the Lady Anne Holborne a Juror was Challenged because he was retorned by the Name of Mathew whereas in truth his Name was Mark although he was also called Mathew as he affirmed being examined upon a voire dire to say what his Name was and upon this Challenge the Juror was drawn and the Jury could not be taken for want of him but a tales was granted It is neither a principall Challenge nor a Challenge for favour to say that the Juror challenged was a supernumerary Juror in a former Jury retorned for the same parties in a Cause betwixt them and did receive money for his charges of the party for whom the verdict passed By Glynn Chief Justice Certiorary It is not necessary to have a Judges hand to a Writ of Certiorari to certifie a Writ of Error 21. Car. B r. A Certiorari to remove an Endictment doth lye by the course of the Court without moving the Court to it Mich. 22 Car. B. r. After a Writ of Error is brought there must be a Writ of Certiorari directed to the Court where the judgment was given for the reversing whereof the Writ of Error is brought to certifie the record into this Court Mich. 22. Car. B. r. A Certiorari to remove an Endictment is good although it doe bear date before the taking of the Endictment which is to be removed by the Certiorari Mich. 22. Car. B. r. For the date is not materiall When a certificate of a Record is made out of an inferior Court they ought to make the Certifiâ—ate as they will stand to it at their perill and it cannot be afterwards amended Hill 22. Car. B. r. For a Writ of diminution is not grantable to an inferior Court Q. This Court will upon motion grant a Certiorari to remove a judgment given in an inferior Court to the intent that the Plaintiff may have a Scire facias against the Defendant to shew cause why he should not have execution upon his judgement Hill 22. Car. B. r. This was done in the Case of Rooke against Knight to remove a judgement given in Dymchurch a member of one of the Cinque Ports in Kent upon the motion of Lancelot Johnson of the Inner Temple The Justices of Assize may certifie to this Court if a Jury doe finde a verdict against the evidence given them Pasc 23. Car. B. r. That judgement may not be speedily entred upon such a verdict It was doubted whether a Certiorari do lye to the Cinque Ports Pasc 23. Car. B. r. Notwithstanding it was done in the Case of Rooke and Knight If one party pray a Certiorari and have it granted the other party cannot have another Certiorari Pasc 23. Car. B. r. viz. For the same thing If there be cause to certifie the Court touching a custome used in the City of London this Certificate is not to be made in wrâ—ting but the Recorder of London is to certifie the Custome to the Court ore tenus or by word of mouth Trin. 23. Car. B. r. But not if the Custome do concern the Lord Major particularly By Rolle Chief Justice When Justices have authority given them by a Statute within a Liberty a Certiorari lyes to them if the Liberty be not excepted Hill 23. Car. B. r. A Certiorari ought to be granted upon a matter in Law only and not upon a matter of fact Pasc 23. Car. B. r. Out of an inferiour Court the original Record ought to be certified into this Court upon a Certiorari directed to them upon a Writ of Error brought to reverse their judgement but the Common Pleas do only certifie a transcript of the Record before them Trin. 24. Car. B. r. The Pronotaries of the Common Pleas will not make a certificate of any matter before them unto this Court without a Rule of this Court to enjoyn them Trin. 24. Car. B. r. A Certiorari ought to be directed to the Custos brevium and to be retorned by him and is not to be directed to his deputy or retorned by him Mich. 24. Car. B. r. A Certiorari doth not lye to remove a Cause after a verdict is given in it Mich 24. Car. B. r. For then the Cause is determined If a Certiorari to certifie a Record be by some mishap so torn or defaced that the Record cannot be perfectly certified by it the party may have an alias Certiorari Mich. 24. Car. B. r. Vpon motion to the Court. A Certiorari may be granted to remove an Act of Common Councel of the City of London if the Act be made against the Law 6. Maii. 1650. B. S. The Court may grant a new Certiorari to remove a Record before them upon a Writ of Error brought after that in nullo est erratum is pleaded if it be ad informandum conscientiam in affirmance of the judgement but at the prayer of the party that brings the Writ of Error and after in nullo est erratum pleaded they will not do it Trin. 1651. B. r. For judgements are favoured in Law and are to be supported as much as justice will permit Rolle Chief Justice said That he did not use to grant a Certiorari to remove an Endictment but where the party that prayes it doth shew good cause why it should be granted viz. that there cannot be an indifferent tryal had in the County where the Endictment was found And where he doth grant it he orders that it shall be tryed the next Terme following B. r. 24. Car. A Certiorari ought not to be granted to remove an Endictment after the party endicted hath traversed and pleaded to the Endictment By Rolle Mich. 1654. B. r. A Certiorari to remove an Endictment ought not to be made by any of the Clerks in the Capital Office without moving the Judges in it and obtaining a Judges hand to it and a Warrant from the Master of the Capital Office Customes The Customes of London are confirmed by Magna Charta C. 9. Customes which are unreasonable are not good nor to be allowed Trin. 22. Car. B. r. Any Custome which may be intended to have had a lawfull beginning is a good custome 11. H. 7. 14. Mich. 24. Car. B. r. Any thing which may be good and lawfull to be done which had its original from the Consent and agreement made betwixt parties may be good and warranntable to be done by vertue of a Custome Mich. 23. Car. B. r. By the Custome of London an Action upon the Case doth lye against one for calling a woman Whore Hill 22. Car. B. r. But she must be an Inhabitant of London But Q whether it lye or not for by the Common Law it lyes not and Bacon Justice thought the Custome not good And quere it lye for a lodger The Customes of the Universities are confirmed by Act of Parliament Pasc 23. Car. B. r. The Customes of London if there be a question in this Court whether there be such Customes or not are to be
them from the Barr to consider of their verdict because they are not under seal 28. Apr. 1651. B. S. But all Deeds or writings under seal and given in evidence they may have but nothing which was not given in evidence may they have Conveyance A Conveyance made unto one by his reputed Name although he is not the same person in Law as he is reputed yet is the Conveyance good but if such a Conveyance be made to raise a use then it is not good 28. Apr. 1651. B. S. A Conveyance cannot be fraudulent in part of it and good as to the rest 30. Apr. 1650. B. S. For if it be fraudulent and void in part it is void in all for it cannot be divided If I Covenant to Convey Lands to another I am bound to do it at my own charges except it be otherwise agreed betwixt us Trin. 1651. B. S. Certificate This Court will not make a Rule for a Judg to make a Certificate to them of a matter done before them but if the Judg will do it voluntarily they will receive it Clarke By Roll Chief Justice no Clarke ought to be admitted into the Office of the Custos brevium without the consent of the Lord Chief Justice first obtained and those that are admitted ought to be chosen out of the best of the Clarks in the Upper bench Office 1655. Departure When the Plaintiff doth plead in his Replication a matter which is contrary to that which is admitted in his Declaration this is a Departure from his Plea Mich. 24. Car. B. S. Denison An Alien that is made a Denison by the Kings Letters Patents is thereby enabled to purchase Lands but he is not thereby enabled to inherit the Lands of his ancestors as Heir at Law but as a Purchaser he may injoy Lands of his ancestors Mich. 42. Car. B. S. But if he be Naturalized by Act of Parliament he may inherit them as Heir at Law as well as have them by purchase Delivery It hath been the course to Deliver a Lease of Ejectment to the party to whom the Letter of Attorney is delivered and for the Attorney by vertue of his Letter of Attorney to deliver possession of the Land let by Lease upon his delivery of the Lease Pasc 24. Car. B. r. A Deed cannot be Delivered as an escrow to the party himself to whom the Deed is made Trin. 24. Car. B. r. But it must be delivered to a stranger as an escroe for so soon as it is Delivered to the party to whom it is made it takes effect as a Deed and cannot be an escroe Dower A woman was not Dowable of Tythes before the Statute of 32. H. 8. 24. Car. B. r. A woman is Dowable of a Common appendant but not of a Common in gross Pasc 24. Car. B. r. For Common appendant belongs to Lands and Tenements whereof she was endowable and cannot be severed A woman may be endowed of the profits of an Office or of a Faire or of a Market Pasc 24. Car. B. r. Dower is favoured in Law and as it is favoured in it self so is the party that sues to recover her Dower favoured in her proceedings in Law to recover it as much as in jostice may be permitted Pasc 24. Car. B. r. Difference There is a Difference between the Latine words in dilaté and immediaté and it is more proper to direct a Writ to be retorned in dilate then to direct it to be retorned immediate Hill 23. Car. B. r. For to retorne it in dilate is to retorn it with as much speed as may be and not to use any trifling excuses or delayes to retard the retorn of it but to retorn it immediate is impossible for it will require some convenient time to do it in and as it may fall out longer then is expected Depositions Depositions taken in a Cause depending in Chancery though the Cause be there determined or dismissed may be given in evidence at a tryal at the Barr in a suit depending here between the same parties that sued in the Chancery if the party that deposed to the Interrogatories be dead at the time of the tryal else not but those Witnesses must appear in person in Court and be examined viva voce in the Cause and so it is of Depositions taken in any other Court Mich. 24. Car. B. r. Discretion Where a thing is left to any person to be done according to his Descretion the Law doth intend it must be done with sound Descretion and according to Law And this Court hath power to redress things that are otherwise done notwithstanding they be left to the Descretion of those that do them Trin. 23. Car. B. r. For their Descretion is not properly Discretion but folly or madness Devise A Devise of the profits of Lands for years is a Devise of the Lands themselves for so many years as the profits are Devised Trin. 23. Car. B. r. If a man Deviss his Lands to his children without fayeing more this is but a Devise for life 36. Eliz. B. r. In Dickons and Marshals Case adjudged Hill 23. Car. B. r. A Devise to one of any thing which the Law would have cast upon him although it had not been Devised untohim is a void Devise Mich. 24. Car. B r. For his title to it by Law is his ancient and best title and the Law will adjudge him to take by that An Administrator of a Term cannot Devise it but an Executor of a Term may for an Executor hath a greater interest in his own right then an Administrator hath 1651. B. r. Deodands Deodands that is the Goods and Chattels of which felo de se that is of him that kills himself do belong to the Kings chief Almoner that is he that disposeth of the Kings Alms to distribute them to the poor or to employ them in other pious uses and a discharge given for them to any person that hath such Goods of a felo de se in his possession by the Almoner or his Deputy is a good discharge in Law for them but a discharge given for them by an under-Deputy it no good discharge Trin. 23. Car. B. r. Demurrer If a Demurrer be entred it cannot be waived except both the Plaintiff and Defendant do consent unto it Mich. 22. Car. B. r. Nor then without leave of the Court. A Demurrer may be upon a replication Rejoynder c. as well as upon a Plea Mich. 23. Car. B. r. For all parts of a pleading to issue ought to be according to the Rules of Law and if any part fail the whole is naught If the Court do perceive that a Demurrer is put in onely to put off a tryal or for delaying of the proceedings they will not allow of such a Demurrer nor enjoyn the other party to joyn in the Demurrer but will give Judgement against the party upon his frivolous demurrer Mich. 22. Car. B. r. And 24. Car. B. r. Where there ought to be
alleged a place from whence the venue should come and it is not alleged but omitted and yet an issue is joyned between the parties and the veniâ—e is from the body of the County the Defendant may Demur upon the venire facias if he will but if he do not Demur but suffer the tryal to pass this is a good tryal Mich. 22. Car. B. r. For he hath slipped his advantage of Demurrer Where a Statute gives leave to plead generally and the party waives this leave and pleads specially the other party may Demur upon his special Plea if he see cause Pasc 23. Car. B. r. For though he needed not to have Pleaded specially yet having done it the Plea must be good at his own peril A generall Demurrer doth not lye to a Scire facias Pasc 23. Car. B. r. For it is in the nature of a judicial Writ Upon a Demurrer to an evidence given to a Jury at a tryal the Jury are to be discharged and not to pass upon the tryal But the matter in Law in question upon the Demurrer is referred to the Judges to determin Pasc 23. Car. B. r. A Demurrer to an evidence is when the party that doth demurre upon it doth demand the judgment of the Court whether the matter given in evidence be sufficient admitting it to be all true to finde a verdict for the Plaintiff upon the issue that is joyned betwixt him and the Defendant Pasc 23. Car. B. r. And when such a Demurrer is taken the Plaintiff and the Defendant must agree the matter of fact in dispute betwixt them otherwise the Court cannot proceed to determine the matter in Law but there must be a Venire de novo to try it Trin. 23. Car. B. r. The party that is delayed in his proceedings by reason of a Demurrer may move the Court to appoint a short day after to hear Counsel speak to the Demurrer and the Court will grant it Trin. 23. Car. B. r. In a Demurrer upon an evidence the party demurred unto may demand judgment of the Court whether he ought to joyn in the Demurrer or not Trin. 23. Car. B. r. For if there be not a colourable matter for to ground the Demurrer upon the Court will not force the party to joyn in it but will overrule it One cannot demurre upon a thing upon which an issue cannot be taken by reason of the doubleness and by consequence doubtfullness of the matter Trin. 23. Car. B. r. After the Plaintiff and Defendant have joyned in the issue which is to be tried betwixt them neither of them can Demurre without the consent of the other Trin. 23. Car. B. r. For by their joyning in the issue both parties have admitted the whole pleading to be good as to try the issue There must be a speciall Demurrer to a negative preignance that is a negative Plea which doth also contain in it an affirmative and to an argumentative Plea that is a Plea which concludes nothing directly but only by way of argument or reasoning and to a double Plea for a generall Demurrer doth admit them to be good Mich. 23. Car. B. r. For is doth not shew any fault in them as a speciall Demurrer doth One may demurre to a Demurrer for the doubleness of it but if he that might demurre doth not demurre to it but joynes in the Demurrer he cannot demurre afterwards for he hath slipped his advantage Mich. 23. Car. B. r. A Demurrer is double when that he that doth demurre doth assign in his Demurrer for cause of it one error in fact and another error in Law to be in the Plea upon which he demurres which he ought not to do in one Demurrer Mich. 23. Car. B. r. One may demurre to one part of a Declaration and yet plead to the other part of it with a Quo ad c. Mich. 23. Car. B. r. Discharge If an Attachment be granted by the Court against one and he is thereupon apprehended he shall not be discharged upon an affidavit made on his behalf but he that is attached must appear in person in Court and be there Discharged Mich 22. Car. B. r. For it is a personal offence for which he is attached and he shall not therefore be discharged except he yeeld obedience in person A paroll agreement before it is broken may be discharged by paroll or word but after it is broken it cannot be discharged without satisfaction made for the breach of it Hill 22. Car. B. r. For by the breach of it an injury is done to the party which requires satisfaction Hill 20. Car. B. r. If one be arrested by a Latitat out of this Court and the Plaintiff do not declare against him in two Terms after if the Defendant move the Court that he may be discharged because the Plaintiff doth not prosecute his suit against him the Court will Discharg him Pasc 23 Car. B. r. For liberty is precious and much favoured in Law If the Plaintiff at whose suit the Defendant is in execution do give the Defendant leave to go at large that is out of prison the execution is thereby discharged and if the Plaintiff do take the Defendant again upon the same execution and commit him to prison the Defendant may bring an Audita quercla against the Plaintiff for his illegall imprisoning of him Mich. 23. Car. B. r. For it shall be intended that the Plaintiff had satisfaction upon the execution or else he would not have given the Defendant leave to go at large A Prisoner that is committed for Felony and brought to this Barr by a Habeas Corpus cannot be discharged although the retorn upon the Habeas Corpus be not sufficient to give the Court satisfaction that he was justly committed Pasc 24. Car. B. r. A Prisoner that is brought to the Barr to be bailed by a Writ of Habeas Corpus if he were committed for matter on the Crown side he must be brought into Court on the Crown side that is on that side of the Court where the Master of the Crown-Office sits but if he stands committed for a matter determinable on the Pleas side he must be brought into Court to be bailed on that side of the Court where the Master of the Kings-Bench Office sits viz. on the left hand of the Lord Chief Justice Pasc 24. Car. B. r. Of later time it hath been permitted by the Court to Discharge the bail if he bring in the principall before the retorne of the second Scire facias issued out against the bail but antiently it was not so Mich. 24. Car. B. r. A Judgment cannot be Discharged by pleading a Paroll agreement between the parties to discharge it 27. Jan. 1650 B. S. For matters of record are not to be wiped off with words Disseisor If one enter wrongfully into my Lands and after his entry I accept rent of him for the Land I cannot afterwards take him for a Disseisor Trin 24. Car. B. r. For
Regestum Practicale Or the Practical REGISTER Consisting of RULES ORDERS AND OBSERVATIONS Concerning the COMMON-LAWS and the Practice thereof But more particularly applicable to the Proceedings in the UPPER-BENCH As well in matters Criminal as Civil Taken for the most part during the time that the late Lord Chief Justice ROLLE Did sit and give the Rule there By WILLIAM STYLE of the Inner-Temple Esq Alphabetically digested under several Titles With a TABLE directing to the ready finding out of these Titles Semper ego Auditor tantum Nunquam ne reponam Juvenal 1. Sat. London Printed by A. M. for Charles Adams at the Talbot neer Saint Dunstans Church in Fleet-Street 1657. To the Honorable JOHN PARKER One of the Barons of his Highness the Lord PROTECTORS Court of Exchequer William Style wisheth the confluence of all Temporal Prosperity here and Eternal Felicity hereafter SIR VErbum Sapienti sat est is a saying as equally True as Ancient and therefore I need not here use many neither will I especially at this time wherein your Serious thoughts are I presume more then usually busied in matters of High and Publike concernment and ought not to be interrupted with Private and matters of slight moment In breif therefore I humbly present to your View and favourable acceptance this small Collection of some Remarkable things chiefly concerning the general Practice of the Common Laws but more particularly relating to the manner of proceeding used in the Court of the Upper-Bench observed and taken by mine own hand during my constant attendance at that Bar for some years last past I was the willinger to give way to this publication that I might make it more visibly appear that I am not ashamed of my profession but dare do something in order thereunto in this very Age wherein our Laws are so much undervalued and traduced by many the practicers thereof so much slighted and the very practice it self is sunk to so low an ebb And I am humbly bold to fix your name in the Front of it that I may in some measure revive the drooping spirits of many cast down with the sad consideration of the uncertain event of things by letting them see that there is not so great cause of doubts and fears as they timorously phancy since we are not yet destitute of grave Sages and Fathers of our Laws men of Wisdome and courage that are not onely themselves ready to appear in their just defence and maintenance but also to cherish give encouragement to the honest though weak endeavours of the meanest professors thereof Sir in having the happiness to be by birth your Countryman and almost of the same neighborhood I am thereby the better known to you and I receive no small content therein but more especially when I consider how much your Country and profession is honored in you and that you possess so high a place of Dignity in that very Court where a neer Ancestor of mine with modesty be it spoken did for many years sit and dyed a Baron These things with my recollected thoughts of those many Civilities I have formerly received from you do induce me to hope you will gently pass by the many defects you may perchance herein meet withal and which may justly render the Worke unworthy of your approbation or protection and with such favor to entertain it that I may be thereby hereafter emboldened to present you with some other of my labors that may prove more worthy of you and may more fully answer the expectation and desires of many Inner Temple Oct. the 20. 1656. THE PREFACE TO THE READERS To whom it doth or may any wayes concern MAny and frequent have been the clamors of some infatuated Spirits of this distempered Age who like the Divel that Arch enemy to all good Government and Order labor to bring all things into confusion yea if possible into the Original Chaos against the Common Laws of this Nation and the practice thereof I must confess their pretences though they are as false as malicious do yet seem specious and fair in appearance and are too apt to take with the vulgar and ignorant and no wonder for they Athenian-like pleased with novelties and constant to nothing but inconstancy are ever thirsting after change and alteration though to the worse as children long to vary their Sports and shift their Toyes and Baubles It is true that all Creatures man onely excepted do observe the Rules of Nature prescribed unto them in a constant and setled way but he by his fall did loose that perfection and hath thereby not onely subjected the Creature but himself to vanity and vexation of Spirit this is not onely true of man in his puris naturalibus but even of those whose Souls are hightened above the common pitch by civil education and good literature yea even of Gods dear children who have those extraordinary Characters of his strength and goodness fixed upon them and see things with a clearer light then meer Nature improved to the utmost can afford So truely may that Ancient and common saying be applyed to all Mens humana novitatis avida That therefore many things are oftentimes disliked and inveighed against even by well-meaning and otherwise discreete men is no found conclusion that they are naught and fit either to be abolished or reformed but that mens minds are unsettled and restless and not long to be satisfied with any thing be it in it self never so excellent and desirable This truth is abundantly manifested by Solomon the wifest and greatest of men of his Age if not of any since in his book called the Preacher â— 1. and 2. These things considered though in my Judgement who have for this six and thirty years last past and upwards been a Student of the Common Laws and for a great part of that time carefully observed the general practice thereof yea I believe also of many more far more ancient in time and of far deeper judgments and more eminent in parts then my self there is not to be found either in the Laws themselves or in the practice thereof any such considerable inconveniences or of such dangerous consequence as hath been and yet is by some pretended I do not think it strange to have heard so loud cryes and calumnies of late falsly voiced and printed against them Endeavors and expedients have been prudently studyed and warily put in practice by the Grave and Learned Judges and Sages of this Nation to give satisfaction unto and to prevent greater mischiefs if possible which might arise from the unsetledness of this Nulli-legian brood by ordering and regulating as much as might be without impairing the excellencies of the Laws themselves and the due and ready administration of equal Justice those things against which they conceived there was or could be any colour or shadow of exception but how these men have been satisfied therewith or whether the people have received hereby that general benefit as was supposed I
leave to the Learned to judge and to those that have made experience thereof For my own part I must confess I cannot yet conceive alwayes submitting to better Judgements that our Common Laws and the practice thereof which are of so great antiquity and have been from Age to Age to this present time refining and working into this modle and so happily continued not only to the good and flourishing of this Nation in our own Country but to the making of us thereby famous and renowned through the whole Christian World can admit of a suddain alteration for the better but do rather fear that experience will in time manifest if it doth not already too much appear that as great if not greater inconveniences may fall out to the people by those alterations that have been already made then there did usually happen before they were undertaken and put in practice So difficult nay so dangerous a thing it is on the suddain and by the advice of a few though Learned and discreet men to better that which hath been the study and constant endeavor of many Ages to bring to that excellency perfection and beauty in which the judicious with joy and content do behold it to appear I speak not this to reflect upon the Judgements or actions of those that have assayed any thing in this kind I know they are placed in many Orbes above me and may see much further and will therefore rather conclude my self to be short sighted in apprehending then say there hath been any mistakes in the not right stating of things Nor do I hope thereby to stop the clamorous mouths of the malicious and ignorant for this would be as much folly as Surdo cancre or to present colors to the blind to distinguish of when their impudence is grown less and their knowledge greater it will be then and not till then a fit time to bespeak them with reason till when I leave them But my desire and intentions herein are in part to settle the wavering minds of such who though they are not over-swayed with a prejudicate opinion or so much raised with self-inteâ—est to run clean beside the fair mark of good Laws Order and Government may yet be unresolved in their judgements what to determine concerning those Laws and the practice thereof which have been of late without any restraint so much vilified and despised And this is also one cause which moved me to give way to the publishing of this ensuing Treatise that they may thereby receive information not from me but from the Oracles of the Law the grave and Learned Judges of the Upper Bench and more particularly from the mouth of that upright stout and polished Pillar of the Law the late Lord Chief Justice ROLLE what the Law and the practice thereof is and hath been for these latter years yea even at that very time wherein they were so much and so falsly clamoured against wherein I doubt not but there may be found to be by those that will and can understand it so much reason and such universal and impartial Justice in the Laws themselves and so much care and circumspection daily used in the general parctice of them for the equal and speedy distribution thereof that they shall not need a Champion to stand up in their vindication As for those miscarriages which do sometimes and it may be too often fall out in the retarding of Justice to the prejudice of the Clyents I dare say that they are usually occasioned either by their own negligence or wilfulness and are not to be charged upon others and for those that do befall them other wayes either by the ignorance or falsity of those they intrust which so long as man is but man may sometimes be you will find that they are no sooner discovered and complained of in the right place but they are rectified and if there be cause the offences exemplary punished and all possible care that may be from time to time taken to prevent and meet with the like inconveniences for the future so far are and have bin the Sages of the Law at all times from countenancing or tolerating any thing that may stop or obstruct the stream of Justice from flowing readily and indifferently to all For the Book it self I cannot call it a perfect Work you see I aver it to be no more then a few years Collections and Observations thereupon and indeed they were onely taken for private use without any thoughts of making them publike yet such as it is I conceive it may not altogether prove useless for it being the first essay of this nature that I find endeavoured or put forth by any it may if it may nothing else at lest encourage others hereafter to make a further progress in this kind now that the way is pointed at then the short space of time allotted me to travail in hath suffered me to do and to add heaps to my gleannings and to nourish up this my Babe to such a growth and perfection that it may happily when I am gone forget its first Parent and own another name and Author as I have known some books to have done It may also be probably some direction to those that begin to practice at the Bar but especially in the Court of the Upper Bench how to practice fairely and with ingenuity and to make motions befitting the honor and wisdome of the Court to grant and may stand with modesty and discretion in relation to themselves to move and not frivolous and useless yet chargeable to the Clyent and though it be not worthy to be an Instructer to the long experienced and ready practicer to whom I presume few things of this kind can prove new and unheard of yet way it perchance at some time or other be their remembrancer of those things though but ordinary which multiplicity of business will not suffer them on the suddain to call to mind a thing which I have often observed to befall many able and well-versed practicers and no wonder for the best memories do often prove treacherous I have made it my business to observe with diligence and to render with candor not mine own but the sence of the Court in all things and as neer as I could in the very words they were delivered yet many things being spoken obiter and all men subject to mis-apprehensions and my self it may be as much as others I will not labor either to free the book wholly from errors nor my self from mistakes but leave both to the Readers candid construction and censure Thou maist perchance think it strange that so ample a subject as the Title of the book sets forth should swell it to no bigger a volume and also ask me why upon many of the heads in the book which in themselves do afford such copious matter I am so brief and concise For the first know that my pretentions are not at thou mayest see in the very Title of the
