as Sir Iames Bags case is But there must be a Custom or a Statute to warrant it But here appears no such Custom upon the return for the return is that for such offences the parties have used to be removable and dischargeable which is meerly imaginary and a thing in fieri Thing in fieri not in facto and not in facto or in usage and so it is as a dead thing in the womb which never had birth for you have not shewed that it was at any time put in practice or have made any direct affirmance of the Custom as all Customs use to be pleaded All Customs imply two things Possibility and use to wit a thing possible to be done and that the thing hath sometimes been done and so are all our pleadings and the return ought to have in it certainty enough to inform the Court of the master returned although it is not required they should be so precise as pleadings ought to be Return should be certain for both the Court and the party must abide by the return and it is to be acknowledged as true In Wagoners case cited It was touched whether the Custom there was well alleged and concerning the Customs of London also which do differ from other customs they being confirmed by Statute and there they allege a special act of Common Councel by Custom and a Statute also to enable them to do as they did I have considered well of the return and I hold the return to be naught Ill return and therefore let him be restored Ask Iustice concurred in opinion The Court was moved to restore the rest who were 4 in number because all their cases were alike Glyn chief Iustice Let them be restored also nisi c. Restored London and Craven Trin. 1655. rot 44. LOndon and Craven entred into Articles by Indenture betwixt them Arrest of Judgement in an Action of Covenant for breach of Articles wherein London did article to pay 110 l. at a certain day to come unto Craven Craven did article that upon the receipt of the 110 l. unto him from London that he would give unto London an acquittance for the 110 l. and would also enter into an Obligation of 400 l. unto London to save him harmless from all claims which should be made unto certain lands in the possession of the said London in pursuance of these Articles London doth tender the 110 l. unto Craven at the day limited in the Articles but Craven refuseth to receive the 110 l. of London and to give him an acquittance and also to enter into the bond of 400 l. Whereupon London brings an Action of Covenant against Craven for breach of the Articles and assigns the breach to be that he did not give him an acquittance for the 110 l. nor enter into the bond of 400 l. according to the Articles and upon issue joyned a verdict was found for the Plaintif It was moved by the Defendant in Arrest of Iudgement That here is no breach of Covenant shewed by the Plaintif for the Declaration is that the Defendant upon the payment of the 110 l. was to give the acquittance and enter into the bond of 400 l. and here is no payment but only a tender and a refusal of the 110 l. mentioned and it was in the Defendants election either to refuse the 110 l. and to give no acquittance nor enter into the bond of 400 l. or else to receive it and give the acquittance and enter into the bond and so his refusal is no breach of Covenant On the other side it was urged that it was not in the Defendants Election to receive the 110 l. or to refuse it but he was bound by the Articles to receive the 110 l. and to give the acquittance and enter into the bond of 400 l. Glyn chief Iustice Here is a Covenant grounded upon Articles indented and it is the mutual Covenant of both the parties so that he is bound by the Articles to receive the 110 l. at the day limited it is not in his power either to receive it or to refuse it as hath been objected the Defendant had remedy by the Articles to recover the 110 l. Mutual Covenant if it had not been payed at the day and therefore he is bound to receive it and to give an acquittance for it and to enter into the bond of 400 l. and we must make a reasonable construction of the words of the parties But we will advise At another day the case was again put and the opinion of the Court desired And Glyn chief Iustice thereupon said here is no breach of Covenant alleged to ground the Action upon for the Articles express that upon the receipt of the 110 l. the Defendant would give the acquittance and enter into bond and the breach alleged is that the Plaintif tendred the 110 l. at the day and the Defendant refused to receive it and hath not sealed the acquittance nor given the bond of 400 l. and it may be it was the intent of the parties that it should be in the election of the Defendant either to receive the 110 l. or not to receive it and the Plaintif is not prejudiced by the Defendants not receiving of it for if he should sue for the 110 l. the Plaintif may plead this tender and refusal against him and that will be judged a payment and when he sues you for the 110 l. you may sue him