What Bayly must shew his Warrant A special Bayly is bound to shew his warrant to the party whom he is to Arrest otherwise the party to be arrested is not tyed to obey him but he is not bound to shew his warrant to a Stranger but a known Bayly is not bound to shew his Warrant to any Hill 1653. Upper Bench. BY Roll chief Iustice What Writ of Error is good If an Action be brought against three and one of them is an Infant and they all appear by Attorney and an entire Iudgement is given against them all and they all joyn in a writ of Error to reverse this Iudgement this writ is well brought for the judgement was erronious Iudgement because it is an entire judgement for as to the Infant it cannot be good so it is naught to the rest and he cited one Byres case 9 Iac. in the point Porter and Swetnam Hill 1653. Upper Bench. Trin. 1653. rot 723. A Writ of Error was brought to reverse a Iudgement given upon a non sum informatus in the Common pleas in an Action of Covenant brought upon a Lease for years for not paying the rent reserved Error to reverse a judgement upon a non sum informatus in debt for rent and not repairing and this was against an Executrix of the Assignee of the Lessée for years and it was brought as to the non-payment of the rent upon the words yielding and paying and not upon an express Covenant and for that the words yielding and paying are but a Covenant in Law and only an implyed Covenant and ariseth but from a personal Covenant and not upon a real contract as Latch held who argued for the Plaintif in the writ of Error Therefore he said the Action of Covenant could not here lie against the Execuirix as a warranty in Law binds only the party and not privies as Spencers case is Dyer 257. 2ly The Plaintif in the Action doth not declare that the Defendant was made Executrix and if she be but Executrix de son tort demesne she is not liable to this Action Wadham Windham on the other side held that the words yielding and paying in the Lease are an express Covenant and the Aâ—ion here is for rent become arrear in the time of the Executrix and this Covenant being a Covenant which makes the rent payable ratione terrae it doth concern her and an Executrix de son tort is bound to pay the rent Roll chief Iustice take time to answer both Exceptions but I conceive at present that the words yielding and paying are an express Covenant for if they were not what remedy else would there be to recover the rent Covenant for if she be a disseisor neither debt nor Covenant will lie against her At another day Windham argued that the Action was well brought because this is an express Covenant and not a Covenant in Law 2ly It is not material to shew how she is made Executrix and for the first this must be an express Covenant because it is by Indenture although the word Covenant be not expressed for that word is not a word of Art and so not essential to the constituting of a Covenant Dyer 57.27 E. 4. f. 6. And for the second it is well set forth that she is made Executrix for it is said she entred as an Executrix 2ly She hath admitted herself to be Executrix by pleading Latch on the other side held That here is only a Covenant in Law and so is the book in Dyer cited by Windham and the Executrix is not bound here because it is against the Assignee of a Term and the very words doe shew that here is no express Covenant for the words yielding and paying are not the words of the Lessee but only by construction of Law but are the words of the Lessor enjoyning the Lessee to pay the rent Roll chief Iustice How prove you that this Action lies not against an Assignee Latch The case of Overton Sidney proves it for it proves that Debt lies not and by consequence Covenant lies not And for the second matter the Defendant is not intitled to the lease in privity because it is not shewed that she is made Executrix and so she shall be taken but as an Executrix of her own wrong and so is not chargeable because she hath no privity of estate but by her entry nor is it any where ever mentioâ—ed that any can be Executrix de son tort of a Term. 2ly She cannot be a Termor but she must be a Disseiseress for she cannot apportion her own wrong 3ly She cannot make a title to the Term by her entry as it may be by a que estate and therefore it is against reason that she shall be a Termor and there is no authority against this Pasch 25 Eliz. in this Court King and Burges in Mores Reports Dyer 254. Vpon a Demurrer adjudged that it was not shewed how one was Executor Roll chief Iustice What say you to the Objection that the Action is brought against you as an Executrix and you appear and plead and so admit your self to be an Executrix And I hold that here is an express Covenant for the words are the agreement of both parties to the Indenture and then the Executor is chargeable by them and it is not like to the Case of a Demise and there is no difference