to defraud the Plaintiff of his appearance but the Atturney ought by the Rules of the Court to appear for him according to the Rules of the Court notwithstanding his Warrant be so repealed Trin. 22. Car. B. r. If an Atturney do practice deceitfully an Attatchment lies against him out of this Court at the prayer of the party grieved if he make it appear to the Court and good costs shall be given against him 22. Car. B. r. An Atturney and his Clerk were both committed by the Court for entring things against express Rules of the Court and after notice of those Rules given them by the Atturney of the other side 22. Car. B. r. One Atturney ought not to suffer another Atturney to practice in his name by reason of many inconveniencies that often happen to the Clyents by this means 22. Car. B. r. One G. H. an Atturney was ordered to be put out of the Roll of Atturneyes for entring a judgement against an express Rule in Court Mich. Car. 22. B. r. but it was not done The proper place for the Atturney General to sit upon any special matters wherein his attendence is required in Court is under the Judges on the left hand of the Clerk of the Crown Mich. 22. Car. B. r. No Under Sheriff ought to be Atturney for it is often the cause of encreasing of Suits and also a hindrance in dispatch of Clyents causes Trin. 23. Car. B. r. If the Atturney of the Plaintiff or Defendant do dye hanging the Suite and the other party whose Atturney is dead have notice given of it and will not retain another Atturney to prosecute for him the other party may proceed and is not bound to hinder his Clyents cause for it Mich. 23. Car. B. r. The Plaintiff or Defendant may change his Atturney pending the Suite without leave of the Court but it is not fair practice to do it without just cause Mich. 23. Car. B. r. It was the old course in proceeding in an Action of Trespass and Ejectment to deliver the Lease of Ejectment to the party to whom the Plaintiff had made a Letter of Atturney to execute the Lease and for the Atturney to deliver possession of the Land upon the delivery of the Lease Pasc 24. Car. reg If one have a Letter of Atturney to deliver a Deed to another and also authority from the party by word of mouth to do it he may make use of which of these he will to do it by but not of both for the first that he makes use of shall be effectual and the other shall be void Pasc 24. Car. B. r. An Infant ought not to appear to an Action by an Atturney but by his Guardian for he cannot retain an Atturney but the Court may assigne him a Guardian Pasc 24. Car. B. r. The Atturneys ought to be ordered in the ordinary manner of their practice by the Master of the Office and if differences arise betwixt them concerning it he is to hear both parties and to order the matters in difference betwixt them and they are to submit to him Pasc 24. Car. B. r. and the Court is not to be troubled but in extraordinary and difficult matters If there be divers Defendants declared against in one Declaration the Atturney in the cause on the Defendants part cannot be compelled to appear for more of the Defendants then for those from whom he hath Warrant to appear 24. Car. B. r. If one retain one by Warrant to be his Atturney in a Suite depending against him in this Court he may appear for him by that Warrant in all Suites which are there depending against him Hill 1649. B. Sup. Atturneys ought to be of some Inns of Court or Inn of Chancery and not to lodge in Inns or Ale-houses or in private places By Roll chief Justice Hill 1649. B. Sup. 8. Feb. Atturneys of the Upper Bench ought to be allowed in all Circuits as the Atturneys of the Common Pleas are although it hath been denyed them in the Western Circuit and ought not to be compelled to pay extraordinary Fees for practising there per Rolle Pasc 1650. 1. Maii. vid. 1. H. 7. f. 12. a. that the Atturneys of the Upper Bench are not Atturneys upon Record Ergo quaere An Action upon the Case lyes for the Clyent against his Atturney if he plead a Plea for him for which he hath not his Warrant Hill 49. B. Sup. The Atturneys of this Court were ordered from hence forth to besworn as the Atturneys of the Common Pleas are by Rolle Pasc 1650. 1. Maii B. Sup. One cannot force an Atturney to be his Atturney against his will by Rolle Chief Justice One may be an Atturney for a Clyent upon Record and yet another Atturney may act all the business for this Clyent An Atturney that hath Warrant to appear for his Clyent may plead for him without another Warrant by Rolle Chief Justice See Q. for divers Clerks in Court said privately that he cannot plead no any other Plea for his Clyent without a special Warrant but a non sum informatus If an Attnrney dye pending his Clyents cause his Warrant of Atturney is determined and his Clerk may not proceed in the Suite without another Warrant by Rolle Chief Justice Actions There ought to be both apparent malice in the Defendant and prejudice also done to the Plaintiff to ground an Action upon the Case upon or else it will not lye for if there be only malice and no dammage done by it there can be nothing recovered and so the Action will be vain and to no purpose and if there be only dammage and no malice it is but damnum sine injuria and not punishable by Law Hill 21. Car. B. r. Where there are two several dammages done to the party he ought to have two several Actions and not to joyn them in one Action Entred Oct. 156. 20. Car. Hill 21. Car. B. r. Although dammage without wrong will not maintain an Action nor malice without dammage yet malice may aggravate the dammages recoverable where there is dammage and wrong meeting together Hill 21. Car. B. r. Where two Actions though of several natures do depend one upon the other the abatement of one of the Actions is the abatement of both Hill 21. Car. B. r. In an Action upon the Case grounded upon a promise the Declaration is Actio in super casum in the singular number although the Action be brought upon divers promises for the word Case includes all 21. Car. B. r. An Action brought against a Constable for a thing done by him by vertue of his Office ought by the Statute to be brought against him in the County where he is Constable and not else where 21. Car. B. r. A Transitory Action may be laid in any County at the will of the Plaintiff yet generally and it seems the better and more indifferent course so to do it useth to be laid in that County where the cause
For then the Defendant is to go only upon common Bail If the Plaintiffs Atturney do onely tell the Defendants Atturney that his Clyent is to put in special Bail it is sufficient and there common Bail is not to be admitted although the Roll be not marked for special Bail 3. Feb. 1650 B. S. For the notice that there ought to be special Bail is the thing required and the marking of the Roll is but to give notice If one that lies in Execution do bring his Audita Querela he is Bailable 7. Feb. 1650 B. S. So held in Trittons Case By a Rule of the Court the Plaintiffs Atturney must receive the Bail given before the Judge from the Judge himself the same Term it was put in upon pain of five shillings 21. Feb. 1650 B. S. When one becomes Bail for another in an Action of Debt he doth in Law assume or take upon him to render the body of the Principal if he be condemned or else to pay the Debt he is condemned in Pasc 1652. per Rolle B. S. Untill a Capias be Returned against the Principal the Bail shall not forfeit his Recognizance for the principals not appearance by the Ancient course of the Court but at this day by the indulgence of the Court he shall not forfeit his Recognizance if the Principal come in at any time before the Return of the second Scire Facias against the Bail Trin. 1652. B. S. If one be sued in this Court for twenty pounds or above the Plaintiff may by the course of the Court require special Bail but if he sued for a less some common Bail must be accepted Per Barrell Clerk there Special Bail is not generally to be given in an Action of Battery yet in some such cases the Court will compell the Defendant to put in special Bail viz where they perceive it was a foul Battery and much dammage done by it else an Action of Battery is thought a slight Action and not worthy of special Bail If there be no Writ in the Roll nor any notice given for special Bail and common Bail is filed the Plaintiff cannot by the course of the Court require special Baile By Rolle Chief Justice Bail is not to be accounted Bail properly until it be filed for then and not before it is upon Record By Rolle Chief Justice If the Defendant put in Bail before a Judge and it is allowed and yet he will not file it the Plaintiff may if he will at his own charge file it By Rolle Chief Justice Pasc 1655. To avoid Error If Bail be taken by the Judge de bene esse the Plaintiff ought by the Rules of the Court either to allow the Bail or to shew cause to the contrary By Rolle The sufficiency or non sufficiency of Bail ought to be first exaimed by the judge at his Chamber before the Court is to be troubled with the matter but if the Judge cannot make the Plaintiff and Defendant agree in the giving and taking of the Bail then the Court is to be moved in it whereupon they will order both parties to attend and the Bail also and will examine the cause of Action and the Bails sufficiency and settle the matters in difference according to reason By Rolle Chief Justice The cause of marking the Roll for special Bail in this Court is because the cause of Action doth not appear upon the Latitat by which the party was Arrested but it is to be made appear by the Declaration By Glyn Chief Justice But in the Common Pleas where they proceed upon an Original the cause of Action doth appear Burglary Burglary may be committed by one though he do not break a house open for if he be within the house and steal away the goods in the house and open the door on the inside and go out and carry away the goods this is Burglary 22. Car. Trin. B. r. Bankrupt He that is a Bankrupt to one Creditor is accounted in Law to be a Bankrupt to all 22. Car. B. r. He that is once adjudged to be a Bankrupt is to be alwayes accounted to be a Bankrupt 22. Car. B. r. If one shall with an intent to support the credit of a Bankrupt suffer him to have his goods in his custody and to dispose of them the property of these goods shall be accounted to be in the Bankrupt and the true owner of the goods shall lose the property in them 18. Ap 1501. B. Sup. As a punishment for his false dealing herein and of the mischiefs which may grow by such devises to evade the Laws Bench. Where one brings an Action for a Covenant broken he ought to Assign the breach of it in such manner that the Defendant may justifie or take an Issue Hill 22. Car. B. r. Else the party can make no defence for himself If one bring an Action of Covenant against another for not repairing houses c. demised unto him he ought to Assign particularly wherein the want of reparations do consist and not to declare generally Hill 22. Car. B. r. For reparations do consist of particulars If an Action of Debt be brought upon an Obligation for breach of the condition thereof the Plaintiff is not to Assign in what the breach is untill the Defendant hath pleaded performance of the condition Hill 22. Car. B. r. Baliff A Bailiff may execute a Writ out of the Hundred where he is Bailiff Pasc 23. Car. B. r. For he is Bailiff all the County over if he be the Sheriffs Bailiff and not a Bailiff of some Liberty within the County A Bailiff is a servant or minister of the Law and by consequence he is a servant to the party at whose Suite he is to Arrest any one Pasc 24. Car. B. r. A Sheriffs Bailiff is not an Officer of the Court but the Sheriff himself is the Officer that the Court takes notice of Pasc 24. Car. B. r. Bargain and Sale A Bargain and Sale made by one who is not in possession though it be by Deed inrolled is not good if there be no Livery made thereupon Mich. 23. Car. B. r. If one buy a thing of another he that buyes it ought to pay the money he hath agreed to pay for it before the seller of it is bound to deliver it Pasc 23. Car. B. r. One may upon a good consideration dissolve by Paroll onely an absolute Bargain Pas 24. Car. B. r. One may sell his priviledge given him by the Law as his birthright as a freeborn subject for a good consideration Trin. 24. Car. B. r. If one that is indebted do really and bona fide sell his Lands though it be with an intent to avoid the paiment of his Debts this sale is good if the Vendee be not privy to his intent Mich. 24. Car. B. r. If one Bargain and Sell Lands of which another is in possession and claims title to them this Bargain and Sale is not good Trin 1651. B. S. Because
certified by the mouth of the Recorder Pasc 24. Car. B. r. By a Custome which they have in the Town of South-hampton if a bastard child be found within the Town and the father of it cannot be discovered he that comes next into the Town after the Childe was found must keep the Child Mich. 24. Car. B. r. It may be they of the Town did time out of minde agree amongst themselves that it should be so By a Custome of the City of Bristol an Action brought against one upon a bare promise of the party that he would pay the money or upon a concessit selvere is maintainable there and so it is by the Custome of London 31. Jan. 1649. B. S. If two persons be found in arrear upon an Accompt grounded upon the Custome of Merchants any one of them may be charged to pay the whole summe that both of them were found to be arrear upon the accompt and this is by the Custome of Merchants 26 Jan. 1650. B. S. If there be a tryal to be had Whether there be such a Custome as is pretended with in the City of London or not this issue cannot be tryed in the Upper Bench but it must be tryed in London in the Hustings 27. Jan. 1650. B. S. By a Custome used at sea the goods in a ship which is taken as prize ought not to be taken out of the ship before the ship so taken be condemned for prize in the Court of the Admiralty By Rolle Chief Justice in the Case betwixt Lever and Smith Mich. 1654. B. S. Compulsion None shall be Compelled by Law to shew or declare any thing of which by common intendment he cannot have knowledge 38. H. 6. f. 3. Mich. 22. Gar. B. r. Counsell and Counsellor A Counsellor ought not to set his hand to a frivolus Plea or Demurrer to delay a tryal Mich. 22. Car. B. r. For it is not fair practise After the Court hath delivered their opinions of the matter in Law depending before them the Counsell at the barr ought not to urge any thing more for the Clyent in that Cause Mich. 22. Car. B. r. For it is uncivil not to acquiesce in the judgement of the Court but to seem unsatisfied therewith One that is endicted for felony may have Counfell assigned him to speak to matters in Law which may arise upon the Endictment Pasc 23. Car. B. r. One cannot have Counsell assigned by the Court upon an Endictment in forma pauperis Pasc 23. Car. Mich. 1649 B. r. But Counsell must be assigned to him by warrant under the hand and seal of the Lord Chief Justice that the Counsell may have it in his hand to shew to the Court if they require Where Councel is Assigned to one that is Indicted for Felony the Councel Assigned ought to be entred upon Record Pasc 24. Car. B. r. County Some part of the County of Chester is not within the County Palatine of Chester Mich. 22. Car. B. r. Where a River doth run betwixt two several Counties there one half of the River belongs to one County and the other half of it belongs the other County Pasc 23. Car. B. r. viz. From the shoar to the middest of the River as far as the River extends in length upon the County Constable If one that is elected to the Office of a Constable do refuse to take his Oath to serve in that Office this Court may send forth a Writ unto him to compell him to do it Mich. 22. Car. B. r. If a Court-Leet do not elect a Constable where they ought to elect one or do not give him his Oath to execute his Office as they ought to do the Quarter Sessions in the County where the Leet lies may do it Mich. 22. Car. B. r. A Constable that is a Constable in one Town cannot execute the Office of a Constable in another Town Pasc 24. Car. B. r. Commission and Commissioners The Commissioners of the Statute of Bankrupt have not authority by the Statute of 1. Jac. to transfer any other Action to any person in order to the recovery of any of the goods of the Bankrupt but onely such Actions as the Bankrupt himself might have had to recover them if he had not been found a Bankrupt Mich. 22. Car. B. r. The King may by his Commission make one or more Deputy Escheators to find an Office after the death of a noble man or for some other special cause Pass 24. Car. B. r. A Justice of Assize may have a special Commission to ride the Circuit alone but if his Commission be generall and according to the Statute he is to have an Associat joyned with him in the Commission Trin. 24. Car. B. r. Sessions If a Court-Leet do not choose a Constable or do not give him his Oath to execute his office the quarter Sessions of the County where the Leet is may do it Mhich 22. Car. B. r. If one speak of a thing to be done at the General Sessions of the Peace it shall be intended to be meant that it was done at the Quarter Sessions Trin. 24. Car. B. r. For that is the most General Sessions being held for the whole body of the County Commitment None shall be committed for a contempt done to the Court if the contempt do not clearly appear to the Court Mich. 22. Car. B. r. Every Commitment to the Goal ought to be made by Warrant under the hand and seal of him that commits the party and the cause why the party is committed ought to be expressed in the Warrant Pasc 23. Car. B. r. This is true of Commitments made by Justices of the Peace in the Country but this Court may commit by Parol Contempt One may be committed for a Contempt done to the Court but the matter of the Contempt must be certain and not doubtfull Mich. 22. Car. B. r. An Attachment lies against one for a Contempt done to the Court Hill 22. Car. B. r. If the Court make a Rule in an Action of Trespas and Ejectment that the Defendant in the Action shall confess the Lease Entry and Ouster and yet at the Tryal the Defendant will not do it the Plaintiff must proceed notwithstanding in his Tryal but he may also proceed in this Court against the Defendant upon his Contempt in not obeying the Rule of the Court Pasc 24. Car. B. r. If one take out Execution upon a Judgement after that a Write of Error is brought in this Court to Reverse the Judgement and after the Writ of Error is allowed in the Court where the Judgement was given this is a Contempt to this Court Trin. 24. Car. B. r. But it is no contempt if the Roll be not marked or notice given to the party of the Writ of Error brought Mich 1649. B. r. The Plaintiffs Atturney is not bound to search the Record whether a Writ of Error be brought or not but may take out Execution upon the Judgement given for his Clyent if
they were preserved as things of value and to be made use of A writing that is permitted to be read to prove one part of an Evidence given to a Jury may be read to prove any other part of the whole evidence to be given Mich. 24. Car. B. r. If the Plaintiff or Defendant will give some part of an answer in Chancery in Evidence to a Jury the Court may order that the whole answer be read Mich. 24. Car. B. r. That the Court and the Jury may the better consider what it makes to the Evidence and it may be if part onely be read it may prove good Evidence for the party whereas the whole answer taken together may be against him He that takes out a Copy of part of a Record out of any Office with intent to give the Copy in Evidence to a Jury must take out so much of the Record at least as doth any wayes concern the matter in question at the tryal or else the Court will not suffer such Copy to be read in Evidence to the Jury Pasc 1650. 2. Maii. B. r. For if it be not so taken out it cannot be sworn to be a true Copy of so much of the Record as concerns the matter in question which is to be done before it can be read A transcript of a Record which is in another Court or an Enrolement of a Deed may be given in Evidence to a Jury Mich. 1649. B. S. For they are things to be credited being made by Officers of trust Upon a tryal at the Bar the Councel of that party who doth begin to maintain the Issue that is to be tryed whether it be the Councel of the Plaintiff or the Councel of the Defendant ought to conclude the Evidence Pasc 1650. 1. Maii. B. S. If any one of the Jury that is sworn to try the Issue be desired to give his Testimony concerning some matter of Fact that lies in his particular knowledge and concerns the matter in question as Evidence to his fellow Jurors the Court will have him examined openly in Court upon his Oath touching his knowledge therein and he is not to deliver his Testimony in private unto his fellow Jurors 31. Oct. 1650. Mich. B. S. For the Court and Councel on both parts are to hear the Evidence as well as the Jury In the case of Miller Plaintiff and Collumbine Defendant upon a tryal at the Bar in an Action of Trespas and Ejectment It was said by Rolle Chief Justice That an Office which is found after the death of one that died Seised of Capite Lands in a County wherein the Lands found in that Office do not lye but in another County may notwithstanding it was not found in the County where the Lands do lye be given in Evidence to a Jury that is to try the title of those Lands if there was a special Livery granted unto the Heir of those Lands 1654. B. S. The Jury may view Depositions taken in Chancery if they be exemplified under the great Seal and they may also have them with them from the Bar to consider of as part of the Evidence but if they be not exemplified under the great Seal they may only look upon them at the Bar but not have them with them out of Court 1655. B. S. If one do produce a Lease made upon an Out-lawry in Evidence to a Jury to prove a title he must also produce the Out-lawry it self but if he produce the Lease to prove other matter he needs not to shew the Out lawry but may have the Lease onely read in Evidence and so it is of an extent without shewing the Statute or Judgement on which the extent is grounded So held in a tryall at the Bar between Johnson and Spencer Pasc 1655. B. S. By Glynn Chief Justice it was said That all the Judges have agreed that upon the Meal Act the Defendant shall give matters in Evidence to the Jury which do onely tend to prove the Issue in question and no other matter Trin. 1655. B. S. For that act is so mischeivous that it is no way to be favoured Emparlance If the Plaintiff do amend his Declaration at any time after it is delivered to the Defendants Atturney or after it is filed in the Office in any thing that is matter of substance the Defendant may by the Rules of the Court Emparle to the next Term after that the Declaration is so amended if the Plaintiff do not pay costs to the Defendant for his amendment but if the Defendant do accept of Costs of the Plaintiff then the Defendant cannot Emparle Mich. 22. Car. B. r. In what Term soever a declaration comes in against the Defendant the Defendant may by the Rules of the Court Emparle to the next Term after before he can be compelled to plead Mich. 22. Car. B. r. For the Law doth not force any one to do any thing rashly and without advice but gives the party time to deliberate what to answer for himself Where the Defendants Case doth necessitate him to plead a special Plea and the matter is difficult which is to be pleaded the Court upon a motion made to inform them of it will if the Defendant desire it grant him longer time to Emparle and put in his Plea then otherwise by the Rules of the Court he ought to have Hill 22. Car. B. r. Where the Plaintiff doth keep any Deed or Writting or other thing from the Defendant which doth belong unto him and whereby he is to make his Defence and is disabled by the detaining thereof to plead for his best advantage the Court upon motion and information thereof will grant an Imparlance to the Defendant untill the Plaintiff do deliver it unto him and a convenient time after till he can draw up his Plea Hill 22. Car. B. r. For the Law doth give every Defendant convenient time to make his best defence If the Plaintiff alter the venue from the place where he first laid it the Defendant may Emparle to the next Term after Trin. 23. Car. B. r. For thereby he may be forced to alter his Plea If the Plaintiff do declare against the Defendant but doth not proceed further thereupon for three whole Terms after the Defendant may Emparle to the next Term by the Rules of the Court Hill 23. Car. B. r. If the Plaintiff amend his Declaration and pay Costs to the Defendant the Defendant may not Emparle but if the Plaintiff give the Defendant a new Declaration or do so amend the old Declaration that it is upon the matter a new Declaration then the Defendant may Emparle Mich. 1654. B. S. By Rolle Chief Justice If the Plaintiff and the Defendant have proceeded so far as to Issue in the Cause and after that the Defendant do amend his Plea the Defendant shall pay the Plaintiff Costs yet the Court will not grant an Emparlance unto him although the cause be not entered in the Judges book for tryall if there
Jury doth give costs and dammages for all the things laid in the Declaration if the Plaintiff will release his costs and dammages for those things which were not found he may have Judgement for the other things which are found Mich. 1649. B. S. It is dangerous to take a Judgement acknowledged in the vacation as of a preceding Term and it ought to be made a Judgement of the subsequent Term. Mich. 1649. B. S. Yet it is common practice to do it If one be Out-lawed in an Action brought upon a Jugdment by a nihil dicit and that Out-lawry is reversed by a Writ of Error the Judgement is also to be reversed Mich. 1649. B. S. For it seems one may not be twice Out-lawed upon one Judgement which might be if the Judgement should not be reversed for the Plaintiff might bring a second Action upon the same Judgement and Out-law the Defendant again If one take a Judgement he cannot consent to vacate it Mich. 1649. B. r. But he may acknowledge satisfaction upon record If the Defendant in an ejectione firmae will not plead according to the rules of the Court Judgement ought to be entred against him by the ancient Rules of the Court without moving of the Court and the moving for it is grown in use but of late times and it is a new charge brought upon the Clyent to put him to this motion and there was no inconvenience in the old way and therefore this order is to be set up in the Office and to take effect the next Term and in the mean time the Clyents to have notice of it Hill 1649. 23. Jan. B. S. By Rolle Chiefe Justice A Judgement was reversed because it was given for more then was demanded in the Declaration Pasc 1650. 3. Maii. B. S. A Judgement was reversed for these errors because the time when the Judgement given was in figures 2. Because the sum recovered was expressed in figures 3. The venire facias was with an c. And 4. the cause of Action did not appear by the Record to be within the jurisdiction of the Court where the Judgment was given 1649. Hill B. S. This was a Judgment given in an inferior Court A Judgement was reversed because it was entred thus Ideo consideratum est ad eandem curiam whereas it ought to be per eandem curiam Hill 1649. 30. Jan. and 1. Feb. For it might be considered at the Court which is onely the place where the Court is held and yet not be the Act of the Court. After an Issue is joyned to be tryed by the Plaintiff and the Defendant the Plaintiff may if he will without going to tryal accept of a Judgement from the Defendant without any Verdict in the Case Pasc 1650. B. S. 24. Maii. For the Defendant is not prejudiced by it if he will acknowledge the Judgement and the Plaintiff could have recovered no more if he had had a Verdict and may waive his costs if he please If a thing be entred in a Judgement which is not mentioned in the Plaintiffs Declaration upon which the Judgement is given the Judgement is not good Pasc 1650. B. S. Judgement was given against one of not sane memorie and held good for by Rolle Chief Justice the Defendant may bring a Writ of Error to reverse the Judgement and Assigne this for error This was in the Case of Disne and Grigson Trin. 1650. B. S. 26. Junii A Judgement ought not to be entred untill the costs be taxed and the Judgement Signed by the Secondary of the Office 2. Julii 1650. Trin. B. S. A Rule of Court was made upon a motion at the Bar that the Secondary should enter a Judgement in a Cause wherein a Tryall was to be had as a Judgement of the Term next preceeding the Term wherein the Tryal was to be and that the Secondary should express in the Rule that the Rule was made by the consent of the Plaintiff and of the Defendant in the Cause 2. July 1650. B. S. For consensus tollit errorem and otherwise the Court would not have made such a Rule This Court will not admit the principal in an obligation to suffer a Judgement for his suerties that are bound with him in an obligation but the Court of Common Pleas doth usually admit it 12. Nov. 1650. B. S. By Rolle Chief Justice But now they have altred that course in the Common Pleas as it is said and in truth it was not reasonable for though a man may be contented to be a Suerty in an obligation for another yet it followes not that he would be contented to be liable to a Judgement for him whereby his goods may be swept away by an Execution before he is aware of it The course for one to acknowledge a Judgement is for him that doth acknowledge it to give a general Warrant of Atturney for any Atturney or some particular Atturney of that Court where the Judgement is to be acknowledged to appear for him at his suite who is to have the Judgement acknowledged unto him and to receive a Declaration from him and to plead Non sum informatus and thereupon Judgement is entred for want of a Plea 14. Nov. 1650. B. S. A Judgement upon a nihil dicit is not a perfect Judgement untill the Writ of Enquiry of dammages taken out upon this Judgement be executed 16. Nov. 1650 B. S. For the dammages are to be exexpressed in the Judgement which cannot be known what they are untill the Jury Empanelled by the Sheriff to enquire of the dammages have found them When a Plea is pleaded if the Atturney on the other side will not set his hand unto it as he ought and joyn in the Issue Judgement may be entred against him by the Defendants Atturney 6. Feb. 1650. B. S. Q. If a Judgement in an ejectione firmae be quod recuperare debeat and a Writ of Error be brought to reverse this Judgement this Writ of Error is not well brought but must abate for here is no Judgement given for the present for then it should be recuperet in the present Tence Trin. 1651. B S. By Rolle Chief Justice a Judgement ought not to be entred for want of a Councellors hand set unto a special Plea as by the Rules of the Court there ought to be without first acquainting of the Secondary of the intention to enter Judgement for such a Plea without a Councellors hand is a Plea and it may be there needeth not a special Plea and the party must not be his own Judge whether it be good or no. B. S By Rolle Chief Justice in an Action of Trespass brought quere vi armis a Capiatur ought to be entred upon the Judgement where the Judgement is given before the Act of Oblivion was made but if Judgement be to be given in an Action brought for a Trespass done since the Act of Oblivion was made and which is pardoned by the Act pardonatur ought to be
afternoon upon the last day of the Terme and so they said the Common Pleas had done Trin. 1651. B. S. This was that the Attorneys might not defer their Clyents businesses to the last of the Terme as too usually some doe Jeofailes Q If an Issue be joyned upon a collateral point if there be no place alledged whence the Venue may come this is ayded by the Statute of Jeofailes but if the Issue be not joyned upon a collateral point and there is no place alledged from whence the Venue may come it is not helped by the Statute Mich. 22. Car. B. r. Interrogatory One who is by the rule of the Court to be examined upon Interrogatories ought to attend the Master of the Office who is to examin him within four dayes after the Interrogatories are put in for him to be examined upon Mich. 22. Car. B. r. Intendment and Intentions The Law doth not punish any one for the Intention to do ill if the Intention be not put in execution except it be in the case of Treason for there Intentions if they be clearly proved by circumstances shall be punished equally as if they had been put in execution Trin. 22. Car. B. r. But this is only in high treason and is done in terrorem to deter men from that odious offence and of so high a nature being not acted against the Person of one sole person but even against the whole Kingdom which would suffer by it There shall not be Intended to be more then one Parish in a City although there be many except the contrary be shewed Trin 24. Car. B. r. For it is not of the essence or constitution of a City to consist of more Parishes then one but there may be a City that hath but one Parish in it as the City of Rochester in Kent If one be bound in an Obligation to J. S. in a certain summe of money and in the solvendum of the Bond it is not expressed unto whom the money shall be paid the Law will intend it is to be paid to the Obligee Pasc 24. Car. B. r. Because no other person is particularly named unto whom the payment should be made for it shall be intended the money was to be paid to some body and there being no person particularized to whom it should be paid it is but reasonable it should be paid to the Obligee A Court which is pleaded generally to be held secundum consuetudinem shall be intended to be held according to the Common Law but if it be pleaded to be held according to a Custome whereof the memory of man is not to the contrary it shall be adjudged to be a Court held by Custome Trin. 24. Car. B. r. For a Custome must be so particularly pleaded If the Plaintiff do plead that the Defendant did become bound unto him per Obligationem suam it shall be intended that this Obligation was sealed and delivered unto the Plaintiff Mich. 24. Car B. r. For else he did not become bound unto him by his Obligation for an Obligation that is not sealed and delivered is no Obligatien nor is the Obligee bound by it The Intent of the parties shall not be implied against the direct Rules of the Law 5. Feb. Hill 1649. B. r. For an Intent is but to be guessed at and doth not certainly appear but the Law is direct and plain and therefore it shall not be presumed the parties did mean to do any thing against Law where their intent doth not appear by express words Impossibility A thing which is Impossible in the Law is all one with a thing which is Impossible in nature 21. Car. B. r. For the Common Law is not contradictory in any thing to the Law of nature but agrees with it in all things and may be said to be the same in effect with it Impropriation An Impropriatinn cannot be made but by the Licence of the King Mich. 1649. B. Sup. And he may do it as he hath the supreme authority in all Ecclesiastical as well as civil matters within his dominions Livery and Seisin A Corporation cannot make Livery and Seisin to pass away the Freehold Lands belonging to the Corporation but they must make a Letter of Attorney to another under their Common Seal to make Livery and Seisin Mich. 23. Car. B. r. For Livery and Seisin must be made by one and not by a multitude If a Tenant for years of Land do consent that Livery and Seisin shall be made of the Land let unto him unto him that hath purchased the reversion of those Lands and it be made accordingly this is a good Livery and Seisin to make the reversion pass although that the Tenant for years do not go off from the Land at the time when the Livery and Seisin was made but was then in actual possession of it Mich. 23. Car. B. r. For his Term is not prejudiced by the Livery For only the reversion passeth and his Assent amounts but to an Attornment to him to whom the Livery is made If a Deed of Feofment be made of Land Habendum à die datus and the next day after the date of the Deed the Feoffee gives Livery and Seisin of this Land this is a good Livery and Seisin but if this Livery and Seisin were made by an Attorney Q. Quid operatur Mich. 23. Car. B. r. One may give Authority by Paroll unto another to take Livery and Seisin of Lands for him and if such Livery and Seisin be taken accordingly it is good By Rolle Chief Justice Mich. 1650. B. S. For this shews his assent to take the Lands by the Livery and Seisin and the other is but as a Conduit-pipe to convey the Land unto him Lease Lessor and Lessee If one take a Lease by Indenture for years of a ruinous house or that wanteth Reparations and do covenant in the Lease to leave the house at the end of the term in good repair heis bound to do it and an Action of Covenant doth lie for the Lessor against him if he do it 21. Car. B. r. But if he had not covenanted expresly to do it he had not been bound by Law to do it A Lease which is only voidable and not absolutely void must be made void by the Lessors re-entry but if a Lease be absolutely void there needeth no re-entry 21. Car. B. r. That is said voidable which may be made void if the Lessor will and may be continued if he please at his election it is made void by re-entry and putting out the Lessee or else it is continued by receiving the rent and thereby acknowledging him still for his Tenant Where the Freehold of Lands in question in an Action of Trespass and Ejectment is entire although these Lands be let out to several persons for years by several Leases if he whose title is concerned and doth intend to try the Title of these Lands do seal a Lease of Ejectment upon the Lands only that are
the Court of Admiralty do draw the matter ad aliud examen that is to try it by the Civil Law Trin. 23. Car. B. r. And therefore this Court will use their Authority at any time to stay their proceedings in the Admiralty although the Defendant have by his incautelous pleading allowed their Jurisdiction It is not necessary for him that Libels in the Court of Admiralty to shew in his Libel that the Common Law bath no Jurisdiction of the matter for which he Libels but he that prayes a Prohibition to the Admiralty in this Court must suggest something wherein in respect of the Cause depending there and for which he prayes the Prohibition that Court hath no Jurisdiction of the Cause Hill 23. Car. B. r. For the Admiralty cannot determine whether the Common Law have Jurisdiction or not and therefore it would be a vain allegation but this Court can judge of the Jurisdiction of the Courts of Common Law and can determine whether other Courts do intrence upon their Jurisdictions or not If the Court of Admirality do hold plea of any matter which is not maritime although the thing were done upon the Sea yet this Court will grant a Prohibition to stop their proceedings Hill 23. Car. B. r. For the Court of Admiralty hath only Jurisdiction in maritime Causes viz. such as only concern sea-affairs and not of all matters done at Sea as Contracts c. the Tryal whereof belongs to the Common Law This Court will grant a Prohibition to the Admiralty if there be cause for it although that a consultation have been granted in the Court of Common Pleas in the same cause Hill 23. Car. B. r. This Court ought not to deny the party a Prohibition that doth pray it if there appear cause for a Prohibition for it is not a thing arbitrary or ex gratia curiae to grant it or not to grant it Hill 23. Car. B. r. For to deny it were to deny Justice to the party in denying him the benefit of the Common Law which is every free-born English mans birth-right A Prohibition may be granted to the Spiritual Court after a sentence given in the Cause in that Court for which the Prohibition is prayed if there be cause but the Court will not do it untill they have heard Councell speak on both parts to inform their consciences although before a sentence they use to grant it upon a bare suggestion of the party Tuesday 2. July 1650. B. S. and Pasc 1652. B. S. For a sentence in an Ecclesiastical Court is in the nature of a Judgement given at the Common Law and presumed to be given upon mature deliberation and therefore this Court will not but by good advice make a sentence there given void or hinder the execution of it A Prohibition doth not lie to the Court of Admiralty in the cases of Felony yet if there be cause this Court will grant a Certiorari to remove the Cause hither By Rolle Chief Justice in Dothicks Case 29 Oct. 1650. B. S. Q. Tamen quia curia advisare vult Pleas and Pleadings If an Action be grounded upon a Statute there the Statute must be precisely set forth in pleading but if a Statute recited be but an inducement to the action there it is not necessary to recite the Statute precisely Hill 21. Car. B. r. For if the Statute be not precisely recited the Defendant cannot tell how to plead to the Statute As a plea in bar may go per partes so may in like manner a plea pleaded in abatement of a Writ Hil. 21. Car. B. r. A Plea is then said to go per partes as I conceive when one part of it goes to one part of the Declaration and another part of the Plea answers another part of the Declaration One that appears in Court upon a Habeas Corpus ought to plead the same Term wherein he comes in Hill 21. Car. B. r. If the Defendant do not plead according to the Rules of the Court so that the Plaintiff may enter Judgement upon a Nihil dicit yet if after the Rules are out the Defendant do put in his Plea into the Office before the Plaintiff hath entred his Judgement this Plea is to be accepted and the Plaintiff ought not then to enter his Judgement and therefore it behoves Attorneys to be vigilant in their practice 21. Car. B. r. and 23. Car. Hill For a Judgement upon a Nihil dicit is for want of a Plea but in this Case here is a Plea and if such a Judgement should be entred it would be in facto an irregular Judgement If the Defendant in an Ejectione firmae do not plead in time according to the Rules of the Court the Plaintiff may after the Rules for pleading be out move the Court to set a short day for him to plead which will be granted if the Land lie neer at hand and if the Defendant do not plead at the time set by the Court the Plaintiff may enter Judgement upon a Nihil dicit 21. Car. B. r. But now such motions are not usual for Judgement may be entred of course A forraign Plea is to be put in upon Oath of the Defendant that is he must swear his Plea is true or else such a Plea is not to be received Mich. 22. Car. B. r. Mich. 24. Car. B. r. A forraign Plea is when the Defendant doth plead such matter that if it be true the cause cannot be tried in this Court and in regard that thereby the Defendant doth endeavour to hinder the proceedings of this Court and to delay the Plaintiff therefore the Court will make him swear his Plea to be true that the Court may not be deluded nor the Plaintiff trifled with by a false Plea and if he will not swear his Plea to be true the Plaintiff may enter Judgement for want of a Plea Trin. 1650. B. S. If an Action of Debt be brought upon an erroneous Judgement the Defendant may plead Null tyel Record that is that there is no such Record as he frames his Action upon Mich. 22. Car. B. r. For that which is erroneous is accompted in Law as null and void If the Defendant do plead a dilatory Plea the Court at the Plaintiffs motion will order him to plead such a Plea as he will stand to Mich. 22. Car. B. r. For the Law favours not delayes whatsoever is vainly babled by the ignorant to the contrary And if he be ordered to put in a Plea to which he will stand and he do it accordingly if such his Plea be not good the Court will not permit him to amend it but the Plaintiff shall take advantage of it by demurring upon it or otherwise as he shall be advised In any Action wherein the Plaintiff in case he recover shall only recover Dammages the Defendant may plead in Barre to this Action an arbitrement with satisfaction thereupon made unto the Plaintiff Mich. 22. Car. B. r. For if the Plaintiff have
for want of a Plea Hill 1650. B. S. 5. Feb. But if it be a special Plea there must he a Counsellors hand set unto it If one be sued by original Writ he must Plead the same Term in which the original is returned Hill 1650. B. S. 6. Feb. If one be compelled to alleadge double matter in his Plea yet if he do insist but upon one of them the Plea is not double Trin. 1651. B. S. For upon that matter onely upon which it is insisted upon shall issue be joyned If the Plaintiffs Atturney will consent unto it the Defendant may waive his Plea without moving the Court. By Rolle Chief Justice Trin. 1651. B. r. But if he will not consent it cannot be done without moving the Court. A special Plea is a Plea although it have not a Counsellors hand set to it and therefore Judgement cannot be entred for want of a Plea although a Councellors hand be not to it without acquainting the Secondary of the Office and obtaining his leave to do it for it may be there was no cause for a special Plea and the Plaintiff must not be his own Judge Mich. 1651. B. S. Per Rolle Chief Justice The Prayer of the priviledge of the Court is not properly a Plea for it was anciently demanded by Writ although it be now usually allowed upon the Prayer of the party who claimes it By Latch Apprentice in the Law If a Declaration be delivered to the Defendants Atturney or put into the Office after the Essoigne day of the Term the Defendant cannot be compelled to Plead that Term but he may Emparle till the next Term. 1652. B. S. For the Term was begun when the Declaration was delivered and so it cannot be accounted a Declaration of the proceeding Term. Pardon He that will take the benefit of a general Pardon ought to plead the Statute by which the general Pardon was granted 21. Car. B. r. 8. Ed. 4. 7. 4. H. 7. 8. That the Court may judge whether his offence be Pardoned or not One that is found guilty of man-slaughter must sue out his Pardon or else his burning in the hand cannot be dispensed withall for man-slaughter is Felony 23. Car. B. r. Penalty This Court will not give the Penalty of an Obligation to the Obligee which was onely made to perform the Covenants of an Indenture 21. Car. B. r. Because the party may recover upon the Covenants of the Indenture whatsoever he can be damnisied by the breach of them and the Bond was given for no other intent but to tye the Obligee to perform the Covenants or to satisfie for the breach of them and not that the Obligee should take advantage of the penalty of the bond which it may be is a great sum for the breach of a Covenant whereby the Obligee is very little damnified Perjury A false Oath taken before a person that hath not authority by Law to give the party his Oath in that cause wherein he is deposed is not Perjury 21. Car. B. r. For the Oath is Coram non judice An Endictment for Perjury may be preferred against one for taking a false Oath rashly and for want of consideration although the party that took the Oath did not do it maliciously and he may be convicted thereupon but the fine ought to be more moderate where the Perjury is committed out of rashness onely then where it is committed maliciously Trin. 24. Car. B. r. For though the Law doth not tollerate offences though they be committed out of infirmity yet they have regard to the weaknest of man and will not therfore punish them so severely as offences committed upon premeditated malice to the party against whom they are committed Process and Proceedings in Law All legal Proceedings ought to take commencement by original Writ or by Endictment or by information 21. Car. B. r. Or by Latitat which is the original Process of this Court and is in the nature of an original although it doth suppose a former Writ in the case for which it is issued forth If a Cepi Corpus be returned in one Term the Defendant ought to Plead the next Term after the return so that the Plaintiff may go a tryal the same Term and so it is if the Defendant be brought into Court by a Habeas Corpus or an alias or pluries Habeas Corpus Mich. 22. Car. B. r. After the Plaintiff is non-suit he must begin his Action again and cannot proceed upon his old Declaration Mich. 22. Car. B. r. For by the non suit the cause as to that Action is determined and the parties have no day in Court After a Verdict there ought not to a repleader but the Plea is discontinued Mich. 22. Car. B. r. Where the Defendant brings a Writ of Error to reverse a Judgement given against him and hath a Supersedeas to stay Execution upon the Judgement directed to the Sheriff of that County where the Execution is to be done and yet he is taken by the Sheriff by vertue of an Execution taken out upon this Judgement upon moving of the Court they will grant him a Writ of Supersedeas to Supersede this Execution quia emanavit erronice Mich 22. Car. B. r. For such Execution ought not by Law to have issued out much less to have been executed A Latitat is called a Bill of Midlesex Mich. 22. Car. B. r. But not all Latitats but onely such as are directed to the Sheriffs of Midlesex as I conceive Where the Defendant did tender unto the Plaintiff the moneys for which the Action is afterwards brought against him before the Action was brought and the Plaintiff refuseth them and will notwithing sue the Defendant for them upon a motion and making this appear to the Court the Court will order the money to be brought into the Court and will stay the Plaintiffs Proceedings Trin. 23. Car. B. r. For the Court will not countenance any one to sue another who may have right done to him without suit for this were to encourage men to be vexatious The continuances of Processes in inferior Courts ought to set forth the manner of the continuances and not to express them generally Trin. 24. Car. B. r. The Proceedings in inferior Courts are not so regular and formal as the Proceedings are in the Courts at Westminster but are entred only in short notes Pasc 24. Car. B. r. Pasc 1648. B. S. If one be arrested by Process of this Court and be thereupon in Custody and the Plaintiff do not declare against him in three Terms after the Defendant is by the rules of the Court to go out upon common Bail Trin. 24. Car. B. r. For the Court will presume the cause of Action is not very great because it is so long before he declares and they will not compell him to put in special Bail but where it appears the cause requires it The continuances in the Process of this Court are not entred untill the Judgement given in the
speaking the same scandalous words for the words of one are not the words of the other but they must be severally spoken and consequenly several Actions ought to be brought against them but a Joynt Endictment doth lie in such a Case 27. Jan. 1650. B. S. So ruled by the Court. One may joyn two Debts due upon two several Obligations in one Action and so it is of other personal Actions but it cannot be done in real Actions 6. Feb. 1650. B. Sup. If a Carriers servant or his son conspire to rob the Carrier and do rob him the Carrier not being privy to the conspiracy an Action will lie for the Carrier against the Hundred where he was robbed upon the Statute of Winchester but this matter may be urged to the Jury upon the tryal in mitigation of dammages by Rolle Chief Justice Amendment Original Writs are not amendable at the Common Law for if the Writ be not good the party may have another Hill 22. Car. B. r. The leaving out of the Atturneys name in the Imparlance Roll is Amendable upon a motion made to the Court to have leave to do it but not without leave of the Court so that the Atturnys name be not left out in the Issue Roll for then it is not Amendable Hill 21. Car. B. r. If in a Replevin the Avowant do amend his Avowry before the Term and do pay costs the Plaintiff ought to reply the next Term following but if he pay not costs he is not bound to reply the next Term. 21. Car. B. r. Any fault in pleading which would be Amendable if the cause were depending in an inferior Court may be amended where the cause depends in a superior Court but not è contra 21. Car. B. r. Where two several persons joyn in one Declaration and one of them dye depending the Sute the Declaration cannot be Amended but the other party that survives must have a new Writ for there is great difference betwixt a Joynt Action and a several Trin. 22. Car. B. r. A Plea may be amended upon giving of notice thereof to the other party and paying of costs if the Plea be only entered in Paper but if it be entred in Parchment it cannot be amended for then it is a Plea upon Record Mich. 22. Car. B. r. The Court of the Kings Bench will not Amend a Transcript of a Record removed thither by a Writ of Error out of an inferior Court but they will Amend a Record removed thither out of the Common Pleas if they see cause Mich. 22. Car. B. r. If the Plaintiff desire to alter his Declaration it is in election of the Defendant to take costs of the Plaintiff and to let him amend his Declaration or to refuse to take his costs and to Imparle to the next Term. 22 Bar. B. r. and 1650. B. S. A Return upon a Habeas Corpus or upon a Certiorari to remove Orders of Sessions of the Peace c. cannot be Amended the Term after the Return is made but it may be Amended the same Term in which it is made Hill 23. Car. B. r. The Clerk of the Peace may Amend an Endictment removed into this Court at any time during the Term in which it came in here but afterwards it cannot be Amended Hill 23. Car. B. r. The Plaintiff may Amend his Declaration though it be seven years past since he Declared if it be but in Paper Hill 23. Car. B. r. If the Plea Roll be rightly entred though the Postea be mistaken in the transcribing of it yet the Postea may be amended Paso 24. Car. B. r. A Declaration grounded upon an Original Writ if it be erroneous cannot be amended but if it be upon a Latitat or Bill of Middlesex it may be amended Pasc 24. Car. B. r. If a Transcript of a Record removed out of the Common Pleas into this Court be to be Amended here the Clerk in the Common Pleas is to bring in the Original Record out of the Common Pleas into this Court that the Transcript may be here Amended by the Record it self Trin. 24. Car. B. r. The Clerk of the Assizes may Amend the Postea by his Notes if he be mistaken after that he hath returned it into this Court Trin. 24. Car. B. r. An Indictment removed into this Court may be amended the same Term it came in but not afterwards but upon some extraordinary matter Pasc 24. Car. B. r. After the parties have joyned in Demurrer the Demurrer may be Amended if it be but in Paper Pasc 24. Car. B. r. A Postea may be Amended by the Record in such things whereby the Amendment may not bring the Jury within the Compass of an Attaint Trin. 24. Car. B. r. A Record may be Amended in a small matter after Issue joyned so that thereby the Plea be not altred Trin. 24. Car. B. r. A Record may not be altred by the consent of the Atturneys on both sides without a Rule of the Court and if it be if the party grieved thereby will inform the Court of it the Court will order to make the Record as it was before the Amendment and will punish the Atturneys 3 July 1650. B. S. If the Plaintiff Amend his Declaration though it be by Rule of the Court yet the Defendant may plead do nove The Imparlance Roll cannot be Amended by the Plea Roll but the Plea Roll may be Amended by the Imparlance Roll Mich. 22. Car. B. r. The Court Amends false Latine forme in Bills presented unto them by the grand Enquests by their consents but they may not alter matters of substance in them Mich. 22. Car. B. r. The Plaintiff may Amend his Declaration after the Defendant hath pleaded to it paying costs if it be not entred but if he do Amend it the Defendant may also after his Plea if he will Mich. 22. Car. B. r. And Issue entred upon Record may upon leave by the Court be Amended in a small matter but not in a material thing or in that which will deface the Record Hill 22 Car. B. r. An Original Writ cannot be Amended because the party may take out another Writ Hill 22. Car. B. r. A thing that is Amendable by Statute may be Amended in an upper Court before it be Amended in the inferior Court if the matter be apparent and needs no examination Hill 22. Car. B. r. An Error in the Postea may be Amended but not in the Plea Roll Hill 23. Car. B. r. A Plea cannot be Amended after the Plea is Demurred unto not after Issue joyned Mich. 24. Car. B. r. yet if the Demurrer be but in Paper though it be two or three Terms after the Plea was Demurred unto the Demurrer may be Amended if the party Demurring will pay costs though the other party have joyned in Demurrer 21. Nov. 1650. B. S. A Return of a Habeus Corpus may be Amended in matter of form onely the same Term the Return was made but not
there Mich. 1649. B. Sup. And it hath been often done Apparance If one do give an Atturney Warrant to appear for him and shall afterwards repeal this Warrant on purpose to delay his Appearance the Court will notwithstanding the repealing of his Warrant compel his Atturney to appear for him in such a manner as by the Rules of the Court he ought to have appeared if his Warrant had not been repealed Trin. 22. Car. B. r. In all Cases where Process may Issue forth to take the persons body there every such person may appear in Court in his proper person Hill 22. Car. B. r. Though one do appear in Court upon the Return of a Writ Issued forth against him yet he doth not admit the Writ to be good by such his Appearance for he cannot have Oyer of the Writ untill the party hath declared against him Hill 22. Car. B. r. For he is Arrested upon a Warrant made by the Sheriff upon receit of the Writ and doth not see the Writ The Principal cannot give a Warrant of Atturney to an Atturney to appear for his Suerty Pasc 23. Can. B. r. If an Atturney do promise to appear for his Clyont and yet afterwards refuseth to appear according to his promise the Court will compel him to appear for him although he say he had no Warrant to appean Hill 22. Car. B. r. And if he will not appear upon the Rule of the Court an Attatchment lies against him for his contempt to the Court. â—asc 23 Car. B. r. Mich. 24. Car. B. r. If there be divers Defendants put in one Declaration an Atturney is not bound by the Rules of the Court to appear for more of them then such as from whom he hath Warrant to appear Pasc 24. Car. B. r. If the Desendants Atturney do receive a Declaration against his Clyent from the Plaintiffs Atturney this is an Appearance for him 11. Nov. 1650. B. S. 24. Maii Pasc 1650. B. S. In the Court of Common Pleas upon a Capias issued forth in an ejectione firmae the Defendant is by the Rules of that Court to appear and plead in one and the same Term but it is not so in the Kings Bench for there he hath liberty to imparle to the next Term. Trin. 24. Car. B. r. An Infant ought to appear by his Guardian and not by an Atturney for he cannot make an Atturney but the Court may Assign him a Guardian with his consent Pasc 24. Car. B. r. Trin. 1650. If one appear in this Court but doth not put in Bail this is accounted to be no Appearance for it is the putting in of Bail that Attacheth the Cause in Court yet in the Common Pleas it is held a good Appearance before Bail be put in 7. Maii. 1650. B. Sup. If an Atturney promise to appear for his Clyent the Court will compell him to put in Bail for him If one appear by a name which is not in truth his right name and thereupon the Plaintiff declares against him by that name he shall be Estopped afterwards to say that he is not right named 29. Oct. 1650 B S. If the Atturney do appear for his Clyent but de bene esse that is if his Clyent shall like and approve of it he may send back the Declaration delivered him upon this Appearance and is not bound to plead unto it 14. Nov. 1650. B. S. Two Nichils returned upon a Scire Facias do amount to an Appearance upon which the party may proceed 19. Ap. 1650. B. Sup. Affidavit An Affidavit made before a Master of the Chancery is of no force nor ought to be read in this Court nor will the Court make any Rule upon such an Affidavit Trin. 22. Car. B. r. Pasc 24. Car. B. r. An Affidavit ought onely to set forth the matter which the party intends to prove by his Affidavit and not to declare the merits of his Cause 22. Car. B. r. An Affidavit touching the tryal of the cause ought to be made before one of the Judges of that Court in which the Cause is depending and also in Term time yet by special Rule of the Court it may be made in the vacation Mich. 22. Car. B. r. An Affidavit made against a Verdict is not to be admitted Pasc 23. Car. B. S. Memorandum Rolle Chief Justice commanded the Secondary to enter a Rule in the Office that the party who doth intend to move upon an Affidavit do give the adverse party a Copy of the Affidavit upon which he intends to move that he may be prepared to answer the matter contained in the Affidavit when the motion is made and need not to have longer time to answer it Micls 1650. B. S. When an Affidavit hath been read in Court it ought to be filed that the other party may see it and take a copy of it if he please By Rolle Chief Justice Pasc 1655. Addition One may have one Addition at one day and in one place and yet may have another different Addition at another day and in another place Mich. 22. Car. B. r. The Title of Knight or Baronet is part of the parties name and it is material to be rightly used in pleading but the titles of Gentleman or Yeoman are additions ad placitum to be used or not used Mich. 24. Car. B. r. But the Title of an Earle of Ireland is not an Addition ad placitum Mich. 1649. B. S. Award An Award that is made that one of the parties who submitted themselves to the Award shall pay money in the house of a stranger is not good for this is to Award him to do a thing which will make him a Trespasser and so liable to an Action which is unreasonable Mich. 22. Car. B. r. But if the Award be to pay the money in the house of one of the parties that submitted to the Award such an Award is good for it implies a licence from the party for him to pay it there 10 Feb. 1650. An Award to pay money at the house of a stranger may be a good Award for he may come to the house in many cases and be no Trespasser but if he cannot come to the strangers house without being a Trespasser to him there such an Award is not good as I conceive Mich. 22. Car. B. r. A conditional Award is not good because it is not final to determine the matters in difference submitted to the Arbitration as Awards ought to be Mich. 22. Car. B. r. If all the matters submitted to the Arbitrators be not Awarded upon the Award is not good Pasc 23. Car. B. r. An uncertain and doubtful award is not good because it makes not an end of all the matters submitted unto by both parties but leaves them at large to sue and trouble each other as they were before the award made Trin. 23. Car. B. r. An Award may be void in some part and yet good in another part viz. if the
award do make an end of all the differences submitted unto the Arbitrators by the parties Trin. 23. Car. B. r. Mich. 24. Car. B. r. An Award ought to be final and certain else it is not good Mich. 23. Car. B. r. If each party submitting to the Award hath power by the Award to compell the other party either by Law or equity to perform the Award the Award is good although the party be thereby put to his Action Mich. 24. Car. B. r. An Award that a thing shall be done to a stranger is a good Award if it appear that the parties who submitted to the Award have benefit by the doing of it Pasc 1650 B. S. 4. Junii If an Award be good in any part of it to all the parties that did submit to it if the Award be broken in that part an Action will lie for that breach Pasc 1650 B. S. 4. Maii. An Arbitrator cannot delegate or transfer the power given him by the parties that submitted to the Arbitration for it is contrary to the submission but an Arbitrator may refer a Ministeral act touching the Arbitration to another Trin. 1650. B. S. 15. Junii The Court will not suppose any thing to be Awarded in an Award which is not submitted unto except the Contrary be made to appear 10. Feb. 1650. B. S. Affirmance It is not proper to move to have a Judgement affirmed after a Writ of Error bought to Reverse it before the Errors be Assigned but one may move for Execution upon the Judgement 22. Car. B. r. Agreement A forced Agreement of the party is accounted to be no Argeement and therefore the Court will not compell him that did thus agree to a thing to perform his agreement 22. Car. B. r. An agreement which is made between the parties onely by Paroll may be discharged and made void at any time before it is broken by Parol without satisfaction but after it is broken it cannot be discharged without satisfaction of it 22. Car. B. r. If an Agreement made by Parol to do any thing be afterwards reduced into writing the Parol agreement is thereby discharged and if an Action be to be brought for the non performance of this agreement it must be brought upon the agreement reduced into writting and not upon the Parol agreement Pasc 23. Car. B. r. The Plaintiff and Defendant may by agreement between them give mony to the Jury before they pass upon the tryal to defray their charges where the tryal is put off and thereby they are forced to stay longer in Town then they expected Mich. 1649. B. S. Agreement By Rolle Chief Justice If the Plaintiffs Atturnoy and the Defendants Atturney do agree to things in order to the proceedings in their Clyents cause though the Clyents do afterwards refuse to consent to their agreement yet the Court will compell the Atturneys to perform the agreement Atturnment An Atturnment made unto Cestuy que use is a good Atturnment in Law to the Feffee of the Land if the Tenant of the land have notice of the use when he did Atturn Tenant to Cestuy que use Mich. 22. Car. B. r. An Atturnment made after Sun-set is not a good Atturnment for an Atturnment is a solmne act and ought to be done so that notice may be taken of it which shall not be presumed to be in the night Mich. 23. Car. B. r. Assumpsit or Promise A promise that is made upon a sufficient consideration is as if it were made upon a precedent condition Mich. 22. Car. B. r. An Assumpsit or promise to do a thing upon consideration that he to whom he made the promise shall surrender an indenture to him is a good consideration to ground an Action upon for breach of this promise although he to whom the Indenture is surrendred do take no estate by this surrender Mich. 23. Car. B. r. If one upon a good consideration do assume or promise to do a thing he that promised to do it shall have a reasonable time allowed to him for the doing of it and shall not have liberty to do it at any time during his life Hill 22. Car. B. r. Where an Assumpsit or promise is the very ground of the Action brought there it must be pleaded precisely but where it is but the inducement to the bringing of the Action there it is not necessary to set forth the promise precisely in the pleading Pasc 23. Car. B. r. Every contract made betwixt parties doth in Law imply a promise that they will perform the contract Hill 1649. B. S. 4. Feb. He for whose benefit a promise is made may have an Action for the breach of this promise although the promise was not made to him Pasc 23. Car. B. r. The consideration to stay his proceedings in a Suit in Law is a good consideration to ground an Assumpsit Trin. 23. Car. B. r. viz. for ever or for a certain time But if he promise to stay Paululum tempus it is not good If one part of the consideration upon which a promise is made to do a thing be against the Law and so void yet if another part of the consideration be good and lawful the consideration is good to ground an Assumpsit upon for the consideration may be divided and if any part of it be good it is sufficient to make the promise good Mich. 23. Car. B. r. An Assumpsit grounded upon a consideration which was past before the promise made is a good Assumpsit if it be alledged to be made at the instance or request of the Defendant Psac 24. Car. B. r. After a promise is broken the party that made this promise cannot be discharged of this promise by Parol but where the promise is executory the may Pasc 24. Car. B. r. Where one becomes legally indebted to another the Law creates a promise that he will pay this debt and if he do not pay it there is a sufficient ground for the party to whom he is indebted to bring his Action of Indebitatus Assumpsit against him to recover this Debt Trin. 24. Car. B. r. If the day of an Assumpsit made be pleaded in figures and not in words at length it is erroneous Pasc 24. Car. B. r. If an Action be brought upon an Assumpsit and upon proof it doth appear that the agreement was more or that it was less in substance then the Plaintiff hath declared upon he hath failed in laying of his Action otherwise it is if some circumstance only be omitted Mich. 24. Car. B. r. In an Action brought upon a promise it is usual to ground the Action upon one promise in the substance of it but to lay the promise divers wayes and by different words in the Declaration to the intent that upon the tryal the Plaintiff may rest or rely upon that way of laying it that his witnesses are best able to prove Mich. 24. Car. B. r. If one be indebted to another and do promise to pay