here between a Covenant in Law and an express Covenant because it is touching a thing which ariseth from the land and so the Assignee is bound by it and this Case is not like the case cited out of Dyer for there the estate was determined but here it continues And as to the last point I conceive prima facie that she shall be accompted a true Executrix and you by pleading have admitted it and if one enter as an Executor upon a Term he may have the Term if the other will admit him to be a Termor and he shall not be accompted a Disseisor to the Lessor and to strangers he shall be accompted an Executor in Law if they bring Actions against him and the Term shall be assets in his hands As if one receive my rent without my consent I may charge him as my receiver Assets or make him a disseisor at my election Curia ad idem and so the Iudgement was affirmed But afterwards it was moved again and the writ of Error was quashed for a variance betwixt it and the Record for the Record is against the Assigns and the writ of Error is to remove a Record against the Assignee Postea Bromefield and Sir Iohn Williamson Hill 1653. Banc. sup Mich. 1651. rot 353. BRomefield brought an Action of Debt upon an Obligation to perform the Covenants of a Lease for years against Sir Iohn Williamson Demurrer to a replication in debt upon an Obligation the Defendant pleaded that he had performed the Covenants the Plaintif replyes and sets forth a breach
KIrk brought an Action of Accompt against Lucas What shall be a good plea in an accompt before Auditors the Defendant Lucas pleads ne unques receptor and upon this Issue there was a verdict for the Plaintif that the Defendant shall accompt whereupon Auditors being assigned he pleads before them in discharge of the Accompt that he received the money of the Plaintif to deliver over and accordingly he had delivered it over The question was whether this plea pleaded before the Auditors was a good plea in discharge of the Accompt Twisden said It was not a good plea in discharge of the Accompt before the Auditors but it had been a good plea in bar of the Action and here it is not shewed that there was any direction given to pay the money over Roll chief Iustice If he plead that it was paid by his consent it is a good plea before the Auditors and this is a good plea in bar if the money be paid accordingly Therefore take your judgement Iudgement nisi The Protector against Richardson Hill 1654. Banc. sup A Writ of Error was brought by Richardson to reverse a judgement given against him Error upon a Iudgement upon an Information for Extortion being by profession a Tayler upon an information of extortion exhibited against him at Oxford at the Assizes there for taking more money of one that bound himself Apprentice with him than by Law he ought and the Error assigned was that the Iustices of Assize have no power to determine offences of this nature and Metcalfs case 11 Rep. was urged and the Statute of 22 H. 8. C. 5. and 28 H. 8. C. 5. But Crook Seignior answered That as they are Iustices of Oyer and Terminer they have power by their Commission to determine offences of this nature and it shall be intended they proceeded here by virtue of that Commission and in 7 Eliz. in Dyer it is a quaere whether the Statute be meant of the Courts at Westminster Certainty is required or no and it would be inconvenient if the Iustices should not enquire of such offences at the Assizes and he cited Gregories case and Cooks Iurisdictions of Courts to prove they have authority Roll chief Iustice But it appears not here by vertue of which of their Commissions you have tryed the offence but you have jumbled the Commissions together in the Record and they have not authority by all their Commissions and besides there is another fault in the judgement for it is not said it is considered by the Court but only it is considered By the Statute of 22 H. 8. the Iustices of Assize by vertue of their Commission of Oyer and Terminer have power to try divers offences if they be not restrained to certain Courts but for the reasons aforesaid Shew cause why the Iudgement should not be reversed Protector and Cartwright Hill 1654. Banc. sup IT was moved on the behalf of Cartwright that he might have allowance of his Plea confessed by Mr. Attorney general pleaded to a quo Warranto brought for the Protector against him for certain liberties which he claimed within the Manor of Offingham in Nottinghamshire For allowance of a plea confessed by the Attorney general the Exception to the plea was that he claimed the Assize of Wine to which it was answered that it is intended only of the measures for Wine and that the Plea had been read and examined by Iustice Ask Roll chief Iustice Let Iustice Ask examine it again Tost and Daye Hill 1654. Banc. sup Trin. 1653. rot 547. A Writ of Error was brought to reverse a judgement given in an Action