this debt at a day to come the party to whom he made this promise cannot bring his Action for the Debt untill the day be passed upon which he promised to pay it By Rolle Chief Justice and by German Justice for he said that the promise is a suspention of the Debt pro tempore 29. Jan. 1650. B. S. If one promise unto a woman that in consideration that she will marry with him he will intermarry with her this is a mutual promise and an Action lies by either party against the other for breach of it 18. Ap. 1650. B. S. Appeal In a Writ of Appeal all the pleadings ought to be in French Mich. 22. Car. B. r. This is since altred by the late Statute that Enacts all proceedings in Law to be in English If in an Appeal the Defendant plead in abatement of the Writ and the Writ be adjudged good it is peremptory and he shall not be permitted to answer over but shall be condemned upon the Writ Mich. 22. Car. B. r. In an Appeal the Appellant ought to appear in Court in person yet upon a motion to the Court the Court may admit him to prosecute his Suite by his Atturney Mich. 22. Car. B. r. The defect in any Process in an Appeal doth discontinue all the Appeal and makes an end of the Action as well as a defect in the Original Writ Hill 22. Car. B. r. Age. If the question be whether the party be of full Age or within Age it shall be tryed by the Court by inspection of the party and not by a Jury Hill 22. Car. B. r. Advantage It is not good practice to take an advantage against the Defendant to obtain a tryal the sooner against him for it causeth clamor from the party and makes him oftentimes press the Court for a new tryal Hill 22. Car. B. r. He that will in pleading take advantage of a particular Statute must shew particularly that he is comprised within the Statute Pasc 23. Car. B. r. Assize An Assize is to be Arraigned in French and first the Defendants Councel doth pray the Court that the Tenant may be called which the Court grants and thereupon he is called by the Cryer of the Court and if upon his calling he do appear then the Tenants Councel do demand Oyer of the Writ of Assize and the Return of it which is granted and thereupon he prayes leave of the Court that he may Imparle which is granted to a short day after and the Jury is adjourned by the Court to appear at that day Hill 22. Car. B. r. Note that the Jurors that are to trye the Assize are called Recognitors of the Assize At the day granted to the Tenant to Imparle unto the Tenant is called and upon his appearance he pleads to the Assize in Latin and upon this an Issue is joyned between the parties and after the Jury or Recognitors of the Assize are examined upon oath upon a voire dire whether they had the view of the land in question and if they say they have had then are they sworn to try the Issue and the Councel do proceed to give them their evidence Pasc 23. Car. B. r. Arraignment If in an Appeal brought the Writ be abated the Defendant cannot be Arraigned upon the count which is grounded upon this Writ Pasc 23. Car. B. r. One Awbry that had been formerly Indicted for upon the Statute for having two Wives and was Out-lawed upon this Indictment was brought to the Bar and Arraigned to this effect First the secondary on the criminal side spake thus Awbry hold up thy hand which the prisoner did then he proceeded thus Awbry thou hast been heretofore Indicted of Felony and thereupon Out-lawed in due course of Law for having of two Wives and hast been Arraigned thereupon what canst thou say for thy self why thou shouldest not have sentence of death pronounced against thee Prisoner I take this exception to the Indictment that it is not said to be found per sacramentum duodecim proborum legalium hominum and I desire I may have Twisden and Hales assigned for my Councel Court You shall have them Thereupon the Councel prayed that the prisoner might bring a Writ of Error to Reverse the Out-lawry Court Let him have it Attaint An Attaint doth lie against a Jury that do give their Verdict contrary to the evidence that is given unto them Pasc 23. Car. B. r. Audita Querela Where the Bail is detained in prison in Execution after the judgement which was given against the Principal is Reversed by a Writ of Error there the Bail may bring an Audita Querela to be discharged Pasc 23. Car. B. r. If one be taken in Execution and is afterwards set at liberty and then is taken again and detained in prison upon the same Execution he may bring his Audita Querela to be enlarged Mich. 24. Car. B. r. If a judgement given in another Court be removed into the Upper Bench Court by a Writ of Error and the party who had the judgement notwithstanding the removal of it by the Writ of Error do bring an Action of debt upon this Judgement in the Court where he obtained the Judgement as he may do if afterwards pending this Action of Debt the Judgement be Reversed by the Writ of Error the Defendant against whom the Judgement was obtained may bring his Audita Querela to be relieved against the Action of Debt brought upon the Judgement 3. Feb. 1650. B. S. One Tritton that was in Execution brought his Audita Querela and prayed he might be Bailed and it was granted and he was bailed by four persons 7. Feb. 1650. B. S. Authority Doctor Cowels book called the Interpreter is not a book of Authority to be urged for Law for it was condemned to be erroneous and scandalous by Parliament and by the authority thereof was publikly burned as erroneous and scandalous A verbal authority given by divers Plaintiffs in an Action of Trespas and Ejectment to deliver a Lease of Ejectment upon the Land though the Lease be signed and sealed by them off of the Land Let in the Lease is a good authority to execute this Lease So held in a tryal at the Bar between Vanlore and Crook Mich. 1649. 7. No. B S. Apurtenant and Apendant Yards Orchards and Guardens are Appurtenances to a Messuage but Lands cannot be said to be Appurtenant to a Messuage though they be used with the Messuage for the Messuage is a Messuage though the Lands be taken away Hill 23. Car. B. r. One Messuage cannot be Appurtenant to another Messuage for they are both entire things of themselves Pasc 24. Car. B. r. Account An Action of Account or an Action of Debt lies at the election of the Plaintiff against one for receiving mony of a third person for the use of the Plaintiff although he had no authority given him to receive it Hill 23. Car. B. r. The Statute of limitations of Actions doth not
bar the Plaintiff from bringing an Action of account although he do not bring the Action within the time limited by the Statute for before that Statute one that had once cause of Action might bring it at any time afterward without restriction of time and this Action is not mentioned in the Statute Trin. 1650. 20. Junii B. S. An Action of Account doth not lie for Rent alone due and arrear for the Rent demandable is certain but if Rent be behind and there are also other things mixed with it for which the Action is brought then an Action of Account may be brought for both of them together because it is incertain upon the whole matter what is due to the Plaintiff Trin. 1651 B. S. If one receive money due to me upon an Obligation or for Rent due to me I may either have an Action of Account against him as my receiver or an Action of Debt as owing me so much money as he hath received though in both cases he do receive the mony without my consent Trin. 1651. B. S. Auditor Many things are in charge with the Kings Auditors which are not in the Crown Pasc 24. Car. B. r. Auditors Assigned by the Court upon an Action of Account brought to receive the Account are proper Judges of the cause Trin. 24. Car. B. r. Argument Two that are of Councel on one side ought not to Argue for their Clyent both of them upon one and the same day except it be for concluding of all the Arguments which are intended to be made for that party Mich. 1649. B. S. By the custome of the Court. It is not the usual course of the Court for one Councellor to argue the same Case twice By Rolle Chief Justice 12. Nov. 1650. B. S. Aide and Aide Prayer A Tenant for life may pray in Aide of all such persons as are in remainder of estate in the lands for which he is impleaded 1649. 29 Julii B. S. Baron and Fem. AN Action of Debt doth lie against the Husband for goods that were delivered to his Wife if it may be intended that those goods did any wayes come to the use of the Husband Hill 21. Car. B. r. A Fem Covert cannot submit to an Award for the submission is a free Act of will and the will of a Fem Covert is subject to the will of her Husband and so is not free Mich. 22. Car. B. r. But another person may submit to an Award for a matter which concerns the Fem and such a submission is a good submission in Law A Feofment made to a Fem Covert is a good Feofment in Law to pass the Lands if the Husband do know of it untill the Husband do disagree to it for if he disagree from it the Feofment is not good but if he once agree to it he cannot afterwards disagree from it and if he once disagree he cannot afterwards agree to it Q. Hill 23. Car. B. r. A Fem Covert may take a thing though it be not by Deed. Hill 23. Car. B. r. viz. If her Husband consent to it If a Fem sole be indebted to I. S. and afterward the Fem doth marry this Debt is become by the marriage the Debt of the Husband and of the Wife viz. the proper Debt of the Wife and the Debt of the Husband in right of his Wife and the Wife must be sued for this Debt jointly with her Husband and if the Husband dye pending the Suite yet is not the Debt gone but she may be sued for it after the death of her Husband Pase 24. Car. Trin. 24. Car. B. r. Bar in Actions A Recovery in a personal Action is a Bar in all other personal Actions touching the same matter Hill 21. Car. B. r. That is to say it is a good Ploa in Bar to a personal Action brought against the Defendant to say that the Plaintiff did formerly bring an Action against him for the same matter and did recover against him and therefore he prayes the Judgement of the Court whether he shall be permitted to proceed in his second Action In an Action brought to recover a thing from another if a recovery be there upon had by the Plaintiff the Defendant may plead this recovery in Bar of a second Action brought against him for the same thing 21. Car. B. r. A Plea in Bar which doth not give a full answer to all the matter which is contained in the Plaintiffs Declaration is not a good Plea 21. Car. B. r. viz. If it answer not all the material matter of it If the Plaintiff do reply to the Defendants Plea in Bar this replication is a confession in Law that the Plea in Bar is a good Plea although the Plea be not good Trin. 23. Car. B. r. For the Plaintiff hath slipped his advantage of Demurring to the Defendants insufficient Plea by replying unto it If an Action of Debt be brought against one and he Imparles to the next Term yet after his Imparlance he may plead that the Plaintiff is Out-lawed in Bar of the Action Trin. 24. Car. B. r. Baile One that is in Execution is not Bailable by the Law Hill 21. Car. B. r. For Bail is put in to secure the Plaintiff that the Defendant shall perform the Judgement of the Court and now the Law hath determined the matter and there remains onely for the Defendant to perform the Judgement and for the not performing it he lies in Execution Before a Capias is taken out against the Bail the Principal may render his body to the Marshal of the Court and the entry of this in the Marshals Book is a sufficient ground to discharge the Bail and it is not necessary to enter this upon the Record but if the Principal do render his body after a Capias taken out against his Bail it is in the power of the Court whether it shall be accepted or not and they may if they will give the Plaintiff leave to proceed against the Bail notwithstanding the Principals rendring of his body 21. Car. B. r. Because he did it not in due time but hath put the Plaintiff to the charge and trouble of suing out the Capias One that had been Indicted thirteen yeers before for suspicion of murder in poisoning his servant was brought in Court by a Habeas Corpus and was bailed to answer the fact 21. Car. B. r. Though one that is in Execution do bring a Writ of Error to reverse the Judgement given against him yet the Court will not Baile him except their appear unto them very apparent Error in the Record 21. Car. B. r. For else they will suppose that the Writ of Error is onely brought to gain the parties liberty and so to frustrate the Execution One Arnold James that was Bailed in the 44. and 45. yeer of Q. Eliz. upon a Judgement given against him in the Lord Majors Court of London was brought into Court by a Habeas Corpus Trin. 22. Car. B. r.
of Latitat but the common and most usual way of proceeding is by Bill Mich. 22. Car. B. r. It hath been doubted whether the Marshals Court be a Court nor not because it is not annexed to any Corporation but unto Whitehall which is but a house and so it seems to be but a Court in Gross Mich. 22. Car. B. r. This was questioned when the Court was in being but now that Court is taken away by Stat and the question is out of doors A County Court cannot enquire of dammages arising out of the jurisdiction of it Hill 22. Car. B. r. One ought not to Sue to Bastardise an Issue in the Eclesiastical Court but the tryall lies at the Common Law Pasc 23. Car. B. r. Whether a Wife or not Wife is triable at the Common Law but whether lawfully married or not lawfully married is tryable in the Spiritual Court Pasc 23. Car. B. r. For a marriage is pleaded to be according to the Laws of the holy Church viz. the Eclesiastical Laws and therefore most proper for them to determine whether the marriage were solemnised accordingly Where the principal matter is tryable in the Spiritual Court and there is also a thing incident to this tryal which is tryable at the Common Law yet a Prohibition shall not there be granted Pasc 23. Car. B. r. Quia principale trahit ad se accessorium suum A Recognizance in the Common Pleas is entred specially but a Kecognizance in the Kings Bench is entred generally Pasc 23. Car. B r. In the Universities they hold Pleas by custome and do proceed according to the Rules of the Civil Law Pasc 23. Car. B. r. In the Court of the City of Exeter they proceed in that manner as they do in the Common Pleas but they do not so generally in other inferior Courts Pasc 23. Car. B. r. But in Norwich they proceed as they do at Exeter agreeing with the Common Pleas. The Common Pleas doth not shew at large whence the venne shall come but inferior Courts ought to shew it at large and not with an c. as the Common Pleas doth Pasc 23. Car. B. r. The Court of the publike Exchequer is a mixed Court and doth consist of Law and Equity Pasc 23. Car. B. r. The Pleas side is for matters of Law and the Chequer Chamber for matters of Equity The Court of the Kings Bench is a Court of Eyre in that County wheresoever it sits Trin. 22. Car. B. r. For it is not a fixt Court as the Common Pleas Court is but removeable The Court of the Common Councel of London is not a Court of Record but onely a Court of advice and therefore neither a Writ of Error nor an Attaint doth lie for matters done in that Court Trin 23 Car. B. r. One ought to speak against the jurisdiction of the Court by pleading to it and not by speaking in Arrest of Judgement Mich. 23. Car. B. r. For then it is too late The Palace Court is a Court in the Aire and annexed to no Corporation nor is beneficial to any society of men and from the Tunnel of White hall and twelve miles from thence in compass is called the Palace Court By Rolle Chief Justice Mich. 24. Car. B. r. Now that Court is taken away The Statute of Ieofails doth extend to inferior Courts if the Errors in their proceedings cannot be amended by the comparing of their Papers or such other matters for it is a beneficial Law and to be therefore largely expounded Pasc 24. Car. B. r. A Court cannot be held by Custome and by Letters Patents also for if one have a Court by Custome and he Purchase Letters Patents and holds the Court by them the Custome is extinguished Mich. 24. Car. B. r. This Court hath authority to reform abuses in the behaviour and carriages of all persons whatsoever throughout all England Hill 1649. Feb. 9. B. S. The Parliament cannot take way the jurisdiction of this Court without words in the Negative that is that it shall not do thus or thus 10 Feb. 1650. B. S. This Court is not to be open more then two dayes after the Term for Demurrers and Pleas and but three dayes for Issues Trin. 1651. B. S. All Courts of Record were originally the Kings Mich. 1651. B. S. Corporation If a Corporation do become so poor that it is not able to defray the publike charges which are incident unto it as it is a Corporation it is fit that the Corporation be feised unto the hands of the King Hill 21. Car. For the Corporation becomes useless and dishonourable If a Corporation doth neglect to elect such Officers as they ought to Elect by their Charter or if they make a false Election not warranted by their Charter this is a forfeiture of their Corporation Hill 21. Car. B. r. The Corporation of the City of London is to answer for all particular misdemeanors which are committed within any of the Courts of Justice within the City and for all other general misdemeanors committed within the City Trin. 22. Car. B. r. So I conceive it is of all other Corporations A Body Politick is a creature of the King created by Letters Patents Hill 22. Car. B. r. For though a Corporation may be by prescription yet it shall be intended that such a Corporation did originally derive its Authority by grant from the King Costs and Charges No Costs ought to be paid for the putting off of a tryal where no fault was in the party against whom it is moved for Costs An Attatchment lies against the party that refuseth to pay Costs which are taxed by the Master of the Office 21. Car. B. r. According to the Rule of the Court. If a Juror be withdrawn upon a tryal by the consent of the Plaintiff and the Defendant they shall pay the Costs of the Jury equally between them Trin. 22. Car. B. r. For if one of the parties alone should pay the Costs upon bringing the Issue again to be tryed by the same Jury as the course is so to do it would be a sufficient matter for him that did not joyn in paying the Costs to challeng the Jury for favor to him that did pay the Costs Trin. 22. Car. B. r. If upon a tryal the Plaintiff be forced to be non Suit because his witnesses did not appear he may by Action recover his Costs expended against his witnesses that did not appear Mich. 22. Car. B. r. It is at the Election of the Defendant if the Plaintiff do amend his Declaration either to accept of Costs and to plead or else to refuse Costs and to Imparle unto the next Term and not to plead Mich. 22. Car. B. r. The taxing of Costs is the Act of the Court although they be taxed by the Secondary of the Office Mich. 22. Car. B. r. For the Secondary is but the Officer of the Court and an instrument employed by the Court for such purposes and therefore the Court may
alter the Taxes if they see cause Taxes ought not to be Taxed untill the Atturneys on both sides be heard for their Clyents before the Secondary Mich. 22. Car. B. r. Except it be where either of the Atturneys doth neglect to appear before the Secondary having notice thereof If an Endictment taken in any County be removed by Certiorary into the Kings Bench and the Court be moved that it may be sent back again into the County where it was taken and if the Court upon good cause shewed doe order it accordingly it shall be removed back again at his costs who dedesires it to be removed Mich. 22. Car. B. r. For it shall be intended that the removing of it is for his benefit and ease When upon a tryall the plaintiff becomes non-suit the Defendant must pay the Jury their Costs Mich. 22. Car. B. r. For it is intended he receiveth benefit by the non-suit If there be any such fault in the entring of a speciall verdict so that it must be amended the Plaintiff or Defendant who was the occasion of making the fault must pay the Costs for the amending it Mich. 22. Car. B. r. if it be such a fault that Costs must be expended to amend it If a tryall at the Barr be put off in favour of the Plaintiff or the Defendant and the party that was not the cause of putting it off be compelled by putting it off to keep his Witnesses in Town he that caused the tryall to be put off shall pay such Costs for keeping them in Town as shall be taxed by the Secondary Hill 22. Car. B. r. If one will give leave to another to sue in his Name he that grants the leave shall pay the Costs of the suit Hill 22. Car. B. r. For he is the person upon record of whom the Law takes notice of and the Court takes no notice of the agreement between the parties Costs are not to be allowed for unreasonable motions but only for such as the party was necessarily put unto by the course of the Court. 22. Car. B. r. Arbitrators are to make the Writings touching their arb trement at their own proper Costs and ought not to award that the parties that submitted to the award shall pay for them Pasc 23. Car. B. r. Where the Judges of the Court doe desire to have Books of the Cause depending before them to be advised of the matter in Law the better by considering of the pleadings the Plaintiff and the Defendant ought to joyn in the Costs for the copying of the Books to be delivered to them Trin. 23. Car. B. r. It is the course of the Court to refer the taxing of the Costs to the Secondary of the Office and not to make any speciall rules for such matters Mich. 23. Car. B. r. No Costs are to be allowed upon a Repleader Mich. 23. Car. B. r. For both the parties were in fault to suffer such an insufficient issue to be joyned It is not necessary that the Jury should give Costs but they may leave it to the Court to doe it Mich. 23. B. r. Upon a Judgment upon a Nihil dicit in the Common Pleas that Court will give Costs and dammages generally Trin. 24. Car. B. r. If there be a speciall verdict found in a Replevin the Costs and dammages shall be given either against the replevyer or against the avowant as the issue shall be found for or against them Pasc 24. Car. B. r. The Court will not order any thing concerning the encreasing or mitigation of Costs but the parties are to attend the secondary in it and to abide by his order 13. Nov. 1650. B. S. Except it be in extraordinary Cases If a Juror appear upon a tryall which is to be at the barr and the Jury is adjourned and he doth not again appear at the day of adjournment he shall have no Charges allowed him for his former appearance 2. May 1651. B. S. Chancery A Master of the Chancery hath not power to take an Oath but in a Cause which is depending in the Court of Chancery 21. Car. B. r. The Chancery is not a fixt Court neither in respect of the place where it sits nor of the time when they may sit for they may sit out of the Terme and what place they please 12. Nov. 1650. B. S. By Rolle Chief Justice Capias A Capias duely sued out may be filed afterwards 21. Car. B. r. Challenge When the Jury appear at a Tryall before the Secondary calls them particularly by Name upon the panel to be sworne he bids the Plaintiff and Defendant to attend their Challenges 21. Car. B. r. It is not a sufficient cause to Challenge a Juror because he had delivered his opinion touching the title of the Land in question Pasc 23. Car. B. r. Q. tamen If one take a principall Challenge against a Juror he cannot afterwards Challenge that Juror for favour and waive his former Challenge Pasc 23. Car. B. r. If the Defendant doe not appear at the Tryall when he is called he loseth his Challenge to the Jurors although he doe afterwards appear Mich. 23. Car. B. r. If one Challenge a Juror and doe not make his Challenge good and after the Jury is adjourned he shall not Challenge that Juror again at another day except it be for some matter which is hapned since the adjournment Mich. 23. Car. B. r. If one Challenge a Juror he cannot afterwards have him to be sworne if the Secondary have entred the Challenge Pasc 24. Car. B. r. Q. Whether he may have him sworne if the Challenge be not entred It is a good Challenge against a Juror to say that he was a Juror in a former tryall for the same Land in question and upon the same title though the tryall was between other parties Mich. 24. Car. B. r. When the Array that is the whole Jury is Challenged the Councell of the party that makes the Challenge must read his Challenge in French and after he hath so read it it is to be delivered to the Secondary who is to read it in Latine 6. Nov. 1650. B. S. Which was then done in a Challenge for want of Hundreders But now by the late Statute this is to be done in English After the fore-man of the Jury is sworne the Array cannot be Challenged 6. Nov. 1650. B. S. For then it is too late for to Challenge the Array is to Challenge the whole Jury A Challenge to a Juror for favour is not accounted to be a principal Challenge If some of the Jury be Challenged for favour they shall be tried by the rest of the Jury their companions upon their Oathes whether they be indifferent to try the matter in question or not without going from the barre when they have heard all the evidence that is given against them by the Councel of the party that takes the Challenge 1655. B. S. In a Case tryed at the Barr between the Earl of Leicester and
Office where the Declaration is filled Yet they usually do it It is not necessary for the Plaintiffs Attorney to set his hand unto the Declaration which he delivers to the Defendants Attorney but the Defendants Attorney must receive it without his hand set to it If he know him to be the Attorney in the Cause 28. Novem. 1650. B. S. If one be in custody of the Marshall of this Court any person may put in a Declaration against him and the Declaration so put in is a good Declaration and the party must plead unto it although he be illegally in custody for the Court will not trouble themselves to enquire how the party came into Prison Pasc 1652. B. S. If a Prisoner be brought into the Court of the upper-Bench by a Writ of Habeas Corpus to answer a Suite there depending against him a stranger cannot declare against him there upon the by untill he be in custody of the Marshall but he that brought the Prisoner thither by the Habeas Corpus may declare against the Prisoner in Court before he is turned over in custody to the Marshall Pasc 1652. B. S. One ought not to declare against a Defendant in this Court untill his bail be filed By Rolle Chief Justice Pasc 1652. B. S. That is if he do put in bail Duty The words foris faceret may create a Duty Hill 21. Car. B. r. For the party to whom a thing is forfeited hath an intrest in the thing forfeited before he recovers it Dammages Dammages ought not to be given for that which is not at all contained in the Plaintiffs Declaration or for that which is immaterially alledged or against Law but onely for that which is materially alledged and set forth in the Declaration Hill 21. Car. B. r. 23. Car. B. r. Where an Action upon the Case and an Action of trespass are both founded upon one and the same Dammage done to the Plaintiff he may recover joynt Dammages upon both the Actions Hill 21. Car. B. r. Where a trespass for which an Action is brought is entire and not severall trespasses there ought not to be severall Dammages given against the Defendant Mich 21. Car. B. r. Where one joynt Action of trespass is brought for two severall trespasses and the trespasses are found severally the Dammages may be severall but if one Action of Trespass be brought against three Trespassers and two of the Trespassers against whom the Action is brought be found guilty and the third is found not guilty there the Dammages may notwithstanding be intire Mich. 22. Car. B. r. For the trespass is but one joynt trespass though the Action be brought against divers persons But in the former Case there are severall trespasses found and so the Dammages may be severall though the Action be a joynt Action In an Action upon the Case the Jury may finde less Dammages then the Plaintiff layes in his Declaration but they cannot finde more then is laid in the Declaration Mich. 22. Car. B. r. For the Law presumes that the Plaintiff doth best know how much he is damnified by the Defendant and therefore though it may be the Plaintiff will pretend he is more damnified then in truth he is as is often done yet it shall not be presumed that the Plaintiff will say he is less damnified by the Defendant then in truth he is And therefore for the Jury to give more Dammages then the Plaintiff declares upon would be unreasonable which the Law will not suffer Double Dammages given for one and the same Trespass are not well given Mich. 22 Car. B. r. For the Law uses to proportion the amends or satisfaction for an injury done according to the loss which the party to whom the injury is done doth receive by the injury Upon a judgment given upon a demurrer upon an Action of the Case the Court is not to assesse the Dammages but the Jury is to do it Mich. 22. Car. B. r. For the Court gives the judgment upon the matter in Law but the Dammages are to be given upon consideration of the matter of fact which is proper only for the Jury to enquire of In an Assize the Jury ought to give Dammages pending the Suit because there is no remedy over to the Dammages as in an Ejectione firmae but finall Dammages are to be given Pasc 23. Car. B. r. Upon a demurrer to an evidence the Court did direct the Jury who should have tried the issue if the demurrer had not been to finde Dammages for the Plaintiff if upon arguing the demurrer the Court should give judgment for him Pasc 23. Car. B. r. For the Jury may consider of the matter in fact which should have been tryed if the evidence had not been demurred unto Where Dammages are found severally the Plaintiff may relinquish part of the Dammages and enter his judgment for the rest Hill 23. Car. B. r. But where the Dammages are entire he may not do it without leave of the Court Pasc 24. Car. B. r. 19. Ap. 1648. The Jury ought to finde Dammages in a speciall verdict found in an Action of Trespass and Ejectment for untill the Plaintiffs Title is found which is not done by the speciall verdict the Plaintiff shall be accounted a Trespasser against the Defendant because the Defendant was in possession of the Land when the Plaintiff entred and made the Lease of the Land Pasc 24. Car. B. r. For he that is in possession of Land hath title to it against all the world untill a better title is proved Melior est conditio possidentis Where a debt sued for doth appear certainly to the Court what it is there if the Plaintiff recover the Court doth tax the Dammages and not the Jury but where it doth not appear certainly to the Court there it is left to the Jury to enquire of and to tax them Trin. 24. Car. B. r. A Writ of Enquiry of Dammages in a Cause tryed in the Mareschals Court may be executed by the Judges in the Court there Trin. 24. Car. B. r. Greatr Costs and Dammages may be given in some Cases then the Dammages laid in the Declaration Trin. 24. Car. B. r. For the Plaintiffs Declaration is only for the Dammages due unto him by reason of the injury done him by the Defendant But the Costs are given in respect of the Plaintiffs expences in his suit to recover the Dammages In a Replevin brought and a speciall verdict thereupon found Costs and Dammages shall be given on either side according as the issue shall be found If a judgment be given upon a nihil dicit in an Action of Debt brought in the Common Pleaâ— that Court will give Costs and Dammages and so is it used to be done in inferior Courts Trin. 24. Car. B. r. But Q whether it be so inthis Court If entire Dammages be given in an Action brought for divers severall things whereas it is not possible to have Dammages for some of them the Dammages
shall be accounted to be given for those things only for which Dammages may be given and the expressing the other things shall be accounted idle and void Trin. 24. Car. B. r. If an Action of Trespass be brought and the Defendant pleads and the Plaintiff joyns issue with the Defendant and after issue joyned he is non-suit he shall pay the Defendant Costs for his false vexation of him by the Stat. of 4. Jac. And upon very good reason For it shall be intended that if he had had good cause of Action against the Defendant that he would not have become non-suit When a judgment is given by default then the Court doth assesse the Dammages and not the Jury Mich. 1649. B. r. For there is no issue tryed If an Action of Trespas be brought against divers persons and some of them plead to issue and others do not and the issue is found for the Plaintiff and Dammages are given as well against those that joyned not in the issue as against them that joyned in the issue these Dammages are well given Mich. 1649. B. S. For the Trespas is found and that the Plaintiff was damnified so much by reason thereof If Dammages be assessed and it is not expressed that they are assessed pro Misis Custagiis this is erroneous for it doth not appear by the Record for what the Dammages are assessed as it ought to do Hill 1649. 31. Jan. B. S. For Records ought to be certain and not ambiguous All Costs are given ex assensu partium that is by the consent of the Plaintiff and the Defendant By Woodward Clarke Hill 1649. 4. Feb. B. S. If the Defendant whose title is concerned in an Ejectione firmae will not defend his title to the Land in question and the verdict do pass against the Plaintiff the ejector may release the Dammages 11. Feb. Hill 1649. B. S. For they do properly belong to hiâ—… One that sues in forma pauperis if the Cause go against him yet he shall pay no Costs if he were admitted to sue in forma pauperis in the suit which passeth against him before the suit began but if he were admitted to sue in sorma pauperis pendente lite that is whilst the fuit depended he shall pay Costs By Rolle Chief Justice who said it had been so antiently held and ruled 16. Nov. 1650. B. S. But Q what Costs whether the Costs of the whole suit or only with relation from the time he commenced his suit to the time he was admitted to sue in Forma pauperis In a Writ of Dowr if the Plaintiff recover and yet doth not desire a Writ of enquiry of Dammages to recover the Dammages the Court may tax the Dammages 5. Feb. 1650. B. S. The Court may encrease the Dammages which are found by the Jury upon a Writ of enquiry of Dammages in an Action of Assault Battery and Wounding if they see cause upon the view of the party that was beaten and wounded Trin. 1651. B. S. This was done in the Case of Davis Plaintiff and the Lord Foliot Defendant The Court will not compell the party that is non-suit in a Cause to pay his Costs upon the non-suit but if the party will not pay them when they are taxed the Court will not suffer him to commence his suit again untill he have paid them Pasc 1652. B. S. After judgment is given in a Cause depending in this Court the Court cannot make a Rule for the payment of the Costs which were expended in prosecuting the suit By Rolle Chief Justice 1655. B. S. For after judgment the parties are out of Court for the Cause is determined Q. No other Costs or Dammages shall be given upon a Recovery in an Action brought upon the Statute of 2º Edw. 6. for not setting forth of Tythes than the Dammages which are expressed in the Statute which is treble dammages 1655. B. S. For the course of the Common Law in such cases is altered by the Statute and it shall be intended that the Plaintiff hath better satisfaction thereby Deputies The Common Law doth in many Cases take notice of Deputies but it doth never take notice of under-Deputies Trin. 23. Car. B. r. As of the under-Sheriff who is but the Sheriffs Deputy sub-Almoner or Deputy-Almoner For in many Cases an Officer may be Law make a Deputy but a Deputy hath no power to depute another under him The King by his speciall Commission may make Deputy Escheators to finde an Office after the death of an Honourable Person Pasc 24. Car. B. r. As of a Duke Earl Marquess Viscount Baron c. Q. Whether in some speciall Case he may not do it after the death of one that is not of the Nobility It seems he may Default Before a verdict is taken by Default the Cryer of the Court doth call the Defendant three times and then if the party do not appear the Plaintiffs Counsell doth pray the verdict may be so entred Hill 21. B. r. Debt An Action of Debt doth lye against the Husband for goods which were delivered as sold unto the Wife because the Law doth intend that they were employed and came to the use of the Husband Hill 21. Car. B. r. And the Husband and Wife are but one person in Law If there be an erroneous judgment given for the Plaintiff in a personal Action in the Common Pleas and thereupon he brings an Action of Debt against the Defendant upon the erroneous Judgement in this Court the Action will well lye here until the Judgement in the Common Pleas be reversed by a Writ of Error 21. Car. B. r. For an erroneous Judgement is not void but voidable But when it is made void by a Writ of Error then there is no ground to support the Action of Debt so that then it cannot be maintained If one do assume upon a consideration moving from I. S. to perform a thing which concerns A. B. and do not perform it I. S. may bring an Action of Debt upon the Assumpsit against him that did so assum upon himself Mich. 22. Car. B. r. For the Action is grounded upon the promise made and the not performing it to I. S. to whom it was made In some Case an Action of Debt will ye though there be no contract betwixt the party that brings the Action and him against whom the Action is brought Mich. 22. Car. B. r. An Action of Debt lies against a Sheriff for moneys which he hath levyed by vertue of a Writ of fieri facias for the party that did recover the moneys for the Law doth create a privity by the fieri facias betwixt the Sheriff and the party that sued out the fieri facias Mich. 22. Car. B. r. If An Action of Debt be to be brought against an Administrator for Rent which was due by the Intestate upon a Contract made betwixt him and the Intestate in his life time the Action must he brought in the County where the Contract
was made but if an Action of Debt be brought against an Administrator for Rent due for Lands left by the Plaintiff to the Intestate but growing due in the time of the Administrator viz. since the Letters of Administration were granted unto him the Action must be brought in the County where the Lands do lye for which the Rent is due Mich. 22. Car. B. r. An indebitatus assumpsit generality is not good to create a Debt but there must something else be made appear to the Court to make a Debt to be due to the party that brings an Action of Debt or else the Action will not lye Mich. 22. Car. B. r. For else to declare upon an indebitatus assumpsit is no more then if the parties declared upon a nudum pactum An Action of Debt doth lye for a Councellor or for an Atturney for their Fees against the party that retained them Mich. 22. Car. B. r. Q. Whether it lie for a Councellor for his Fee is honorarium Quiddam and not mercenarium a Gratuity rather then Wages or a Salary By Rolle Chief Justice An Action of Debt doth lie upon a perfect Contract in Law betwixt the parties and not an Action upon the Case 22. Car. B. r. For generally where the Law directs a certain Action there an Action upon the Case is not to be brought An Action of Debt brought against an Executor for Rent grown due in the time of the Executor ought to be brought in the detinet and debet Hill 22. Car. B. r. So then said to be adjudged in Royton and Mees Case But if the Action be brought for Rent due in the life of the Testator the Action ought to be brought in the detinet onely Where a certain sum of mony is to be paid upon an Obligation at several dayes of payment expressed in the Condition of the Obligation though the mony be not paid accordingly yet an Action of Debt cannot be brought for any part of this money untill all the days of payment expressed in the Obligation be past Pasc 24. Car. B. r. Because the penalty of the Obligation is to be recovered which is not wholly due untill the whole Condition be broken which is not so untill the party fail in the last day of payment If one deliver necessaries to an Infant viz. meat drink or cloaths and he promise to pay for them an Action of Debt will lye against the Infant upon this promise if he perform it not But if the party come to an account with the Infant forwhat is due unto him from the Infant and thereby doth state the sum due unto him an Action of Debt doth not lye against the Infant for the moneys stated to be due unto the party upon this account Trin. 24. Car. B. r. If a woman sole be indebted and then take a husband the Debt is now thereby become the Debt of the husband and of the wife that is to say the wives proper Debt and the husbands Debt in the right of his wife and the wife ought to be sued for this Debt together with her husband and if the husband dye whereby the Action is abated yet the wife may be sued again for this Debt Trin. 24. Car. B. r. A Judgement was Reversed in this Court by a Writ of Error because it was given to recover a Legacy Trin. 24. Car. B. r. For then a Legacy was not recoverable at the Common Law but in the Eclesiastical Court or in the Chancery But now by a late Statute an Action lies for a Legacy at the Common Law See the Statute An Action of Debt doth not lie upon a Judgement given in this Court after the Record thereof is removed by a Writ of Error out of this Court into the Exchequer Chamber Trin. 23. Car. B. r. An Action of Debt doth not lie against an Executor which is grounded upon a simple contract made by the Testator Hill 1649. Jan. 31. B. r. Q. And Action of Debt doth lie against a Goaler for suffering a prisoner in Execution to escape by the party at whose Suit the Prisoner was committed in Execution Trin. 1650. B. r. 15. Junii One may bring an Action of Debt for Rent in what County he pleaseth 9. Nov. 1650. B. r. Because it sounds not in the realty Q. If a judgement be given for the Plaintiff in an Action of Debt in the Common Pleas and afterwards the transcript of the Record is removed into this Court by a Writ of Error yet the Plaintiff for whom the Judgement was there given may bring an Action of Debt there upon that Judgement but if the Judgement be Reversed in this Court upon the Writ of Error and after the party proceed in the Common Pleas in his Action of Debt the party against whom he thus proceeds may bring his Audita Querela to be relieved against this second Action 3. Feb. 1650. B. S. For by the reversal of the Judgement the ground of the second Action is destroyed One may joyn two Debts due upon two severall Obligations from the same party in one Action of Debt 6. Feb. 1650. B. S. And declare in one Declaration upon the several Obligations If one do deliver goods to I. S. to my use if the party to whom they were delivered do refuse to deliver them unto me I may have either an Action of Debt or an Action of Accompt for them against him to whom there were delivered at my election 22. Ap. 1651. B. S. Deeds Such construction ought to be made of a Deed that it may agree with the intent of the parties to the Deed if their intent do not contradict the Rule of Law Hill 22. Car. B. r. A Deed of Indenture made betwixt two ought to be Sealed and Delivered by both parties to the Indentures otherwise it cannot be said to be a Deed indented Trin. 23. Car. B. r. If all the parts of a Deed may by Law stand together no one part of that Deed shall be so interpreted as to make either the whole Deed or any part of it to be voide Pasc 24. Car. B. r. A Deed cannot be delivered as an escrew to the party himself who is to take by the Deed. Trin. 24. Car. B. r 1650. Trin. B. S. For the delivery of it makes it the parties Deed. If a Deed do say This Indenture made whereas the Deed is not endented yet it may be a good Deed for it may work as a Deed Poll though it cannot work as an Indenture If it do not appear by the Fabrick of a Deed that Lands do pass by the Deed by way of Feoffment yet the Land may pass by it by way of use if there be a consideration which is sufficient in Law to raise a use expressed in the Deed. Ejectment IF one Seal a Lease of Ejectment to try a title of of Land it is not necessary to give notice of the sealing of this Lease unto him whose title is concerned but it is sufficient
to give notice of the Lease to the Tenant or Undertenant of the Land in question Hill 23. Car. B. r. For the possession of the Land is primarly in question in this Action and is to be recovered and not the title of the Land though the title of the Land do come in question and is tryed collaterally But now by the new way of practice it is not usual to Seal any Lease of Ejectment at all in an Action of Trespass and Ejectment but the Plaintiff that intends to try the title delivers a Declaration to an Ejector of his own making and that Ejector sends or delivers the Declaration to to the Tenant in possession who gives notice thereof to his Lessor whose title is concerned to defend the title and if neither the Tenant in possession nor his Lessor will defend the title then the Ejector will confess a Judgement to the Plaintiff and so the Tenant will be stripped out of possession but if they or either of them will defend the title then it is usual for them to move the Court that they may be made Ejector to defend the title which the Court will grant if they will Consess Lease Entry and Ouster at the tryal and stand meerly upon the title and if at the tryal they do not then Judgement to be entred against the Plaintiffes Ejector If one do do occupy the Lands in question in an Action of Trespass and Ejectment after the Ejectment Lease made to try the title of the Land is Sealed this is an Ejectment in Law of the Lands in question Trin. 22. Car. B. r. For the keeping of possession of the Lands against him to whom they are let by the Lease doth amount to an Entry upon him although he was never in possession of the Land let If there be two Ejectors made in an ejectione â—irmae one of them may be found guilty of the Trespass and Ejectment and the other as the case may fall out may be acquitted Trin. 22. Car. B. r. An Ejector in Law is any person that comes upon any part of the Land c. in the Ejectment Lease although it be by chance and with no intent to disturbe the Lessee of the possession next after the Sealing and Delivery of the Ejectment Lease and such an Ejector is a good Ejector to bring an Action of ejectione firmae against to try the title of the Land in question Mich. 22. Car. B. r. 1650. B. S. And there is no prejudice to any person by having such an Ejector He that is to try a title of Land by an Action of Trespass and Ejectment ought not to make an Ejector of his own against whom he may bring his Action or to consent or agree with one to come upon the Land let in the Ejectment Lease with an intent to make him an Ejector and to bring his Action against him Mich. 22. Car. B. r. For by that means the Tenant in possession of the Land was often put out of possession by a Writ of habere facias possessionem without any notice given either to him or his Lessor of the Suite But now this is altered by the new way of practise formerly mentioned In every ejectione firmae the Plaintiff ought to set forth in his Declaration in what Parish the Lands in question do lie that the venue may be from the place where the Lands do lie and not from the body of the County except it be when as the Lands in question do not lie in any Vill or Hamlet Mich. 22. Car. B. r. Or lieu Conus for in all such causes it is of necessity that the Jury be of the body of the County because there is not any more particular place from whence the venue may come If one doclare upon a Lease in an ejectione firmae and that by vertue of that Lease he was in possession of the Lands thereby let unto him untill that he was Ejected by the Defendant it is supposed that the Lessor that made the Lease unto him was alive at the time when he brought his Action Mich. 22. Car. B. r. An Ejectment or an Ouster is either an actual Ejectment as when the Lessee is actually put out of the Land let unto him or else it is an Ejectment by implication of Law Pasc 22. Car. B. r. An ejectione firmae ought to be brought for a thing that is certain and not of an incertain thing Pasc 23. Car. B. r. For if the thing be uncertain the Sheriff cannot if the Plaintiff recover know of what to deliver the possession upon the Writ of habere facias possessionem If the Plaintiff in an ejectione firmae do declare for a house lying in two Parishes if the house do lye in either of the Parishes and do not lye in both of them yet is the Declaration good Pasc 23. Car. B. r. For there is certainty enough in it Although in an ejectione firmae there be a Verdict and a Judgement against the Plaintiff yet the Plaintiff may bring another Action of Trespass and Ejectment for the Land Trin. 23. Car. B. r. He may bring divers Actions one after another if he please for a Judgement in that Action is not final By Rolle Chief Justice It is doubtful whether an ejectione firmae do lie de uno crofto Trin. 23. Car. B. r. For the incertainty of the word Croft what it is and what it doth contain If a Lease of Ejectment to try the title of Lands in the possession of I. S. be made to one and after the Lease is made the Wife of I. S. or the servant of I. S. do keep the possession of the Land for I. S. and I. S. do after this occupy the Land I. S. is an Ejector against whom an Action may be brought to try the title of the Land Mich. 23. Car. B. r. 24. Car. B. r. Pasc One who hath title to the Land in question in an ejectione firmae may upon motion to the Court be made a party to the Action that he may thereby defend his title if he will confess the Lease Entry and Ouster Hill 23. Car. B. S. Vid. Supra If a Lease of Ejectment be made of a house and lands occupyed with it to try the title of them and the wife of the occupyer of the house and land continue in possession of the house after the Ejectment Lease is made she is an Ejector as to the house but not as to the Lands Pasc 1652. He who is in any part of a Messuage viz. in the Barn Stable Stall c. after the Lease of Ejectment Sealed and Delivered to try the title of the Messuage is an Eject or for the whole Messuage Pasc 24. Car. B. r. The owner of the Land may consent with the party that claims the Land to make an Ejector to try the title of it if it be not a plot betwixt him and the Ejector Mich. 24. Car. B. r. viz. To strip the Tenant of the Land in
inhabit within any of the Cinque Ports or members thereof If an erroneous judgment be given in any of the Sheriffs Courts of the City of London the Writ of Error to reverse this judgment must be brought in the Court of Hustings before the Lord Major Hill 22. Car. B. r. For that is the Superior Court A Writ of Error that is brought in the Parliament is made retornable immediately Pasc 23. Car. B. r. A Writ of Error to reverse a judgment ought not to be brought before the judgment is signed Pasc 23. Car. For before it is signed it is not judgment and the Writ of Error runs thus Si judicium sit redditum Yet it is usual to do it in inferior Courts Q Whether the Heir may bring a Writ of Error to reverse an erroneous Judgment given in a personal Action which Judgement doth charge the Lands of the Heir Trin. 23. Car. B. r. He that brings a Writ of Error to reverse a Judgement ought by the Statute to put in good Suerties to pay the debt recovered and the charges of the Judgement and those that shall be caused by bringing the Writ of Error in Case the Judgement shall be affirmed and not reversed upon the Writ of Error Trin. 23. Car. B. r. For it is reason the party should have recompence for his causeless vexation and delay When a Writ of Error is brought to reverse a Judgement the party that brings the Writ must cause the Roll where the Judgement is entred to be marked whereby the other party may take notice upon Record that the Writ of Error is brought and this marking of the Roll is a Supersedeas in it self to hinder Execution to be taken out upon the Judgement but if the Roll be not marked Execution may be taken out upon the Judgement notwithstanding the Writ of Error but if Execution be taken out after it is marked the party grieved may have a Supersedeas quia erronice emauavis to make void the Execution Mich. 23. Car. B. r. It is not usually for the Court of Common Pleas upon a certiorari directed to them upon a Writ of Error brought to reverse a Judgement given in that Court to Certifie the Record into this Court to Certifie the Original Writ upon which the Action was commenced there for that Writ is to remain with the Custos brevium of that Court Mich. 23. Car. B. r. A Writ of Error is not to be brought in Parliament to reverse a Judgment given in the Common Pleas but the Writ of Error ought to be brought in the Court of the Kings Bench. Hill 23. Car. B. r. The Chief Justice onely and not any other of the Judges of the Court ought to allow a Writ of Error that is brought Hill 23. Car. B. r. If a Judgement given in this Court be erroneous in matter of Fact onely and not in matter in Law a Writ of Error may be brought in this Court where the Judgment was given to reverse it and it it is not necessary to bring a Writ of Error in Parliament but if the Judgement be erroneous in matter in Law then a Writ of Error cannot be brought in this Court to reverse it Pasc 24. Car. B. r. 1650. B. S. For error in fact is not the error of the Judges and therefore the reversing of a Judgement given by them which is onely erroneous in matter of fact is not the reversing their own Judgement but it is otherwise if the Judgement were erroneous in matter in Law A Writ of Diminution in a Writ of Error ought not to be granted to be directed to an inferior Court Trin. 24. Car. B. r. If he that doth bring a Writ of Error do discontinue his Writ before the Defendant in the Writ of Error do plead unto it he may have a new Writ of Error but if he discontinue his Writ after the Defendant hath pleaded to it he cannot have a new Writ Mich. 1649. B. S. If by any possibility there may be supposed to be error in the Record any person that may be damnified by this error may bring a Writ of Error to reverse it Hill 1649. B. S. For although he be not named a party to the Record yet the Law hath made him a party to it by subjecting him to dammage by it and it is therefore reason he should be permitted to use all lawful means to defend himself from it A Judgement may be an erroneous Judgement although it be not given for the Plaintiff but the Defendant is thereby acquitted for it may be erroneons in the entry of it for it may it is entred with a Capiatur against the Plaintiff whereas it ought to be in Miserecordia pro falso Clamore Hill 1649. B. S. A Writ of Error is not like another Writ for a Writ of Error may be abated as to one person and yet may stand good as to another person and so cannot another Writ But if the Writ of Error be brought in a Case where it will not lye it must be abated in the whole Hill 1649. B. S. 27. Jan. For there is no ground for the Writ All the parties privies to the Record may joyn in a Writ of Error to reverse it if it be erroneous Hill 1649. B. S. A Writ of Error may be brought to Reverse a Judgement before a Writ of Enquiry of dammages which Issues out upon the Judgement be executed Hill 1649. 2. Feb. B. S. Q. The party who is to have benefit by a Judgement may bring a Writ of Error to reverse it as well as the Defendant Hill 1649. B. S. 4. Feb. If a Writ of habere facias possessionem to deliver possession to the Plaintiff of Lands recovered by him in an ejectione firmae doth contain in it more Acres of Land then were contained in his Declaration the Writ is erroneous but if the Sheriff do deliver possession of more Acres of Land then are contained in the Writ this doth not make the Writ erroneous but there an Action upon the Case doth lye against the Sheriff for doing it or an Assize may be brought against him that hath the possession delivered to him for the Surplusage of the Land delivered unto him 18. Nov. 1650. B. S. A Writ of Error ought to mention before whom the Judgement was given for the reversing whereof it is brought 31. Jan. 1650. B. S. A Writ of Error which is brought to reverse an Out-lawry was wont to be signed by the King Q. Who shall sign it now whether the Parliament or not 3. Feb. 2650. B. S. But now I suppose it shall be signed by the Protector If Judgement be given upon a matter which doth arise out of the jurisdiction of the Court where the Judement is given this is an erroneous Judgement 3. Feb. 1650. B. S. For such a Judgement is given coram non judice and so is voide in toto If a Judgement be entred quod recuperare debeat a Writ of Error cannot be
brought to reverse this Judgement for it is not a perfect Judgement for the Judgement ought to be quod recuperet in the Present Tense 10. Maii. 1651. B. S. A Writ of Error doth lye for the husband to reverse an Out-lawry against his wife 10. Maii. 1650. B. S. For his own interest is concerned in it If there be two Writs of Error brought to reverse one Judgement and one of the Writs is good and the other is erroneous the Court will take that which is good without any consideration had of the other if it be to affirm the Judgement Trin. 1651. B. S. For the Court doth not favor overthrowing of Judgements Entry If one Enter into the house of another without his consent although the door of the house was open when he Entred into the house yet this is a forcible Entry Mich. 24. Car. B. r. Because it is against the will of the possessor of the house Words alone cannot make an actual Entry and Ouster although they be violent and threatning but there must be force used by the party to make it so Mich. 1650. B. S. For the word Ouster doth implye a violent act to be done and not words spoken onely If he who hath right of Entry into a Free hold in question do Enter into part of it this Entry shall be accounted an Entry in all that part of it which is in the possession of one Tenant but if there be several Tenants possessed of the Free-hold in question there must be several Entrys made upon the several Tenants but if he who hath no right to Enter doth Enter he shall gain title to no more by his Entry then that part onely whereupon he did make his actual Entry 8. Nov. 1650. B. S. If one do make an Entry into Lands c. in the possession of another and he upon whose possession the Entry is made do notwithstanding such Entry continue in possession of the Lands c. with his servants and cattel such an Entry is to no effect to gain the possession but if upon the Entry his servants and his cattel be Ousted from the Land he that is thus Entred upon must prove that after this he did again make an actual Entry into the Lands or else he shall not be judged to have regained his possession 25. Ap. 1650. B. S. For there must be an actual re-entry to gain the possession against an actual Ouster A special Entry into a house with which Lands are occupied by claiming the whole is a good Entry as to the whole house and Lands to reduce the title to him that makes this special Entry from him that was in possession of it and upon whom he entred Trin. 1651. B. S. If one do live in the house with his father and do continue in the house after the death of his father who dyed in possession his continuing there shall not be said an Entry to avoid an estate in the house Pasc 1652. B. S. If one will disclaim a Suit he that doth disclaime must enter his disclaimer upon Record 1652. B. S. Or else the Court cannot take notice thereof Examination A witness that is to be at a tryal to testifie his knowledge there ought not to be examined in any matters concerning the tryal before the tryal except the Plaintiff and the Defendant do agree thereunto Hill 1649. B. S. It is usual in the Court of Common Pleas when a Fem Covert levies a fine for the Judge to examine her whether she do it willingly or no before they take the fine which they will not take without her free consent But where a Fem Covert suffers a recovery she is not examined But Rolle Chief Justice said That he doth alwayes examin a Fem Covert that comes before him to suffer a recovery 8. Nov. 1650 B. S. For the mischief may be as great by the not examining of her in the one case as in the other If a Copy of a Will to be made use of at a tryal be to be Examined in the Prerogative Office it ought to be Examined by the Original Will there if the Original Will be in the Office and not by the Register Book there where the Will is entred 23. Ap. 1651. B. S. For the Will may be misentred there By Glynn Chief Justice The Custos brevium ought to examine the Issue to be tryed with the Plaintiffs Atturney before the tryal Trin. 1655. B. S. That the tryal may not miscary by reason of some slip in the making up the Issue Engagement A Merchant stranger is within the Statute made for the taking the Engagement 18. Nov. 1650. B. S. That Statute is now taken away Exemplification One may Exemplifie a Deed that is make a Copy of it under the great Seal in Chancery and so he may a Bill answer and Intergatories in Chancery and other proceedings there and such an Exemplification is Authentick and may be given in evidence to a Jury upon a tryal 13. Maii. 1651. B. S. A Rulle made in the Common Pleas may be Exemplified in that Court. By Pinsent Preignotary and the Court there 1651. C. B. Q. Whether the like may not be in this Court of the Vpper Bench. Exigent An Exigent against two which is returned in these words Non Comparuerunt and the words Nec aliquis corum comparuit is erroneous and to be reversed 21. Car. B. r. For if any one of the two do appear upon the Exigent he that appears ought not to be Outlawed and so the return is uncertain Endictment When an Endictment is special the Evidence given upon the tryal of this Endictment must prove this special matter and maintain the Endictment but if it be a general Endictment it is not so 21. Car. B r. An Endictment must be certain that the party Endicted may know how to plead to it or traverse or else it is not good but may be quashed Hill 21. Car. B. r. An Endictment ought to be in Latin or else it is not good but may be quashed except it be an Endictment taken before Commissioners of Sewers which may be in English Hill 21. Car. B. r. But now since the late Statute made for all proceedings in Law to be in English all Endictments must be in English The Parish in which the fact was done for which the party is Endicted ought to be named in the Endictment 21. Car. B. r. An Endictment doth lye against one that speaketh blasphemous words 21. Car B. r. It lay then at the Common Law but now by a late Act it lies for speaking of some blasphemous words named in that Act. But Q Whether it now lye at the Common Law for speaking any other blasphemous words not mentioned in the Statute An Endictment for a nusance doth lye against the owner or proprietor of a Ship that is sunk in a Haven or port 21 Car. B. r. For thereby the trade of that place where the Haven or that Port is is hindred and