upon the Case brought against a Sherif for restoring of goods taken in Excution to the party from whom they were taken Error to reverse a judgement in an action upon the Case and for endorsing of nulla bona upon the writ of Execution and delivering over the writ so endorsed to the new Sherif his Successor The Errors assigned ware these 1. It is not said in the Record that he returned nulla bona but only that he endorsed nulla bona upon the writ 2ly It is said that he delivered the writ thus endorsed to the new Sherif but doth not shew that the writ was delivered over by Indenture betwixt the new Sherif and the old to be returned by him 3ly It appears not whether there were any return at all made of the writ by the new Sherif or the old And 4ly The Action is not laid in the County where it ought to be for it is neither brought in the County where the writ was indorsed nor where it was delivered over Latch answered that the Action was brought for re-delivering the goods taken in execution back again to the party Iudgement reversed and not for the endorsing of the writ and delivering it over to the new Sherif But the Iudgement was reversed nisi c. Postea Porter and Swetnam Hill 1654. Banc. sup Trin. 1654. rot 393. IN this Case upon a writ of Error brought upon a judgement given upon an Action of Covenant for not paying of rent reserved upon a Lease for years by Indenture Error in Covenant Express Covenant Writ of Error quashed and judgement affirmed After the opinion of the Court was delivered that the words yielding and paying in the Indenture made an express Covenant and were not a bare Covenant in Law and that an Action of Covenant did well lie upon them the writ of Error was quashed for a defect in it and a new writ of Error brought and thereupon the judgement was again prayed to be affirmed which was done nisi c. Nota. Antea Hill 1654. Banc. sup THe Court was moved for a Habeas Corpus to remove a Prisoner in Northampton Gaol Habeas Corpus that was convicted of felony and had been burnt in the hand Endictment Action upon the Case upon an Affidavit that the Gaoler used him hardly But Roll chief Iustice answered that it could not be but they might either endict the Gaoler or bring an Action against him Hill 1654. Banc. sup THe Court was moved upon an Affidavit for a new tryal For a new Tryal because the Iury were not kept together till they had given their verdict as they ought to be But Roll chief Iustice answered this is a misdemeanor yet the verdict is a good verdict notwithstanding The Iuries misdemeanor spoils noâ— the Verdict yet we will hear the Councel on both sides before we conclude any thing The same Term Iudgement was given upon another motion made for a new Tryal The Protector and Lowr Hill 1654. Banc. sup BArton moved to quash an Endictment preferred against Lowr at the Assizes at Cornwall To quash an Endictment for speaking of scandalous words against the Parliament The Exception taken was that it did not appear in the Endictment that the Parliament was sitting at the time when the words were spoken But Roll chief
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
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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
the jurisdiction of this Court which cannot be and we are not now to examine the jurisdiction but the pleading Therefore shew cause Monday next why you shall not plead in Chief Griffith against Thomas Trin. 1652. Banc sup Mich. 1651. rot 340. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas in an Action of Debt upon an Obligation to stand to an Award Error to reverse a judgement in deb in the C. B. and the Errors assigned were 1. That whereas the Award was to pay a certain sum of money at or before the 25 day of December the breach assigned is that he paid it not at the 25 day 2ly Whereas there are 2 parties of one side and one on the other side that submitted to the Award The Award is that one party shall not prosecute the other 3ly The Condition is that the Award shall be made the 20 day of such a month and it is set forth that the Award was made before the 20 day and doth not say what day it was made But the Councel relyed upon the 1 Exception And to that Latch on the other side answered Award That if it be paid before the 25 day it is then payed at the 25 day 2ly The Condition requires the award to be made under their hands the subsequent averment is to no purpose And as to the 3. the words Alter partium extends to all parties and besides the breach is not assigned upon that Roll chief Iustice If it be paid before the day it is paid at the day and so that is certain enough 9 H. 7. Another exception was taken that the condition was that the Arbitrement should be put in writing by the Arbitrators and it is not so here expressed but only generally that it was put in writing Roll chief Iust It is not to be necessarily