Mich. 22. Car. B. r. For the Law doth not favor the poor to do injury to others but to help them to recover their right If one that doth doth sue in forma pauperis be non-suite at the tryal he must pay costs to the Defendant or else be whipped Pasc 1652. B. S. For the Law will Judge he had no cause of Action and therefore he must make satisfaction to the Defendant for injustly vexing of him and if he cannot do it by his purse be shall do it in his person If it be proved unto the Court that one who sues in forma pauperis is a vexatious person and hath many frivolous Suites depending the Court will Dispauper him 1654. B. S. For this will be a means to make him less contentious Rolle Chief Justice said That he did not use to admit any one generally to sue in Forma pauperis but onely to sue so in one Cause by vertue of that admittance 1654. B. S. Forfeiture If one take a wife that is Seised of Gavel-kind Lands and she dyeth without issue by her husband her husband shall be Tenant by the curtesie of half of the Lands so long as he shall live unmarried but if he marry again he shall Forfeit his estate in the Lands Mich 22. Car. B. r. This is by the custome of Kent but by the same custome if he had issue by his wife then he shall be Tenant by the curtesie of all the Lands his wife was seised of and although he do marry again he shall not Forfeite his estate Mich. 22. Car. Q. Whether in the former Case he shall forfeit his Tenancy by the courtesie if he do live incontinently If a Lease be so made that it is to be Forfeited if the Rent reserved in the Lease be not paid as the Lease doth provide although the Rent be not paid accordingly yet there is no Forfeiture to be taken if there was not an actual and Legal demand of the Rent made by the Lessor Mich. 23. Car. B. r. For the Law doth not favor defeating of estates If a Copy-holder do deny to pay unto the Lord the fine which is ascertained due unto him by the Copy-holder or do refuse to appear at his Lords Court and to do his Suite there this is a Forfeiture of his Copy-hold estate Trin. 24. Car. B. r. For he holds his Copy-hold of the Lord upon these conditions If a Copy-holder do let his Copy-hold unto another for years and the Lessee do sell the Timber growing upon the Copy-hold yet this is not a Forfeiture of the Copy-hold estate 6. Nov. 1650. B. S. Franchise Nor Franchise shall be allowed in any case where the Franchise doth fail to administer justice within the Franchise but if there be such a failer this Court by their Authority may intermeddle notwithstanding the priviledges of the Franchise to compell them to do Justice Mich. 22. Car. B. r. For priviledges are not granted to protect men in neglecting to do right or to do wrong Fees In such Cases where the Sheriff is to have Fees there he is not bound to execute his Office in returning of Writs c. untill the Fees that are due unto him be tendred unto him 22. Car. B. r. The Statute of 23. H. 5. which doth give Fees to Sheriffs doth onely extend to their executing of Writs of Execution 22. Car. B. r. There are no Fees due to the Sheriff by the Common Law by the Subject for executing his Office but the King ought to pay him his Salary Mich. 22. Car. B r. For as the people do owe Alleigance to their King so the King doth owe Justice and protection unto his people An Action of Debt doth lye for a Councellor or an Atturney for his Fees against him that retained him in this cause Mich. 22. Car. B. r. Q. Whether it lye for a Councellor If a Clyent when his business in Court is dispatched doth refuse to pay unto the Officer in Court the Fees which are due unto hâ—m for doing his business the Court will upon motion grant an Attatchment to the Officer against the Clyent to â—ave him committed untill he pay the Fees due By Rolle Chief Justice 1650. Felony Where one is doing of an unlawful act and the death of any person ensueth upon the doing of that act though the death of the party was not intended by him that did the act yet this is Felony Pasc 23. Car. B. r. If one be committed to the Goal for one Felony the Justices of the Goal delivery may enquire and try him for another Felony for which he was not committed By Bacon Justice Trin. 23. Car. B. r. It is Felony to personate a Baile By Bacon Justice Mich. 23. Car. B. r. Q. Whether the procuring of one to personate a Baile be Felony The receiving onely of stolen goods is not Felony but the receiving of them and comforting the Felon is Felony Pasc 24. Car. B. r. For he may receive them and not know them to be stolen but the comforting the Felon doth prove that he consented to the Felony If one be set upon in the High-way or other place to be robbed and he do cast away his goods with an intent to save them from the robber and the robber doth take them up and carry them away this is a robbery and Felony committed to the person of the party robbed although he took nothing from his person Mich. 1649. B. S. For the party is robbed of his goods and the thief knew them to be the parties goods and came with an intent to take them from him had he not cast them away One ought not to be arrested upon suspicion of Felony except that there be good cause shewed for the ground of this suspicion 1649. B. S. For every foolish fancy or conceit is no ground of a suspicion sufficient to arrest one for so high a crime It is Felony to take a Bill from off the File after a Verdict in the cause for which the Bill was sued forth Mich. 1649. B S. For this is embezeling of a Record The robbery of a servant of his masters money in his custody if it be in the presence of his master is robbing of the master Mich. 1649. B. r. A robbery shall be said to be done in that Hundred where the party robbed is first set upon although his goods be taken from him in another Hundred Mich. 1649. B. S. For there the robbery was begun and the peace first broken A Hundred shall not be charged for a robbery committed within it upon the Statute of Winchester in Crepulsculo or twilight that is when it is neither perfect day nor perfect night but if it be committed by day light although it be before the rising of the Sun or after the setting of it the Hundred shall be charged 31. Oct. 1650. B. S. A Hundred shall not be charged for a robbery committed within it in the night because hue and cry cannot be made in
Car. B. r. A Tenant that is within the distress of a Lord of a Mannor or Leete ought not to serve upon a Jury in a Cause that concerns the Lord Mich. 23. Car. B. r. For it shall be presumed he may not be indifferent in regard of fearing to displease his Lord. After a Juror is sworne he may not go from the Barr untill the evidence be given and the directions of the Court for any cause whatsoever without leave of the Court and although he have leave he must have a keeper with him Pasc 24. Car. B. r. If a Juror be challenged and the Challenge entred by the Secondary that Juror cannot be after that sworne as a Jury man to try that Cause wherein he was challenged viz. at that tryall 24. Car. Pasc B. r. Q. Whether before the Challenge entred he may be sworn Where a tryall is to be for a thing that concerns the Under-Sheriff there the High-Sheriff shall retorne the Jury Trin. 24. Car. B. r. For here shall be no favour supposed but if the tryall concerne the High-Sheriff the Vnder-Sheriâ—… shall not retorne the Jury for there may be presumed to be favour for the servant depends upon the master and not the master upon the servant The Jury ought not to have any writting with them when they go from the Barr which hath not been proved although such a writting hath been given in evidence unto them Mich. 24 Car. B. r. The Jury may finde matter of Record if they do know it of their own knowledge Pasc 1650. B. S. 10. Maii. For a mans own knowledge is more certain than any evidence can be given There are three grand-Juries retorned every Term to serve in this Court every Jury consisting of 16 17 18 19 or 20 Jurors or more Though a man be very aged yet if he be of an able body and not infirm he is not to be excused from serving upon the grand Jury One _____ Butler a man of 72. years of age was denied by Rolle Chief Justice to be excused to serve because he was of an able body Hill 1651. B. S. One that hath no Freehold in the County or is a Constable or a Surveyor of the high-way or is a sequestred person are not thereby to be excused from serving upon the grand Jury Pasc 1651. B. S. By Rolle Chief Justice But Q. of a sequestred person The Jurors that appear at a tryall shall not have their charges allowed them if the Cause be not tryed for want of Jurors Pasc 1652. B. S. For their apparance is to no benefit of any body When a Juror is withdrawn he is strook out of the panell by the Secondary Upon a generall issue the Jury may finde a Record but not upon a nul tyell Record Pleaded 1651. If but eleven of the Jury be sworne if the twelfth man do stand by and hear all the evidence that was given to his fellowes he may be sworne afterwards and pass upon the tryall By Rolle Chief Justice 1654. Pasc B. S. For the Jurors are sworne to try the issue upon the evidence they shall hear so that it seems the time of being sworne is not materiall whether before or after the evidence Q. The Jury may take Depositions taken in Chancery and exemplified there given in evidence to them from the Barr with them but if they be not exemplified they may only look upon them in Court but not take them with them out of the Court 1654. B. S. For to see them is no more then to hear them read Issue Every Issue is to be joyned in such a Court that hath power to try it otherwise the Issue is not well joyned 21. Car. B. r. For if the Cause cannot be tryed the issue is fruitless If an Action of Trespass be brought against two for entring into the Plaintiffs Land and one of them pleads that the Land is his freehold and the other that he entred into the Land by the commandment of him that pleads it is his freehold here is to be but one Issue joyned 21. Car. B. r. For but one of the Defendants claimes an interest in the Land and the other justifies but as a servant unto him and if the tryal pass for him that claimes the interest there is no colour of Action to be maintained against the other If there be a Demurrer to an evidence and the party whose evidence is demurred unto do plead to the demurrer and joyn Issue with the Defendant upon it this Issue must not be joyned upon a matter in fact in the evidence but that must be agreed or else the Issue is not well joyned for the Court are not to try matter of fact for that would be for them to give a verdict Mich 22. Car. B. r. Whereas the Court are only to declare the Law whether admitting that all the matter given in evidence by the Plaintiff be true it doth prove the Issue in question or not By the Rules of the Court if the Plaintiff will not try his Issue after it is joyned in such time as he ought by the course of the Court to do the Defendant may try it by Proviso if he will Hill 22. Car. B. r. That he may free himself if he can of the danger and trouble he may be subject to by the depending of the Action brought against him and to recover his dammages for his unjust vexation A judgment may be entred as to one part of an Issue and a nolle prosequi to another part of the same Issue Pasc 23. Car. B. r. This is only where the Issue may be divided Where there is a demurrer to part of an Issue and the other part of it remains to be tryed by a Jury the Tryal of it may be either before or after the arguing of the Demurrer at the Election of the Plaintiff Pasc 23. Car. B. r. For the Demurrer and the Issue have no depondancy one upon the other Every issue ought to be joyned upon the most material thing in the Cause depending that all the matter in question between the parties may be tried Hill 23. Car. B. r. For else the triall will prove to little purpose If an Issue be once joyned between the parties this Issue cannot afterwards be waved except both parties do consent unto it although the Issue be but in paper and not engrossed in parchment Trin. 24. Car. B. r. Therefore it is good to be well advised before the Issue be joyned The place ought not to be made part of the Issue in a transitory action Trin. 24. Car. B. r. For the place is not material as it is in a real and mixt action An immaterial Issue joyned which will not bring the matter in question to be tried is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader 26. Jan. Hill 1649. Pasc 1650. 4. Maij. B. S. For this is matter of substance For if there was no Issue there could be no Verdict
Peace all the County over The Peace was prayed upon Articles read in Court against one one of which Articles was that the party against whom the peace was prayed did threaten that he would burn down the house of him that prayed the peace and upon that Article it was granted Hill 21. Car. B. r. To grant the Peace against one is to grant that the process of the Court may issue out of the Crown Office against him to bring him into the Court to finde suerties to be bound with him in a recognisance to the King to keep the peace towards all the Kings Liege people but more especially towards the party that prayes the Peace A Justice of Peace ought not to binde any person to the good behaviour upon a general information and if the party accused doth refuse to be so bound and find Suerties to be of good behaviour yet the Justice of Peace ought not by the Law to send the party to the Goal for refusing it Pasc 23. Car. B. r. For he that desires to have one bound to the good behaviour must shew some particular miscarriages wherein the misbehaviour of the party consists for accusatio generalis est nulla for what defence can be made to it The Justices of Peace ought by the duty of their places to attend at the Assizes and at the publike Sessions of the Peace held for the County whereof they are Justices Pasc 23. Car. B. r. The Commission of Oyer and Terminer doth extend to those that are Justices of the peace Pasc 23. Car. B. r. Q. Whether it be generally so A Justice of Peace may actually Arrest and commit the party to prison that doth a Felony in his own view without any warrant made under his hand and seal to arrest him but if there be an information made to a Justice of Peace that one hath committed Felony there the Justice must make a Warrant under his hand and seal to Arrest the Felon and may not do it by word of mouth 1650 B. S. It is usual in the Capital Office if one be bound to the peace there to keep him bound to the peace during his life But by Rolle Chief Justice there is no reason why this should be done 13. Maii. 1651. B. S. For the party may be come reformed and so no cause to continue him bound and his suerties for so long a time A Justice of Peace may require a Bond or Recognizance of a thousand pound of one for his keeping the peace if he see cause for it in regard that the party to be bound is a dangerous person and likely to break the Peace and to do much mischeif Pasc 1652. B. S. This Court will bind one to the Peace if they see cause to do it although there be no Oath made by any person against him that is to be bound that he goeth in fear of his life of him Trin. 1652. B. S. For the Oath of a party is but to manifest unto the Court that there is just cause why the party should be bound unto the Peace and therefore if the Court be sufficiently satisfied without such an Oath that there is good cause to bind the party to the peace they may do it without such an Oath If one do take his Oath in this Court against another that he doth go in fear of his life of him and prayes the peace against him he against whom the peace is thus sworn and the Peace prayed ought to be committed to prison if he do not find Suerties to keep the peace although there be no Articles exhibited and sworn against him 1652. B S For there appears sufficient cause by the Oath for the Court to do it though there be no Articles exhibited as the usual course is to do Issues The Court doth use upon a motion to order that good Issues be set upon a Sheriff or other Officer for not bringing in the body of the party into Court upon a Writ of Habeas Corpus directed unto him or for not making a good retorne but they will not order-what summe shall be set upon him but leave that to be done according to the custome of the Court Hill 22. Car. B. r. For where things are to go on in a common way of practice there the Court will not make a special Rule in the Case When Issues are set upon a Sheriff or other Officer by the Court for the neglect of his duty and afterwards upon some reasons shewed to the Court why they should be taken off or discharged the Court doth discharge them the Roll ought to be marked to shew they are discharged otherwise Process may issue out to levy these Issues notwithstanding they are discharged by order of Court Hill 22. Car. B. r. For as the Issues do appear upon the Record so they cannot be discharged but upon record If an Issue be not well joyned it is helped after a verdict by the Statute of Jeofailes but if there be no Issue joyned and a Verdict passeth this is erroneous and is not helped by the Statute Mich. 23. Car. B. r. But there must be a repleader to the intent there may be an Issue joyned upon which a tryall may be had Judges The Judges are to have a paper of the Causes which are to be spoken to in Court sent unto them particularly at five of the Clock in the evening the day before they are to be spoken to in Court Hill 22. Car. B. r. That they may have time to prepare to speak to them Justices of Oyer and Terminer cannot proceed to try persons endicted upon endictments not preferred before themselves but the Justices of the Goale-delivery may Trin. 23. Car. B. r. For the Justices of Goale-delivery have a more generall Commission for proceeding against malefactors than the Commissioners of Oyer and Terminer have The Judges of the Common Law have no ordinary jurisdiction to examine Witnesses in their Chambers but by the consent of the parties and by the Rule of the Court they may do it and there useth not to be any cross examinations of the party but the course is to put the Depositions in writing on both parts and then the Judg doth examine the parties upon their severall oathes whether their Depositions be true Mich. 23. Car. B. r. Where there do speciall and doubtfull matters arise upon the reading of a Record so that the Court is not for the present satisfied of the Law the Attorneys on both sides ought to prepare Books viz. Copies of the Record for the Judges at the Clyents equall charge that the Judges may upon view of the Record the better consider of the matters in dispute For it is the course for the Attorneys to make their Clyents for to pay for such Books in all such Cases although they never make any for the Judges By Rolle Chief Justice The Judges of this Court declared that they would not sit longer in Court then till one a clock in the
which they proceed upon in the Common Pleas. Mich 1649. B. S. Mareschall THe Mareschal of the Mareschalsea of this Court is intended to be alwayes in Court while the Court is sitting 21. Car. B. r. For it is his Office to be alwayes attending upon the Court to execute his Office in relation to the Court upon all occasions that may fall out Monstrance None shall be compelled to shew a thing in pleading which by common intendment they cannot have knowledge of 22. Car. B. r. 38. H. 6. f. 3. Motion to the Court. Monday is a special day for motions in this Court by the ancient course Mich. 22. Car. B. r. Yet motions are made upon any day as the businesses of the Court of the day will permit One ought not to move the Court for a thing against which they have delivered their opinion Trin. 22. Car. B. r. But ought to rest satisfied with the Judgement of the Court. If moneys be upon a motion ordered to be brought into the Court and are accordingly brought in they ought not to be taken out of the Court but upon a motion and rule of the Court made therein Hill 22. Car. B. r. If any thing be moved to the Court upon a Record if the Record upon which the motion is made be not in Court when the motion is made the Court will make no Rule upon such a motion Hill 22. Car. B. r. For the Court will be satisfied by the Record whether the matter of the Record upon which the motion is grounded be so as is suggested by the Councell and will not rest upon suggestions made at the bar If there be divers Rules of the Court made in a Cause and the party intends to move upon these Rules he must produce the Rule that was last made in the Cause and move upon that Pasc 23. Car. B. r. Yet it is necessary also to have all the Rules made in the Cause to satisfie the Court how the Cause stands in Court and how it hath been proceeded in from time to time and how the Rules depend upon one another One party ought not to surprise another by a motion in Court but he ought to move in such convenient time that the other party against whom the motion is made may have time to be heard and to make his Defence Pasc 23. Car. B. r. It is against the Rule of the practice of this Court to move matters in Law upon the last day of any Term except it be where the Case is peremptory or of necessity to be moved then Pasc 23. Car. B. r. Because the other Party cannot have time to make his Defence and that day is also a day appointed for motions One ought not to move the Court for a Rule for a thing to be done which may by the common Rules of practice of this Court be done without moving the Court for it much lesse ought the Court to be moved for the doing of that which is against the common Rules of practice of the Court. 24. Car. B. r. For the Court is not to be troubled with nor the Clyent put to the charge of needless motions nor of motions not to be granted and the former sort of such kinde of motions do savour of ignorance and the latter of too much presumption When a thing questionable between the parties is to be moved to the Court for the setling thereof he that intends to move it must give the adverse party timely notice of the time as near as he can when he will move it Mich. 1650. B. S. And upon what he intends to move that he may be prepared to answer the motion at the time when he moves for the quicker dispatch of businesses If a Rule of Court was grounded upon an Affidavit he that will move the Court to make the Rule void must when he moves produce the Affidavit in Court Hill 1649. 22. Feb. B. S. That the Court may be informed upon what grounds the Rule was made and whether there be cause shewed upon the motion sufficient to induce them to vacate the Rule It is against the course of practice of the Court for any person to make a motion in his own Cause 24. Maii. Pasc 1650. B. S. So said in one Thurston and Masons Case viz. for a Counseller to do it When the Court doth grant a thing to one upon a motion which was in the power of the Court either to grant it or not to grant it the party that hath his motion so granted unto him is by the rules of the Court to pay 12d to the box for it 1650. B. S. Which money is given to the prisoners of the Vpper-bench prison as it is said It is not usual to move for a Trial at the Bar upon the last day of the Term. 2. Julii 1650. B. S. Nor for the Secondary to make a Report nor for a Prehibition nor to vacate a Judgement or such like cases except both parties be in Court and are contented with the motion and prepared to speak in it The three last dayes of the Term if it be not an Issue Term is appointed to hear motions only and not other businesses except they be peremptory or upon other special occasions But if it be not an Issue Term then the two last dayes are only for the hearing of motions 30. Jan. 1650. B. S. The Issue Terms are Hillary Term and Trinity Term and they are so called because though there be Issues joyned in every Term yet not so many by much as in these Termes in regard of the Causes which are to be tried all England over at the Assizes which do follow in the next Vacations after the said Terms viz. the Lent-Assizes and the Summer-Assizes as they are commonly called By Glyn chief-Chief-Justice it is not the custome of the practice of the Common Pleas for a Serjeant at Law to move for a Clark of the Court and afterwards for his Clyent Mich. 1655. B. S. For it seems it is not intended there that he doth move without a Fee for a Clark of the Court and therefore if he should be so heard he would have a double motion at one time which no Court doth allow Manslaughter A grand Jury may finde a Bill of Manslaughter to be Billa vera per infortunium Pasc 23. Car B. r. Mortgage If Lands be Mortgaged to one the interest in Law in these Lands is in the Mortgagee before the forfeiture of them Mich. 23. Car. B. r. For he hath purchased the Lands upon a valuable consideration as the Law will intend and though the Mortgagee may redeem them yet it is not known whether he will do it or no For it is in his power to do it or not to do it and if he do it not then the Estate is absolute in the Mortagee without any other act to be done to passe the Estate Messuage One Messuage cannot be apurtenant unto another Messuage Pasc 24. Car. B. r. For
a Messuage is an entire thing of it self and cannot be apurtenant to another thing Non-sute UPon a Trial when the Jury comes in to deliver in their Verdict and the Plaintiff is called to hear the Verdict If he do not appear after he is thrice called by the Crier of the Court he is to be Non-sute and the Non-sute is to be recorded by the Secondary by the direction of the Court at the prayer of the Defendants Councell Hill 21. Car. B. r. When a Plaintiff is Non-sute if he will again proceed in the same Cause he must put in a new Declaration and cannot proceed upon that Declaration whereupon he did proceed in the Cause wherein he became Non-suite 22. Car. B. r. 16. Ap. 1650. B. S. For by his being Non-suit it shall be intended that he had no such cause of Suite as he deelared in and so that declaration is void The King of Spain hath been Non-suit in England Mich. 22. Car. B. r. And this stands with reason for if a foraign Prince will take the benefit of the nationall Laws here he must proceed and stand to the Rules and orders of the Court wherein he prefers his Action If the Plaintiff will not proceed upon his Declaration as he ought to do by the Rules of the Court the Defendant may Non-suit him Mich. 1649. B. S. Although upon a tryal the Plaintiff be called to hear the Verdict and do not appear to hear the Verdict when he is called and thereupon the Court direct the Secondary to record the Non-suite yet if afterwards the Plaintiff do appear before the Non-suite be actually recorded the Court may proceed to take the Verdict Trin. 1651. B. S. For it is not a Non-suit untill it be recorded by the Secondary and then it is made part of the record and is in the nature of a Judgement against the Plaintiff If the Plaintiff be not ready at the tryal with his Record when the Jury is called the Court will call him Non-suit By Rolle Chief Justice 1651. B. S. For it shall be intended he will not proceed in his cause any further Nolle Prosequi A Nolle Prosequi is where there are divers Issues joyned between the Plaintiff and the Defendant and the Plaintiff enters upon the Roll a Nolle Prosequi That is to say that he will not proceed upon one or more of the Issues joyned and yet he may proceed to tryall upon the rest of the Issues Hill 23. Car. B. r. Nusance A Nusance made in a Port or Haven by the sinking of a Ship there ought to be removed by the owner of the Ship and if he do it not he may be endicted for it as for making a Common Nusance 21. Car. B. r. For it is prejudicial to the Commonwealth in hindering of Trade An Action upon the Case ought to be brought against one that makes a private Nusance and he ought not to be endicted for it Pasc 23. Car. B. r. For Endictments ought to be in the Kings name and do presume to be preferred for offences done against the publike A common Nusance may be abated or removed by those persons who are prejudiced by it Pasc 23. Car. B. r. Nomine Poenae A Nomine Poenae for the non-payment of a Rent ought to be legally demanded if the Rent be behind as well as the Rent is to be demanded before the grantee of the Rent can distrain for it 21. Car. B. r. For the Nomine Poenae is of the same nature as the Rent is and is issuing out of the Land out of which the Rent doth issue Notice The Plaintiff and Defendant are both bound at their perill to take notice of the general Rules of practice of this Court but if there be a special particular Rule of Court made for the Plaintiff or for the Defendant he for whom the Rule is made ought to give Notice of this Rule unto the other or else he is not bound generally to take notice of it nor shall be in contempt of the Court although he do not obey it Pasc 24. Car. B. r. Mich. 1649. B. S. For general rules are the general practice of the Court whereof every one must take Notice of that hath to do there but particular rules are made upon particular and extraordinary matters happening in the proceedings upon the motion of one of the parties made to the Court of which the other may be ignorant The Court is bound Ex Osicio to take Notice of all matters which do appear upon the Record depending before them but of matters Dehors viz. to search the Almanack for dayes and to compute times mentioned in the Record they are not bound Ex Oficio to do it 21. Car. B. r. 24. Car. B. r. Q. The Court is not bound to take Notice of the new stile but of the old English stile 21. Car. B. r. For the old is that whereby all accounts in the Common Law are guided and not by the new which is foreign and goes ten dayes before the English stile or account The Plaintiff ought to give the Defendant eight dayes Notice exclusive before he executes his Writ of Enquiry of Dammages or else the Court will quash it although he have executed it and put him to a new Writ of Enquiry upon the motion of the Defendant made to the Court of his want of such Notice and proof thereof by Affidavit Trin. 22 Car. B. R. and Pasc 1652. B. r. Exclusive is meant that the day upon which the Notice is given is not to be one of the eight dayes but the Writ is to be executed upon the ninth day and so long Notice is to be given that the Defendant may have time sufficient to defend himself by his Councel and Witnesses upon the evidence given against him before the Sheriff and the Jury by the Plaintiff The Common Law doth not take Notice of the intentions of the party to do any unlawful Act except it be in case of high treason Trin. 22. Car. B. r. For mans Law is to regulate the words and Actions of men and not the thoughts of which it cannot have conusanse But Gods Law extends to the thoughts This Court is to take Notice of a general Ordinance of Parliament viz. such a one as concerns the Publique but not of a Parliament Ordinance which concerns some particular persons Mich. 24. Car. B. r. Except such particular Ordinance do appear before them by pleading or otherwise If a Declaration be put into the Office although it be not filed yet is the Defendants Atturney bound to take notice of it Mich. 22. Car. B. r. For it is the Duty of the Plaintiffs Atturney onely to put the Declaration into the Officer and the Officer in the Office is to file it and though it be not filed yet may the Defendants Atturney take a Copy of it None is bound by the Law to give Notice to another of that which that other person may otherwise inform himself
a Trial there he must give the Defendant new Notice but if such Trial be to be the next Term after the reference it is not necessary to give new Notice of it for it may be tried by proviso Trin. 1652. B. S. If one give Notice of a Trial to the Defendant and yet doth not try his Cause at the day appointed but do defer his Trial for longer time than one Term after If after that he will try it he must give a whole Terms Notice before his Trial but if he try it the next Term after there needs no new notice For if the Plaintiff try it not than the Defendant may try it by proviso Trin. 1652. B. S. If an Action be laid in London and the Defendant do live fifty miles off the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes Notice of the Trial before he proceed to it By Rolle Chief Justice In regard of the distance of place it is fit he should have time for his travel and to prepare for his Defence If the Defendant will try the Cause by proviso he ought to give the Plaintiff due Notice that he will try it and may not take advantage of the Notice formerly given by the Plaintiff 1654. B. S. Because it lies in the Election of the Defendant either to try the Cause by proviso or not to try it And the Plaintiff cannot presume he will try it being Defendant in the Action except the Defendant give him Notice that he will try it If one give Notice to another that he will move the Court in one thing and tell him in what and at the time he moves the Court in another matter and not in that whereof he gave Notice that he would move the Court in This is not good Notice of the motion but the Court will give the partie further time to answer the motion By Rolle Chief Justice For by such deceitfull Notice the party concerned cannot prepare to answer the motion Notice given to the party concerned by the Councel in the cause that he intends to move the Court against him at such a time is not to be taken by the Court for good Notice upon the bare averment of the Councel at the Barre that he gave such Notice but if the Councel will make Affidavit in writing that he gave such Notice the Court will allow it This Court is not bound ex officio to take notice of private Orders made by the Councel of State By Rolle Chief Justice For they are matters but of particular concernment and not matters of Law or publique businesses whereof as Judges they are to take Notice Notice given in the night of a robbery by the party robbed with an intent that Hue and Cry should be made after the Fellons is good Notice according to the Statute if it be given in convenient time after the robbery was done By Rolle Chief Justice It is not necessary to give Notice of a robbery to the Vill that is next within the Hundred where the robbery was done and unto that place where it was done For if the next Vill be out of the Hundred yet Notice given there is good Notice according to the Statute of Winchester Non omittas If the Bailiff of a Liberty do not retorn a Warrant made upon a Latitat out of this Court to arrest one within the Liberty directed unto him the party that is prejudiced by his not making a retorn of it may by the course of this Court have a Writ called a Non omittas directed to the Sheriff of the County in which the Liberty lies commanding him to enter into the Liberty and to make Execution of the Writ viz. the Latitat 21. Car. B. r. For Liberties must not be priviledged to hinder or delay the Execution of Justice and if they or their Ministers do neglect their duties herein this Court may intermeddle notwithstanding their priviledges to put the process of this Court in Execution that the Law may receive no obstruction by them Negative preignans A Negative preignans is when two matters are put in Issue in one plea. Hill 23. Car. B. r. And this makes the plea to be naught because the Plaintiff cannot tell in which of these matters to joyn Issue with the Defendant for the incertainty upon which of the matters the Plaintiff doth insist upon Oath OFficers of Justice are by the Common Law bound to take an Oath for their due Execution of Justice and if they refuse to take such an Oath they may be imprisoned for refusing to take it Trin. 22. Car. B. r. So carefull is the Law to have Justice done to all parties One that is to testifie on the behalf of the King upon an arraignment of a Felon cannot be examined upon his Oath for the prisoner against the King but he may be examined without giving him his Oath Mich. 22. Car. B. r. He is suffered to give his testimony for the prisoner against the King and without his Oath in favour of life The Court will rather believe the Oath of the Plaintiff than the Oath of the Defendant if there be Oath against Oath because it is supposed that the Plaintiff hath wrong done him and that the Defendant is the wrong doer and may therefore be rather supposed to swear falsly to protect himself from the Law than the Plaintiff that is forced to flie to the Law to obtain his right Pasc 23. Car. B. r. One that is to be a Witness in a Cause may have two Oaths given him one to speak the truth to such things as the Court shall ask him concerning himself and the other to give testimony in the Cause in which he is produced as a Witness The former is called an Oath upon a Voyre dire Pasc 23. Car. B. r. Obligation One ought not to be admitted to be a Witness to prove an Obligation or other Deed which he takes in the name of another 21. Car. B. r. For if he might be so admitted this would be upon the matter to suffer him to be a Witness to prove a Bond or Deed made to himself which is not reasonable If a Sheriff take a Bond of the Defendant for his apparance to the Action upon which he is arrested by the Sheriff at the Plaintiffs sute and the Defendant doth not appear accordingly and according to the Condition of the Bond the Plaintiff may by the leave of the Sheriff sue this Bond in the Sheriffs name and proceed to Judgement upon it against the Defendant but without his leave it cannot be done but it is at the election of the Plaintiff to sue this Bond or not for he may proceed if he please by amercements upon the Sheriff untill he make a retorn of the Writ directed unto him Hill 22. Car. B. r. For the Bond is only to save the Sheriff harmless against what may befall him if the Defendant do not appear and doth no way concern the
satisfaction the Law will not intend that he is damnified and so he hath no Cause of Action When the Court doth order one to plead presently it is to be understood that he shall plead in such convenient time after as the Court shall judge reasonable Mich. 22. Car. B. r. The Defendant may amend his Plea although it be three Terms after it was pleaded if he will pay Costs Mich. 22. Car. B. r. But it must be by leave of the Court because it is against the common Rules of practice Although a Plea do contain divers matters in it upon which an Issue may be taken yet this Plea is not double if the Plea could not have been good without alleadging all those matters in it Mich. 22. Car. B. r. For though the Law doth not allow captious Pleas yet it doth not deny the Defendant to plead all such matters that his Case affords for his just Defence If the Defendant Plead an insufficient Plea and there is a good Issue joyned upon that Plea and a Verdict given upon that Islue for the Defendant the Plaintiff shall not afterwards take advantage of the insufficiency of the Plea Mich. 22. Car. B. r. For it was his own sault to joyn Issue upon it when he might have demurred upon it Where one Pleads Letters of Administration which are granted by such an ordinary whereof the Law doth take notice he may Plead that they were granted unto him debito more but if they be granted by an inferior ordinary of whom the Law doth not take notice of he must Plead that they were granted unto him per ordinarum illius loci Mich. 22. Car. B. r. That the Court may the better Judge whether they be well granted in regard of the power of the ordinary that granted them or not If the Plaintiff do alter his Declaration after the Defendant hath Pleaded to it the Defendant may alter his Plea Mich. 22. Car. B. r. For by the amendment of it it may be so altered in matter that it mâ—y require a different answer from what was formerly Pleaded and in that case if he should not amend his Plea he might be triced for want of a good Plea In an Appeal brought all the Pleadings ought to be in French Mich. 22. Car. B. r. Because the Statute which enacted that all Pleadings should be in Latin extends not to this Action and so the Pleadings therein are to be in French as all Pleadings were before that Statute But now by the late Act they are to be in English Q. Tamen Whether that Act do extend to this Action or onely to such Pleas as were formerly in Latin When the Court doth order that the Defendant shall Plead it is intended that he must Plead an Issuable Plea Mich. 22. Car. B. r. For the rule is made to quicken the Defendant that the Plaintiff be not delayed by his Dilatoriness and if he might Plead a Dilatory Plea and not issueable the rule would be to no purpose The Court will not upon a motion rule the Defendant to Plead peremptorily by a day before the common rules of the Court for Pleading be out but then they will Mich. 22. Car. B. r. For till then it cannot be said that the Defendant hath delayed the Plaintiff If a Scire facias upon a Recognizance be brought against an Infant he cannot Plead Infancy or nonage to it but he must bring his audita querela and set forth his case therein and thereby his age shall be tryed by the Courts inspecting of him and not by a Jury Hill 22. Car. B. r. If the Plaintiff do release his cause of Action to the Defendant yet the Court will not upon a motion stop the Plaintiffs proceedings in the Action but the Defendant must Plead this release Hill 22. Car. B. r. In bar of the Action for the Court cannot take notice of the release upon a motion It is not a good Plea to Plead a Paroll agreement in bar of an agreement made by indenture between the parties Hill 22. Car. B. r. For an agreement by Indenture is a more solemn agreement and of a higher nature then a Paroll agreement and must be discharged by some act of as high a nature as it is A double Plea is such a Plea that one Issue cannot determine all the matter issuable that is contained in it and also where the Defendant is put to a double answer Hill 22. Car. B. r. And such a Plea is not a good Plea If the Defendant do Plead a frivolous Plea to the intent to delay the Plaintiff and to hinder him from going to a tryal the Court will upon the Plaintiffs motion order the Defendant to plead such a Plea as he will stand to or else to accept of a Demurrer from the Plaintiff unto his frivolous Plea Hill 22. Car. B. r. For it is the Justice of the Court to speed the proceedings in Law and to bring suits to determination as soon as with conveniency and Justice to all parties it may be done By the course of practice in the Court of Common Pleas the principle in a Bond may Plead for his Suerty without his leave or knowledge and acknowledge a Judgement upon the Bond but this Court doth judge it hard practice and will not allow it to be don here Pasc 23. Car. B. r. Now it is said they do not allow it there The practice seemed hard in this respect that the Suerty who intended onely to be bound that the principal should pay the Debt should by the falsity of the principal be presently liable to an Execution for the Debt and be enforced to pay it Where the Defendant may plead the general Issue he ought so to Plead that the whole matter in question may come to be tryed Pasc 23. Car. B. r. For else the Plea is not good because it tenders not such an Issue whereupon the cause depending may be determined which every Plea ought to do for to Plead otherwayes is to no purpose If one bring an Action upon a contract it is a good Plea in bar for the Defendant to Plead quod exoneravit se de Contractu Pasc 23. Car. B. r. For it sounds all one as if he had Pleaded that he hath performed the agreement A Concord by Paroll is no good Plea in bar to an Action brought upon a single Bill which is not penall Pasc 23. Car. B. r. For bare words are not of so great force as agreements put in writting Every Plea must be Pleaded either in bar to the Action brought or in abatement of the Writ upon which the Action is framed otherwise it is but a discourse and not a Plea because the Plaintiff cannot take an Issue upon it and therefore if the Plaintiff do demur upon it and his demurrer be adjudged good he shall have Judgement against the Defendant Pasc 23. Car. B. r. Anciently all Pleadings were in French then by the Statute it was Enacted they should be in
a Procedendo that the cause may be removed into London that the Custome may be tryed there for it cannot be tryed here and so if a Procedendo should not be granted the cause would remain untryed and the party that brought the Action would be without remedy Hill 22. Car. B. r. After the Defendant hath filed Baile in this Court a Procedendo ought not to be granted much less after issue is joyned in the cause Pasc 23. Car. B. r. For by admitting of the Bail the Plaintiff hath admitted the jurisdiction of the Court and it is then too late to move for a Procedendo It is not necessary that a Procedendo do agree in form with the Habeas Corpus by which the cause was removed into this Court but it is sufficient if it do agree in the matter with it Trin. 24. Car. B. r. If the Defendant hath put in Bail in this Court upon the removal of the cause hither by Certiorari or Habeas Corpus cum causa if afterwards the Bail be disalowed by the Court if the Defendant shall refuse to put in better Bail such as the Court shall approve of a Procedendo may be granted to the Plaintiff to remove the cause back again to try it where the Action was first said Mich. 24. Car. B. r. For disalowing of the Bail makes the Defendant to be in the same condition as if he had put in no Bail If a Certiorari to remove a cause be returned before a Judge and not in Court and their follows no proceedings in the cause after the Certiorari returned if the party who is concerned will move for a Procedendo he must move for it before the Judge before whom the Certiorari was returned and not in the Court whether the cause is removed Mich. 1649 B. S. Because the Judge hath been formerly acquainted with the return of the Certiorari and may have better knowledge why it was granted and therefore the Court will not intermedle to undo what the Judge hath done Practice If the Atturney for the Plaintiff do tell the Defendants Atturney that he is content to stay for a Plea till such a time and yet doth in the mean time enter Judgment for want of a Plea this is not fair practice but if this be made to appear to the Court the Court will vacate the Judgement and force him to accept of a Plea Hill 22. Car. B. r. For the Law will not countenance fraud and falshood in the proceedings thereof but loves plain and fair practice It is not fair practice for the Defendants Atturney to Demur to the Plaintiffs Declaration without probable cause but onely to gaine time to plead Trin. 23. Car. B. r. For this is apparent cause of delay Peace and Justice of Peace A Justice of Peace in one part of York-shire is not a Justice of Peace throughout the whole County but onely in that division of York-shire where he is authorised by his Commission to be a Justice Hill 22. Car. B. r. This is in regard of the large extent of that County for in other Counties a Justice of Peace in every County is a Justice of Peace throughout the whole County The Peace was granted against one upon an Article sworn in Court amongst others that he did threaten to burn down the Plaintiffs house Hill 22 Car. B. r. For such menaceing words are accounted to be a breach of the Peace and such persons are dangerous persons in the Commonwealth and to be restrained from doing mischief A Justice of Peace ought not to binde a man to his good behaviour upon a general Information and if the party shall refuse to put in sureties for his good behaviour upon such an information yet the Justice ought not to send him to the Gaol for his refusal Pasc 23. Car. B. r. But the information must be particular and shew wherein the misbehaviour consists for accusatio generalis non est applicabilis personae particulari It is the duty of Justices of Peace to attend duly at the quarter Sessions and at the Assizes held for the County where they are Justices Pasc 23. Car. B. r. For there are the most important businesses which concern the Peace and Government of the County managed The Commission of Oyer and Terminer doth extend to Justices of the Peace Pasc 23. Car. B. r. A Justice of Peace may himself actually arrest and commit a Felon for a Felony done in his own view without any Warrant made to another to do it but he may not command one to be apprehended for Felony upon a bare information made against the party but by a warrant under his hand and Seal and not by Paroll Pasc 23. Car. B. r. It is the course used in the Capital Office to continue one that is there bound to the Peace to be so bound during his life but by Rolle Chief Justice this is not reasonable Pasc 1651. B. S. 13. Maii. If the person that is to be bound unto the Peace be a dangerous person and the cause for which he is to be bound do require great security a Justice of Peace may require him to find extraordinary sureties to be bound with him and in what sum he shall judge the cause doth require Pasc 1652. B. S. If this Court do see cause to bind one to the Peace they may do it although no person doth make Oath that he goes in fear of his Life of the party Pasc 1652. B. S. For such Oath is but evidence against the purty that there is cause to bind him to the peace and if the Court be satisfied that there is cause to do it without such evidence the not having of such an Oath is no hindrance unto them to do it If one do swear the Peace in Court against another that is doth make Oath that he goes in fear of his life or corporal hurt of him the party against whom this Oath is made ought to be committed if he do not find sureties for the Peace although there be no Articles exhibited and sworn against him Mich. 1652. B. S. Priviledge A Committee man of Parliament that is not a Member of the Parliament is not Priviledged from serving upon the grand enquest Hill 21. Car. B. r. A Clerk of this Court is not to be compelled to lay his Action out of that County where this Court doth sit Mich. 22. Car. B. r. By reason of the constant attendance he is bound unto in this Court No Priviledge is to be allowed to one that hath an Indictment preferred against him although he be a Peer of the Realm Mich. 22. Car. B. r. For an Endictment is at the sute of the King and against him no Priviledge is to be allowed One that was coming unto this Court to attend upon his cause was arrested as he was coming and was forced to put in Bail but upon a motion and making it so to appear unto the Court he and his Bail were both discharged Mich. 22.
Car. B. r. And the party that arrested him had been also punished had he not pleaded that he knew not that the party came about his business depending in the Court. One may have a Priviledge in the Land of another by prescription although he hath no title to the Freehold or soil Pasc 23. Car. B. r. For although he now have it by prescription it might arise originally by grant and whatsoever lies in grant may be claimed by prescription One that is Priviledged in this Court ought not thereby to claim his Priviledge to have a tryal at the Bar for to try the title of Lands which he claims in reremainder Trin. 23. Car. B. r. For it is incertain whether the remainder may fall whilst he continues a Priviledged person and for the present he claims no present interest in the Lands Nay though he had a present claim to them yet he ought not to be so Priviledged if the Lands in question be not of a great value or else the title very difficult to be tryed and in such cases any other person though not Priviledged may have a tryal at the Bar. A Priviledged person shall not be allowed his Priviledge upon a motion for it to the Cours but he must appear and plead his Priviledge and upon his pleading it he shall be allowed it Mich. 23. Car. B. r. A Philisers Clerk did claim to be Priviledged in this Court but was denyed it Mich. 23. Car. For though the master may be Priviledged yet the Court takes no notice of the servant The Lord Major of the City of London is Priviledged from all Actions during his Maioralty in regard of his Office except it be for Felony or Treason or Actions which concern Free-hold Pasc 24. Car. B. r. For these are matters of a high nature and it much concerns the Publicke to have speedy Justice to be done in them A Member of Parliament is Priviledged as well in his Lands and goods as in his person By Rolle Chief Justice Mich. 24. Car. B. r. In the Case of the Lord Moon for by being disturbed in any of them he is hindred in serving of the Commonwealth An Atturney of this Court may Plead his Priviledge here after he hath made his defence in the cause in another Court. Pasc 1650. B. S. 4. Maii. For his pleading there doth not take away his Priviledge here but doth onely dispence with it for that time The wife of an Atturney of this Court cannot claim her Priviledge as his wife for the Priviledge is inseperabley annexed unto his person Pasc 1650. B. S. 7. Maii. But if she be arrested her husband must put in Bail for her An Atturney of this Court that is sued as an Executor is not to be Priviledged for he is sued in the right of the Testator and not in his own right Pasc 1650. B. S. 7. Maii. The Prayer of Priviledge is not properly a plea for a Priviledged person did anciently demand his Priviledge by Writ but of latter times the party hath been admitted to his Priviledge upon his prayer to the Court. By Latch Apprentise 1654. B. S. Party and Privy Where one desires to be made a party to defend the title of the Land in question in an ejectione firmae the Court will grant it so that he will confess Lease Entry and Ouster Pasc 23. Car. B. r. In Prince and Warners Case 2. Maii. 1648. But now that rule is enlarged for he must now confess Lease Entry and actual Ouster and must not except against the Jury for want of Hundreders but insist onely upon the tryal of the title and if at the tryal he do not all this then Judgement is to be entred against the Lessors owne ejector Purchase An Alien cannot purchase Lands in England because by this means the Realm would be impoverished by transporting the treasure out of the Realm into foreign Countries and by putting thereby part of the Lands of this Realm that is to say the Lands Purchased by the Alien under the power of a foreign prince Pasc 23. Car. B. r. Praescriptions One cannot prescribe to have two several wayes by one joynt Prescription but he must make several Prescriptions for them Trin. 23. Car. B. r. Two Tenants in Common cannot Prescribe for one Warrein Trin. 23. Car. B. r. That is severally for they cannot both have it severally A Copy-holder for life cannot Prescribe against his Lord by reason of his Copy-hold but a Copy-holder in Fee may Prescribe for he holds his Copy-hold in the nature of an inheritance Mich. 6. Nov. B. S. 1650. Parish A Parish may comprise many Vills within it Hill 23 Car. B. r. 24. Car. Pasc Yet generally a Parish shall not be accounted to have any more then one Vill in it except the contrary be shewed Hill 23. Car. B. r. It shall not be intended that there is more then one Parish in a City except the contrary be made to appear Trin. 23. Car. B. r. For some Cities have but one Parish If the father of poor children leave the Parish and leave his children in the Parish if the children have a Grandfather in the Parish that is able to keep them the Parish is not bound to maintain them but the Grandfather Mich. 24. Car. B. r. If a High-way lye within a Parish the Parish within which it lyeth is bound to repair it of common right if it do not appear that some other persons are bound by Law to repaire it Mich. 1650. B. S. 24. Oct. For it shall be intended that the Parishioners where it lyes have the greatest benefit of it and do make the most use of it Presentation If the King do present to a Church by Laps where he ought to present pleno jure and as Patron of the Church such a Presentation is not good Hill 23. Car. B. r. For the King is deceived in his grant The King may present to a Church by his letter sent to the Ordinary to institute and induct such an one his Clerk to the Living Mich. 1649. B. S. Q. Whether he may do it by Paroll and it seems to me he may for a letter is but a signification of his pleasure which he may as well signifie by word as by writting Principal and Accessory One that is present and aiding to the stabbing of another is not a Principal but only an Accessory to the stabbing within the Act of 1. Jac. that made stabbing to be murder Hill 23. Car. B. r. Proof Although a record of a thing be lost yet the matter may be proved by circumstances to a Jury Pasc 24. Car. B. r. For the right doth not wholly depend upon the Record but a Record is to make the right more clearly appear and to preserve the memory of it to posterity If a Deed which is to be given in evidence at a tryal be enrolled there needeth no other proof of the Deed then to shew the endorsement of the Enrollment Mich. 1649. B. S. For
before a Deed can be enrolled the party to the Deed doth acknowledge it before a master of the Chancery that the Deed to be enrolled is his Deed if the Deed be to be enrolled there or before a Judge of that Court where it is enrolled which is a sufficient authority to enroll it and to give credit to the Deed. A provisoe in a Deed which provisoe goes in destruction of the estate passed by the Deed must be punctually proved Mich. 1649. B. S. For the Law doth not favour things which sound in destruction of estates but such things as tend to the affirmance and preservation of them If a Place be named with an alias it is not necessary upon a tryal to prove both the names By Rolle Chief Justice Mich. 1650. B. S. Q Tamen For Crawley when he was Justice was of another opinion A Deed which is enrolled and is not acknowledged before a Master of the Chancery as a Deed which is enrolled act perpetuam rei memoriam and not to pass an estate may be must be Proved by Witnesses if it be given in evidence at a tryal Mich. 1649. B. S. For the acknowledging of it before the master is that which gives credit to the Deed and not the Endorsement of the Enrollment which is but the act of a Clerk in the Office A thing which is Proved to have been and continued for so long time as any one living can remember shall be presumed to have been beyond the memory of man and will be accounted a good prescription Pase 1650. B. S. 11. Maii. Because the contrary cannot be proved Plaint A Plaint is the cause which the Plaintiff doth express in the Writ for which he complains to the King against the Defendant and for which he doth obtain his Writ 21. Car. For as the King denys his Writ to none if there be cause to grant it so he grants not his Writ to any without there be cause alledged for it for as the King is bound to help them to right that suffer wrong so he is bound as much as in him lies to defend his people from causeless vexation A Plaint in an inferior Court is in the nature of an original Writ Pasc 1652. B. S. For therein is briefly set forth the Plaintiffs cause of Action Poor If the Father of Children do leave the Parish where he dwelleth and there is a Grandfather of the Children to be found this Grandfather if he be able is chargeable with the keeping of the Children and not the Parish Mich. 24. Car. B. r. For the tye of Nature is a neerer tye then the Law can or doth enjoyn Presentment A Presentment taken before Commissioners of Sewers was quashed because 1. it did not appear in the Presentment by what authority the Commissioners did sit that took the Presentment And 2. because it did not appear that any of the Commissioners before whom the Presentment was taken were of the Quorum Hill 1649. B. S. As is directed by the Statute that gives them their authority Parliament The Parliament is not accounted to begin untill the first day of the sitting thereof although Writs are returned and many adjournments may be before Pasc 1650. B. S. 21. Maii. The Writs mentioned are meant the Writs directed to the Sheriffs of the several Counties and to the Cities and Borrought to Elect Members for them to serve in Parliament Presidents If there be a special cause to alter the ancient President of a Writ the Cursitors are not to keep the old form but are bound to alter it as the case requires and if they shall refuse to do it this Court will compell them to it Trin. 1650. B. S. Else it would be very mischievous to the people who by that means may have their Writs abated and be put to the trouble and charge of purchasing of new Writs by reason of their willfulness and ignorance Prisoner and Prison One that is imprisoned upon a Capias utlagatum ought to be imprisoned as strictly as he that is in prison upon an Execution Trin. 1650. B. S. 3. Julii For he that refuseth to answer the Law offends in as high if not in a higher nature then he that is condemned by the Law and is to be punished as highly It is the course of the Court when a Prisoner is delivered over by this Court unto the Marshal of the Court to endorse the day of this delivery upon the back of the Writ Mich. 1650 B. r. 20. Nov. This Court may send for a Prisoner out of the Prison of the Marshal Sea without a Habeas Corpus because that Prison doth belong to this Court but they cannot send for a Prisoner out of any other Prison but by a Writ of Habeas Corpus By Rolle Chief Justice Mich. 1650. B. S. Possession If one do make an Entry into the Lands of another and that other doth notwithstanding the Entry keep the Possession of the Lands entred into with his servants and cattel the entry is no entry in Law but if the servants and cattel be put out to gain the Possession he that is put thus out of Possession if he will prove a Possession in himself after this he must prove an actual entry afterward Pasc 1650. B. S. 25. Ap. The proving of ones cattel to be upon the Land in question is not a sufficient proof that he whose cattel they were was in possession of the Land at that time when the cattel were there Pasc 1650. B. S. For the cattel might be upon the Land Dammage feasant Peremptory By the rules of the Court a Peremptory day is not to be given to the Defendant upon a Judgement given against him upon a non sum informatus at the first reading of the record but the Court will appoint a day to hear Councel Mich. 22. Car. B. r. If the Defendant do tender an issue in abatement of the Writ and the Plaintiff doth Demur upon the issue and upon arguing of the Demurrer the issue is over-ruled that is is adjudged by the Court to be no good issue the Defendant is onely to answer over that is to tender a better issue for the over-ruling of the former was not Peremptory to him Trin. 24. Car. B. r. But otherwise it is where such an issue and demurrer is in bar of the Action for there the merits of the cause is put upon it but in the former the validity of the Writ is onely in question and whether the defendant is thereby compellable to plead to the Plaintiff or not If a Peremptory be put off by the Court the party that will take advantage by the putting of it off ought to enter the rule of Court that was made for the putting of it off Trin. 1651. B. S. A Peremptery is when a business is by a rule of Court to be spoken unto at a precise day and if it cannot be spoken unto then by reason of other businesses of the Court the Court in such
amend it if it cannot be done without defacing and much altering of the Record Mich. 22. Car. B. r. The Court will not make application of a Record produced to the matter for which it was produced for the benefit of the party that doth produce it but the party and his Councel must do it Pasc 23. Car. B. r. For if the Court should do it it would be for them to act the part of Counsellors and not of Judges which they ought not to do A transcript of a Record which Record was amended in the Common Pleas may by leave of the Court be amended in this Court by a Clerk of this Court but without leave of the Court nor out of the Court it may not be done Pasc 23. Car. B. r. For a Record cannot be amended without a rule of the Court for that is called the leave of the Court for the Court speaks by their rules The Judges cannot judge of a Record given in evidence if the Record be not sub pede sigilli that is exemplified under seal but a Jury may find a Record although it be not so if they have other matter given them in evidence sufficient to induce them to believe that there was such a Record Pasc 23. Car. B. r. For the Judges are to judge onely de existentibus apparentibus but the Jury are induced by things which are but probable for the most part and accordingly they give their Verdict If a Record be removed into this Court by a Writ of Error and the Defendants Councel in the Writ of Error do not open the Record right as it is unto the Court this false opening of it shall not be prejudicial to the Plaintiff in the Writ of Error but he may examine the Record afterwards and rectifie the mis-recitals Trin. 23. Car. B. r. A Record may be contradictory in appearance and yet may in some case be nevertheless a good Record Trin. 23. Car. B. r. A Record that that is razed remains a good Record notwithstanding the rasure in it yet he that razed it is not to go unpunished for his offence Mich. 1649. Apparent faults of the Clerk onely in Records removed out of inferior Courts into this Court are amendable here by the Statute of 8. H. 6. Trin. 23. Car. B. r. But not other faults or errors in them Neither a Deed enrolled or a Decree in Chancery enrolled are Records but it is a Deed and a Decree Recorded Mich. 23. Car. B. r. For a Record of a Court is made up of the proceedinge in some cause in that Court When a Record is to be spoken unto in Court the Councel at the Bar ought to open the Record before it is to be read by the Clerk in Court by the custome of practice yet the Court may suffer it to be first read if they please Hill 23. Car. B. r. There was a rule of Court made that every Atturney of the Court shall enter the whole Record upon the roll after a Tryal had in the cause before the next Term after the tryal so had upon the pain of twenty shillings to be paid by every such Atturney that shall not do it towards the relief of the poor Hill 1649 B. S. That the Record may be spoken to the next Term after the tryal if there be cause which cannot be done untill the Record be perfected and so by this the not perfecting it the Clyent is delayed A Record cannot be removed by a Writ of Error untill the Judgement in that Record be entred Pasc 1650. B. S. 12. Maii. By Rolle Chief Justice it was the ancient custome to enter the Record of the Cause before the cause was carryed down to the Assizes to be tryed but this course was found to be inconvenient because it could not be amended after the entry of it and therefore now they use not to enter the cause before the tryal be past and therefore he ordered a rule to be set up in the Office that if the tryal do not proceed at the Assizes at which the Record was carryed down to be tryed and the Plaintiff will carry it down again that he give the Defendant new notice of the tryal and so likewise is the Defendant to do where he intends to try the cause by provisoe that the adverse party may not attend with his Councel and Witnesses to no purpose Trin. 1651. B. S. Relief A Relief is the fruit of a Rent-service Hill 21. Car. B. r. And it is twofold that is to say 1. A Relief at the Common Law And 2. a Relief grounded upon a custome Rescous An Endictment for a Rescous returned against one into this Court ought not be quashed although it be erroneous except the party that is endicted for it do appear personally in Court 21. Car. B. r. For he cannot in such a case appear by Atturney because the offence was criminal and personal An Endictment of Rescous ought to express the place where and the time when the Rescous was made or else it is not good for the incertainty of it Trin. 23. Car. B. r. So that the Defendant cannot tell what answer to make for himself An Endictment of one that was Endicted for a Rescous supposed to be made in the fifteenth year of King Charles was quashed for its insufficiency and yet the Rescouser did not appear personally in Court contrary to the common rule observed in such cases the cause thereof seems to be because it was an old Endictment and no proceedings had been made upon it against the party Pasc 24. Car. B. Request Where one is to do a Collateral thing he ought to be requested to do it but where the thing to be done is a part of the contract there needs no Request to be made to the party to do it 21. Car. B. r. For by the contract he hath taken notice at his peril to do it Where one brings an Action of Covenant for not paying of moneys according to the Covenant he needs not alleadge that he Requested the Defendant to pay them but where he brings an Action of Debt for money due by Covenant he ought to alleadge a Request Trin. 23. Car. B. r. Q. Where one is bound to make a special Request for the doing of a thing a general licet saepius requisitus in the Declaration is not sufficient Trin. 24. Car. B. r. For those words are too general and meer matter of form and a special Request ought to set forth the time and place and manner of the Request made In an Action of Debt brought for moneys due upon an Obligation it is not necessary to alleadge a Request Trin. 24. Car. B. r. For the very bringing of the Action is a demand of the money in judgement of the Law and the party was bound by his own Deed to pay the money at his peril One may make a Request by Atturney for the payment of moneys due upon an Obligation Mich. 24. Car. B. r.