understood that it must be put in writing by the Arbitrators themselves Another Exception was taken that here is an Outlawry after judgement there is a fault in the Outlawry for in the Writ to the Sherif it is praecipipimus vobis instead of praecipimus vobis the year of our Lord is in Figures And 2ly it is secundum consuetudinem regni Angliae whereas it was in the time of the Kéepers of the Liberty of England Roll chief Iustice If the word be praecipipimus then there is no command to the Sherif for that word signifies nothing Therefore let the Outlawry be reversed and judgement affirmed Trin. 1652. Banc. sup IN an Action upon the Case the Plaintif declared Demurrer to an evidence that in such a High-way the Defendant digged a hole and that by reason of that hole as he was travelling in the way with his Gelding his Gelding did fall and hurt himself to his damage c. Vpon not guilty pleaded and issue joyned at the Tryal this evidence was given to the jury namely That the Plaintifs Servant was driving his Masters Gelding in the way being loaden with Lead and that by reason of the hole he fell c. To this evidence it was demurred and for cause it was shewed That by the evidence it neither is proved that there was such a way nor what person digged the hole both which are part of the issue to be tryed and so the evidence proves it not and therefore is not good to find the Verdict for the Plaintif as the Iury have done Roll chief Iustice This evidence is no more than a special Verdict and it ought to find the way and the hole digged and all the matter conducing to the issue and therefore it is not good as it is Verdict Venire Therefore let the Verdict be quashed and a new Venire awarded Heard against Read Trin. 1652. Banc. sup IN an Action upon the Case for words the Case was this Arrest of judgement in an Action for words the Defendant being brought before a Iustice of Peace to answer a crime objected against him the Plaintif appeared as a witness to testiffe against him whereupon the Defendant to weaken his Testimony did speak these words of the Plaintif before the Iustice of Peace Thou hast been a contentious man this 30 years and a Breeder of strife and hast taken a false Oath against my Brother and Sister in a matter of incontinency and hast taken 20 s. for it and I will shew it upon Record Vpon not guilty pleaded and a Verdict for the Plaintif It was moved in Arrest of Iudgement that the words were not actionable because it is not said that he is perjured in any Court of Record but that he will shew if upon Record And 15 Car. Morton and Clapams case was cited but on the other side it was said that take all the words together they are actionable and Trin. 22 Car. Osborn and Brookes case was cited Roll chief Iustice The words are said to be spoken falso malitiose and it is not said in the Record that the party spoke them in his own defence and it may be they were spoken by the by and not in the judicial proceedings but it appeared upon reading of the Record Case that they were spoken to disable the Plaintifs testimony Whereupon Roll chief Iustice said That the Action did as well lie in this case as it doth lie for endicting one falso et malitiose for Endictments are more avoured in the Law than private matters between parties Therefore let the Plaintif have his Iudgement nisi Custodes against Howell Gwinn Trin. 1652. Banc. sup HOwell Gwinn was endicted of perjury Arrest of Iudgement in an Endictment for perjury for taking of a false Oath in an Affidavit made before a Master of the Chancery and was found guilty It was moved in Arrest of Iudgement 1. That it doth not appear by the Record that the Oath made was any thing material to the sute depending in that Court and so it is but an extrajudicial Oath and is not perjury either by the Common Law or by the Statute 2ly It doth not appear that the party took a false Oath for it appears not whether the Master of the Chancery had any power to take this Oath and if he had not then it cannot be perjury Latch enforced the 2 Exception and said That a Master of the Chancery hath not power ex Officio to take an Oath and therefore the party ought to shew that he had power to take this Oath but if he hath power he ought not to take it upon the holy Evangelists as it is here expressed but it ought to be upon the holy Evangely for the form is super sacro sancto Evangelio and not Evangelistis Maynard on the other side prayed judgement and that the party may be fined and answered that it doth well appear that the Oath was made touching the cause in question and the Endictment is here laid at the Common Law and not upon the Statute Next it is not necessary to
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
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
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
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