Upon a contract in the nature of a Debt Request or no Request is not material but it is otherwise if the contract be a special contract for a Collaterall thing Mich. 1650. B. S. Repeal The Defendant cannot Repeal his Warrant of Atturney given to an Atturney to appear for him but he is compellable to appear by his Atturney according to his Warrant by the rules of the Court that he may not delay his appearance by that means to the prejudice of the Plaintiff Trin. 22. Car. B. r. Reversal The chief Justice or the ancientest Judge in the Court in his absence doth alwayes pronounce the reversal of an erroneous judgement to be Reversed by a Writ of Error openly in Court upon the prayer of the party and he pronounceth it in French to this effect Pur les errors avandit et auters errors manifest in les record soyt les judgement reverse le Defendant restore a tout ceo que il ad per ceo perd In English thus For the aforesaid errors and other manifest errors in the Record let the Judgement be Reversed and the Defendant restored to all that which he hath lost by it Trin. 22. Car. B. r. But now the Seignior Judge pronounceth it and doth it in English The Reversal of a Judgement may be pronounced conditionally that is that the Judgement is Reversed if the Defendant in the Writ of Error do not shew cause to the contrary at an appointed time Trin. 22. Car. B. r. Where divers persons stand Out-lawed for a forcible entry if the Out-lawry be erroneous it may be Reversed as to one of the persons Out lawed and stand good as to the others but the possession of the Land cannot be restored untill the Out-lawry be Reversed in the whole Hill 22. Car. B. r. The Judge will not pronounce the Reversal of an erroneous Judgement though it be adjudged to be erroneous except the Councel for the Plaintiff in the Writ of Error do pray it may be pronounced Hill 1649. B. S. 30 Jan. For the Judges are only to do justice to those that desire it Restitution and Rerestitution No Restitution is to be granted by the Court upon the suggestion of the insufficiency of an endictment of forcible entry or other matter untill the Certiorari granted to remove the endictment into this Court be returned Mich. 22. Car. B. r. For before the retâ—rn the Court hath nothing before them upon record to judg upon Where an endictment of forcible entry is quashed the Court upon motion doth usually grant the party endicted a Writ of Rerestitution to restore him to the possession of the Land yet the Court may if they please settle the possession of the Land in question according to their own discretions viz. where they shall conceive the most right to be for the possession Mich. 22. Car. B. r. There ought to be no Restitution or Rerestitution granted of the possession of Lands where it cannot be grounded upon some matter of record Hill 22. Car. B. r. A Writ of Restitution lies to restore one to the place of one of the Common Councell of London or to the place of a Constable if he be illegally put out of such a place Trin. 22. Car. B. r. Or to a Church-wardens place or to a Recorders or Town-Clarks place and generally to any publike Office or place of profit or trust but not to a private Office or place The words remisit relaxavit expressed in a Charter of pardon granted by the King unto one for a felony committed by him do not restore him unto his goods which he forfeited unto the King by being convict of the felony but there ought to be the word restituit which doth properly and in its genuine signification import a Restitution to a thing which he hath not whereas the words remisit relaxavit may signifie the remitting or releasing of the claim which one hath to a thing which is in his possession to whom the release is made Trin. 23. Car. B. r. The proper nature of a Writ of Restitution is to restore the party that hath it unto the possession of a free-hold or other matter of profit Trin. 23. Car. B. r. Yet this doth not generally hold for one may have a Writ of Restitution in some Cases to be restored to a place of no profit as is before expressed The Law doth oftentimes restore the possession to one without a Writ of Restitution to wit by a Writ of Haberefacias possessionem and otherwayes in common course and proceedings of justice Trin. 23. Car. B. r. A Writ of Restitution is not properly to be granted but in such Cases where the party cannot be restored by an ordinary way of justice or course of Law and many times such cases do happen Trin. 23. Car. B. r. If one be endicted for a forcible entry and the party endicted do traverse the endictment he cannot have restitution granted unto him before a tryall and a verdict and judgment also given for him although the endictment be erroneous Mich. 23. Car. B. r. Mich. 24. Car. B. r. For it is too late to move to quash the endictment after he hath taken his traverse and so the endictment must stand good against him till the tryall The Justices of Peace only before whom an endictment of forcible entry is found must give the party Restitution who was put out of possession by force and not other Justices of Peace of the County but the Judges of this Court may grant a Writ of Restitution though the endictment was not found before them Hill 23. Car. B. r. For they have a superintendent power over all England Where a Judgment for Land is reversed in this Court by a Writ of Error the Court may grant a Writ of Restitution to the Sheriff to put the party in possession of the Land recovered from him by the erroneous judgment Pasc 24. Car. B. r. There may a Writ of Restitution be granted to one that stands endicted for a forcible entry after he hath traversed the endictment and before the tryall if there do appear to be apparent delay in the proceeding of the Defendant upon the traverse else not as is aforesaid Trin. 24. Car B. r. There cannot be a Writ of Rerestitution granted where there doth not appear to have been a Writ of Restitution formerly granted in the Case Mich. 1650. B. S. For the very word Rerestitution doth imply that there was a Writ of Restitution formerly granted A Writ of Rererestitution may be granted upon a motion for it if the Court see cause to grant it By Ask Justice Pasc 1650 B S. 2. Maii. Upon an endictment of forcible entry found against the party if he do neither traverse nor plead to the endictment the party put out of possession may be restored to his possession without moving the Court. Pasc 1650. B. S. 22. Maii. Rule The Court will not make a Rule for a thing which may be done by the
of Error if he do proceed and take out execution upon the Judgment it is no contempt to the court Mich. 1649. B. S. For it shall not be presumed he knew there was a Writ of Error brought yet though it be no contempt in him to take out the Execution yet the Execution shall be superseded quia improvide emanavit for by bringing of the Writ of Error the hands of the Court where the judgment was given were foreclosed from proceeding any further Replevin A Replevin ought to be certain in setting forth the number and kindes of the Cattell distrained or else it is not good because if it be incertain the Sheriff cannot tell how to make deliverance of the Cattel because he knows not particularly what the cattel are that were distrained Trin. 23 Car. B. r. Replication If the Plaintiff do Reply to a Plea in Bar which is not good by his replying to it he hath confessed it to be good Trin. 23. Car. B. r. And so it shall be now taken to be for he hath lost his advantage of demurring unto it by passing by the defects of it and replying unto it If an Action for the breach of the condition of an Obligation be brought and the Defendant do plead that he hath performed the condition the Plaintiff in his Replication must shew in what particularly the Defendant hath broken this condition Pasc 24. Car. B. r. That the Defendant may be able to give a particular answer to the breach assigned and if he do not assign a particular breach his Replication is idle for it sayes no more then what was formerly said in the Declaration Reservation If the Lessee for yeers assign over all his term to another and reserve a Rent the Reservation is void Pasc 24. Car. B. r. For by the assignment of the whole term he hath no interest in the thing let for the which he can challenge any Rent to be due Recovery A Recovery cannot destroy a thing executory which doth depend upon a contingency Pasc 24. Car. B. r. Because it was uncertain at the time of the Recovery suffered whether it would ever be or no and a Recovery will not work upon so remote and uncertain an estate If a Recovery be suffered by Baron and Fem of Lands whereof the Fem hath an estate in Fee Simple although there was no Tenant to the precipe of the Lands yet this Recovery shall be a good estople against the Baron and Fem and their Heirs but it would be otherwise if the Lands had been Entailed at the time of the Recovery By Rolle Chief Justice Mich. 1650. B. S. 8. Nov. It is not necessary for the Judge to examine a Fem Covert when she joyns with her husband to suffer a Recovery of her own Lands yet it is prudential to do it Trin. 1651. B. S. By Rolle and he said that he used to do it Release If the Defendant in an ejectione firmae will not defend the title of the Land in case the Verdict pass against the Plaintiff the Ejector may Release the dammages to the Plaintiff Hill 1649. B. S. 11. Feb. For he is the Defendant in Law although the title do not concern him and it is the others fault that he was not himself made Ejector to defend the title One is not bound to give a Release unto the Sheriff for moneys which he receives from him which he levyed for him by vertue of an Execution but he must give him a note under his hand that he hath teceived it Hill 1650. B. S. By Rolle Chief Justice Q. tamen Whether he be bound to give him such a note for the Sheriff is an Officer of the Law and upon payment of the money the Law gives him his discharge Recital and Misrecital If a Statute be Misrecited in pleading in a matter which goes to the ground of the Action which is brought upon the Statute it is not helped after a Verdict by the Statute of Jeofailes but if it be Misrecited onely in a circumstancial matter and which goes not to the ground of the Action it is helped after a Verdict by that Statute Trin. 1650. B. S. For the Statute helps onely matters mispleaded in matter of form and not matters of substance Report By the custome of the Court the Secondary ought not to make any report of any matters referred unto him by the Court upon the last day of the Term for that day is properly appointed for motions onely Trin. 1650. B. S. Reversion If one have a Reversion expectant upon a Lease for years he may make a Lease of this Reversion unto the Lessee for years for one year and after make a Release in Fee to the Lessee for years of the Reversion and by this conveyance the Reversion in Fee will pass to the Lessee Mich. 1650. B. S. Reference Matters of Fact betwixt the party in a cause depending in Court are not to be Referred to the Secondary for such matters are tryable by the Jury that is to try the cause but matters concerning the due proceedings or undue proceedings in the cause by either of the parties are properly to be Referred unto him and for him in some cases to compose the differences and in others to make his report to the Court how the matters do stand Pasc 1650. B. S. If a matter in difference betwixt the Plaintiff and the Defendant be referred to the Secondary and one of the parties will not attend at the time appointed to hear the business referred the other party may proceed in the Reference alone and get the Secondary to make his report without hearing of the other party Trin. 1651. B. S. For one party cannot compell the other to attend and therefore such References would many times take no effect for want of the presence of both parties if a report may not be made notwithstanding one of them refuseth to attend Right Lands between the high water Mark and the low water Mark do appertain to the Lord of the Manor next adjoyning of Common Right Pasc 23. Car. B. r. By Rolle Q. tamen Whether they do not rather belong to the King for it hath so been held Scire Facias ONe may have a Scire Facias to revive a Judgement upon which no Execution was taken if it be but seven years past since the Judgement was had without any motion to the Court for it and if it be under ten years since the Judgement was had a Scire Facias may be moved for to revive it at the side Bar but if it be above ten years since the Judgement was had a Scire Facias may not be had without moving the Court for it Pasc 24. Car. B. r. But the Court will not deny it if it be moved for The side Bar is a place where a rail or bar is set up neer to this Court below the Court in Westminister-hall where the Judges stand and rest themselves before the Court sits and where they put on their
The Statute of 21. Jac. of Jeofailes which is to help defects in pleadings doth extend to all inferior Courts as well as to the superior Courts for it is a beneficial Law for the people and shall therefore be expounded largely and not with a restriction Pase 24. Car. B. r. The misrecital of a Statute in pleading in a thing which doth not concern the ground of the Action which is brought upon the Statute is helped by the Statute of Jeofailes Trin. 1650. B. S. Although a penal Statute shall not be extended to equity in the exposition of it yet it shall be so expounded that the true intent and meaning of it may be known Mich. 1650. B. S. For if the former should be the exposition would be too large and arbitrary and if the latter should not be the exposition would be to narrow and would extenuate the force of the Statute Satisfaction Satisfaction pleaded to an Obligation which appears to be of a thing which was performed before the date of the Obligation is not good Mich. 22. Car. B. r. For the date of the Obligation shall not be intended to be after the ensealing and delivery of it Moneys that are to be paid by an Executor by vertue of a Decree in Chancery are not to be satisfied by the Executor before a Debt due upon an Obligation made by the Testator and grown due after the death of the Testator By Rolle Chief Justice Trin. 23. Car. B. r. Whether a Legacy given by the Testator or a Covenant entred into by him in his life time and broken in the time of the Executor shall be first satisfied Trin. 23. Car. B. r. Q. In Eeles and Lamberts Case A Guardian may acknowledge Satisfaction upon Record for the Infant unto whom he is Guardian for a Debt which as Guardin he hath recovered for the Infant Trin. 23. Car. B. r. For it is reason that he that hath power given him to recover a Debt should have power to discharge the party of whom it is recovered when he hath received it The ancient course of this Court was that if the Defendant will make the Satisfaction for that which he is sued for to the intent that the Court may cause the Plaintiff to cease his prosecution and may receive the Satisfaction offered that the Defendant should come into Court before he pleads and tender Satisfaction or else the Court would not receive this tender nor order any thing in it Hill 1650. B. S. But now if the Defendant do offer this Satisfaction after be hath pleaded the Court will not utterly reject it but will upon the prayer of the party refer the matter to the Secondary to end the matter the Defendant making full Satisfaction for the principle matter and for costs and dammages suffered and expended by the Plaintiff in the suite Sheriff and Vnder-Sheriff In some cases the Court will order the Sheriff to attend the Secondary of the Office with his Book of Free-holders of the County where the Land in question doth lye that an indifferent Jury may be returned for a tryal at the Bar. Mich. 22. Car. B. r. A Sheriff is not bound to return a Writ directed unto him except the party whom the Writ doth concern do tender him his Fees for the executing of it that is in such cases where he is allowed Fees Mich. 22. Car. B. r. Q. de ceo For the very words of the Writs do enjoyn the Sheriff to make a return of them Mich. 22. Car. B. r. So that it seems he is to return them whether the parties concerned do call on him or not and if he be not paid his Fees where he is allowed to take them he may recover them by an Action A Sheriff out of his Office cannot be fined by the Court but a Tipstaff may be sent for him to bring him in to answer this misdemeanor committed by him when he was in his Office 22. Car. B. r. The old Sheriff of a County is Sheriff untill the new Sheriff be sworn although he be chosen Hill 22. Car. B. r. For the taking of his oath doth compleat him in his Office The Under-Sheriff ought alwayes to have his Deputy to be attendant in Court to receive and execute their commands and to give account of businesses which may fall out concerning the Sheriff Hill 22. Car. B. r. Both the Sheriffs of the City of London are in Law but one Sheriff and one of them is not onely Sheriff of Middlesex and the other Sheriff of London or one the Kings Sheriff and the other the City Sheriff as it is commonly said 11. Feb. Hill 1650. B. S. Every Sheriff ought to answer for the misdemeanors of his Bailiffs Trin. 1651. B. S. For they are his servants and ought to be under his Government Suggestion or Surmise A Suggestion made to the Court that the thing for which it is libelled in the Admiralty against the party was done infra Corpus comitatus where as in truth it was done beyond the Seas is notwithstanding a good Suggestion for the Court to grant a prohibition unto the Admiralty upon for it is but to try the jurisdiction of the Admiralty and not the merits of the cause and if it be false the Plaintiff in the Admiralty may joyn issue upon it and try it at the Law and if the Verdict pass for him the Court will grant a consultation that he may proceed in the Admiralty Mich. 22. Car. B. r. Matters of Record ought not to be stayed upon the bare Suggestion or Surmise of the party but there ought to be an Affidavit made of the matter Suggested to induce the Court to ground a Rule for staying the proceedings upon the Record Mich. 1650. B. r. Surrender If Lessee for Life do accept of a Lease for years it is a Surrender in Law of his Lease for life By Rolle Pasc 24. Car. B. r. For if it should be otherwise the Lease for years would be made in vain and to no purpose for both the Leases cannot stand together and where things may have an operation by a reasonable construction in Law the Law will support them Supersedeas If a Writ of Error be brought there ought not to be a Supersedeas granted to him that brings the Writ of Error to stay Execution upon the Judgement which is to be reversed by the Writ of Error untill he that brings the Writ of Error have put in special Bail to pay costs and dammages if the Judgement be not reversed by the Writ of Error but affirmed Trin. 24. Car. B. r. It is very hard to compell the party that brings a Writ of Error to take out a Supersedeas into all the Counties where he hath Lands or goods lyable to the Execution upon the Judgement for the reversing whereof the Writ of Error was brought Mich. 1650. B. S. By Rolle Chief Justice Yet it is a sure way for him that doth bring the Writ of Error to do it to
parties concerned in the Tryal will not help it Mich. 24. Car. B. r. For such a Tryal cannot be supposed to be indifferent for none ought to be Judge in his own cause A mis tryall is helped by the Statute of Jeofailes but not a voide Tryal to wit where there is no issue joyned to be tryed but in such cases there must be a repleader that the matter in question may be put in issue to be tryed Mich. 24 Car. B. r. The day for a Tryal ought to be entred into the Clerks book in the Office viz. the Clerk of the Papers Mich. 1649. B. S. And before it be so entred there ought not to be notice given at the Tryal Q. Tamen One that is a priviledged person in this Court ought not by reason of his priviledge onely to have a Tryal at the Bar granted unto him but there must be difficulty in the matter to be tryed or else it must be of great value Hill 1649. B. S. 4. Feb. A Tryal at the Bar ought not to be granted before the Defendant hath pleaded and issue be joyned Hill 1649. B. S. 11. Feb. 12. Feb. 1656. For before that the cause is not ready for a Tryal nor doth it appear that the parties intend to proceed to it Tryall Of latter times there hath been twenty Tryals granted to be at the Bar in Easter Term but not above Pasc 1650. B. S. 1. Maii. But anciently not above half the number Although the Defendant do go to a Tryal without sufficient notice given unto him of the Tryal and there be a Tryal accordingly this Tryal is not binding unto the Defendant but he may if he please have a new Tryal granted for want of due notice Pasc 1650. B. S. 19. Ap. For the Rules of the Court are not to be broken by the consent of the parties By the ancient practice of the Court all the Tryals at the Bar which are had in Easter Term ought to be tryed a fortnight before the end of the Term. Pasc 1650. B. S. 1. Maii. And the remainder of the Term was to be spent in other businesses more proper for the Court. In ancient times there were wont to be Tryals in Parliament by Juries but of latter times no such Tryals have been Pasc 1650 B. S. 24. Maii. The prosecutor in an information brought in this Court ought to bring the cause to a Tryal at his own costs but in an Endictment which is folely at the sute of the King he that is Endicted must bring the cause to a Tryal at his own charges Pasc 1650. B. S. 24. Maii. An information is preferred as well for the benefit of the informer as the King and therefore it is reason he should bring it to Tryal at his own charges If at a Tryal the Court do see that one of the parties is surprised but not by any fault or laches of his own but by some other casualty they may in their discretion put off the Tryal to another time untill the party surprised may be better provided for his Tryal Trin. 1650. 3. July B. S. For this is not to delay justice but to give time that clearer justice may be done In criminal causes Tryals may be at the Bar in Hillary Term and in Easter Term but not in other causes Mich. 1650. B. S. But onely in Michalemas and Easter Term. This was the old course but of late in some special cases Tryals have been granted to be at the Bar in Hillary Term and Trinity Term. The Court of Chancery will not stay a Tryal at Law by an injunction when the parties are ready for the Tryal and have expended their costs for the Tryal but after the Tryal they will grant an injunction to stay Judgement Pase 1652. B. S. If the Plaintiff in an Action of Trespass and Ejectment do bring his cause to be tryed at the Bar he cannot compell the Defendant to confess the Lease Entry and Ouster for the Tryal at the Bar was not granted in favor of the Defendant but of the Plaintiff but if the Defendant bring the cause to be tryed at the Bar there he must confess the Lease Entry and Ouster because the Tryal was granted to be at the Bar in his favor Pasc 1652. B. S. If a cause be appointed to be tryed in one Term and the Plaintiff doth not then proceed in his Tryal but rests for a year or more after if he will after so long time try the cause he must give the Defendant a whole Terms notice before his Tryal Pasc 1652. B. S. If a Tryal be had the last day of a Term Judgement cannot be entred upon that Verdict untill the next Term after By Rolle Chief Justice 1652. B. S. Nor till the four first dayes within the Term be passed for so long time hath the Defendant by the Rules of the Court to speak in arrest of Judgement It was said by Rolle Chief Justice that the City of Bristol will not bring a matter to be tryed here at the Bar no more then the City of London will 1654. B. S. If at a Tryal at the Bar in a Trespass and Ejectment the Plaintiff and the Defendant do consent that the Jury shall have a view of the Lands in question there can no Tryal proceed in the cause that Term. By Rolle Chief Justice 1654. B. S. It is not usual to grant a Tryal at the Bar the same Term it is moved for but the next Term after 1654. B. S. Yet sometimes upon special reasons it is done A voluntary Affidavit made before a Master of the Chancery is not to be given in evidence at a Tryal at the Bar. Pasc 1655. For a Master of the Chancery hath not authority to administer such an Oath and therefore if the party did swear falsly it is not perjury nor can he be endicted for it because it is Coram non judice and therefore such oaths are of little credit to be given in evidence If a Tryal be had and a Verdict thereupon given the same issue may not be tryed again by the Jury that tryed it before 1655 B. S. For it is more then probable they will give the same Verdict Traverse A Traverse ought to have an inducement to make it relate to the foregoing matter or else it is not good and formal Mich. 22. Car. B. r. If the Court shall change the venue and lay it in a County where the cause of Action did not arise the party may Traverse the County if he please and so draw the venue into the right County where the cause of Action did arise Trin. 23. Car. B. r. If one will take a Traverse to a Declaration he ought to Traverse that part of it that the doing thereof will make an end of the matter for which the Plaintiff declares and then is the Traverse good Pasc 24. Car. B. r. Where the Defendant hath given a particular answer in his Plea to all the material matters
cause of Action to warrant his Declaration or where some material and essential part of the Declaration is omitted such Declarations are not helped by the Statute Mich. 22. Car. B. r. Hill 22. Car. B. r. If a special Verdict be drawn up contrary to the notes agreed upon by the Councel on both sides at the tryal the Court upon a motion will rectifie this if the parties cannot agree between themselves to do it or that the Councel on both sides did formerly consent to such an alteration Mich. 22. Car. B. r. If the Court do direct the Jury to finde a speciall Verdict upon the prayer of the Plaintiff or of the Defendant the party at whose prayer the special Verdict was found ought to prosecute this special Verdict that the matter in Law in it may be determined Mich. 22. Car. B. r. Because the Verdict was directed to be so found in his favour Where the Court doth direct the Jury to finde a special Verdict one of the Councel on both parts are to agree upon the notes for it and to draw them up and to set their hands to them and to deliver them in unto the Jury in convenient time or else the Court will take a general Verdict Mich. 22. Car. B. r. The Chief Justice may in some special case take a Verdict out of Court but then the Verdict must afterwards be pronounced in Court Mich. 22. Car. B. r. If a matter in fact be left out in the notes drawn up by the Councel of the special Verdict found by the Jury this cannot be amended afterwards though the Court be moved in it and although the Councel on both sides do consent Mich 22. Car. B. r. For this were for the Court and Councel to make a new Verdict against the finding of the Jury who have found the matter of Fact already If one of the parties whom a special Verdict doth concern will not joyn with the other in prosecuting of the special Verdict the Court upon a motion will order him to joyn in it and if the Verdict be made up and the party will not bring it in to be entred and proceeded in the Court will grant an Attachment against the party Mich. 22. Car. B. r. The Plaintiff and Defendant ought both of them to appear in Court to hear a special Verdict and the Jury is to be called and to have the special Verdict read unto them by the Secondary and upon the reading of it if there be any mistake in the penning of it the Councel on either side hath liberty to except against it and when the Councel is agreed then the Secondary demands of the Jury whether they agree to find it so and if they answer they do then the Verdict is found Pasc 23. Car. B. r. If the Jury will find against the directions of the Court any thing in matter of Law the Court will not receive the Verdict but compell them to find as the Law requires Pasc 23. Car. B. r. For the Court is judge of matters in Law as the Jury is of matters of fact If in an Action upon the Case brought for speaking of scandalous words the Jury do find that the Defendant did speak words which are Actionable against the Plaintiff and so give a Verdict for the Plaintiff and it appears that the words found are not expressed in the Declaration this is not a good Verdict if there be not other words found which are in the Declaration which are actionable Trin 23. Car. B. r. For the words in the Declaration are onely put in issue to the Jury A special Verdict after the notes are agreed upon by the Conncel and drawn up and their hands set unto them is not a special Verdict untill it is allowed by the Court Mich. 23. Car. B. r. For they are to judge whether the matter in question be rightly stated or not Where a Verdict is imperfectly found by the Jury there the Defendant is not to move upon it in arrest of Judgement for there cannot be any Judgement given upon such a Verdict and by consequence the motion is needless but in such case there ought to be a new venire to summon a new Jury to try the cause again Mich. 23. Car. B. r. Where a special Verdict is imperfectly drawn up and entred the Judges will not argue the matter in Law for there can be no Judgement given in the cause by reason that the Verdict is not good but in such a case there must be a new venire that a new Verdict may be found Hill 23. Car. B. r. Mich. 1649. B. S. 13. Nov. A cause depending in Court upon matter in Law found by a special Verdict ought not by the ancient practice of the Court to be read in Court as a Record untill books thereof be given unto the Judges of the Court and so is the use in the Exchequer at this day Pasc 24. Car. B. r. That the Judges may have sufficient time to consider of and to speak to the matter in Law A misdemeanor of the Jury before they give their Verdict is not a sufficient cause to make voide the Verdict Pasc 24. Car. B. r. Although they are punishable for it If a Verdict be given where there is no issue joyned this is a Jeofaile and there can be no Judgement given upon such a Verdict but there must be a repleader to bring the matter to a tryal Pasc 24. Car. B. r. For there was nothing tryed before for want of an issue joyned A special Verdict ought to be prepared by Councel and delivered to the Jury to consider of before they deliver their Verdict in private to the Judge and not the next morning when the Jury come to deliver their Verdict openly in Court Pasc 1650. B. S. 2. Maii. For then the Court cannot expect till they consider of it In criminal causes if there be any errors in the proceedings they are not helped after a Verdict by the Statute of Jeofailes Pasc 1651. B. S. 11. Mati For the Statute montions not criminal matters and it shall not be extended to equity because it is in abridgment of the practice of the Common Law Although the Court do bid the Secondary Record a non sute yet if be not Recorded the Court may take the Verdict afterwards Trin. 1651. B. S. For the non-sute is no non-sute before it be recorded If the Plaintiff and the Defendant do consent to have the Jury find a special Verdict the Jury ought not to refuse to finde it Trin. 1652. B. S. Q. A Verdict by default is found in this manner in an Action of Trespass and ejectment When the Jury is ready at the Bar to try the cause the Secondary bids the Cryer call the Defendant which he doth thrice and if he do not appear the Plaintiffs Councel do pray the Court to take the enquest by default thereupon the Jury is sworn and the Record is read unto them then the Plaintiffs Councel do
open the Record unto the Jury and prove the Lease of Ejectment and cause it to he read and then open the Plaintiffs title and if no evidence be given for the Defendant the Jury find for the Plaintiff and give him dammages and costs of Sute 1654. B. S. If the Jury find a matter specially and do conclude a thing which can not stand and agree with their finding the conclusion is idle and shall be taken to signifie nothing By Rolle Chief Justice 1654. B. S. For the Verdict was perfect without the conclusision and therefore an idle and impertinent thing shall not vitiate a good Verdict The Jury may find a matter of Record if it be very ancient or if the Record be embezeled or cannot be found upon search made for it notwithstanding what is held in Scholasticas case to the contrary although the Record be not shewed to the Jury By Rolle Chief Justice Valuation A Jewel is not Valuable but according to the Valuation of the owner of it and is very incertain Hill 21. Car. B. r. Q. Tamen For it seems there is a certain Value for Pearls and Diamonds amongst the Merchant Jewellers according to their weight bigness and luster If one declare in an Action of Trespass for the taking away of live cattel he ought to say that he took away his cattel pretii so much but if he declare for taking away of things without life he ought to say ad valentiam of so much Mich. 1649. B. S. Q. Differentiam inter pretium valentiam or price and value Vse A Use and a Trust were all one at the Common Law and did both rest in privity but are now distinguished by the Statute of 27. H. 8. Mich. 23. Car. B. r. The limitation of a Use was at the Common Law but a matter in equity and the party concerned was onely relievable upon it in Chancery Mich. 22. Car. B. r. Feoffments to Uses have the same acception as Deeds at the Common Law have and are not to be interpreted as Wills are Mich. 23. Car. B. r. It is all one whether a Use be raised by way of Covenant or by way of Feoffment Mich. 24. Car. B. r. Privity of estate and confidence in the party are the two great pillars by which Uses are supported Pasc 1650. B. S. 18. Maii. Vsury Where there is not a Usurious contract preceding although he that lendeth money do take more then eight pound per annum per centum upon a just computing of the moneys received by him whether it fall out by the miscasting of the parties or by the mistake of the Scrivener this is not Usury forbidden and punishable by the Statute Trin. 22 Car. B. r. Threescore pounds was reserved payable upon a Morgage of Lands for three years payable at every six moneths by equal portions whereas the whole Use money for three years for the moneys lent upon the Morgage according to the Statute came but in the whole to sixty pounds and yet this adjudged to be no Usurious contract Mich. 23. Car. B. r. Voide and Voideable A thing is Voide which is done against Law at the very time of the doing of it and such a thing done shall binde no person but a thing which is only voidable and not absolutely void is a thing which he that did it ought not to have done it yet when it is done he that did it cannot avoid it but it may be made void by his Heir c. 21. Car. B. r. A Lease which is only Voidable must be made Voide by re-entry but where a Lease is absolutely voide there needs no re-entry 22. Car. B. r. Vill. The Constable of one Vill cannot execute his Office in another Vill. 24. Car. B. r. For every Vill hath a particular Constable or Officer and have confined power to their severall limits There is an antient Book called Liber Villarum wherein is contained all the Vills and Parishes in England Pasc 24. Car. B. r. This Book I take it is in the Exchequer Variance If there do uppear to be a materiall variance tween the matter pleaded and the manner of the pleading of it this is not a good Plea Pasc 24. Car. B. r. View The Court will grant that the Jury shall view the thing in question for them to try if they doubt of it if the Plaintiff and Defendant will consent unto it otherwise not 15. Nov Mich. 1650. B. S. But the Jury must find without a View according to the light they have received from the evidence as their consciences shall direct them Warden of a Church or Church-Warden A Church-Warden is a Church-Warden although he do not take an Oath for the Oath was only enjoyned him by the Bishop of the Diocess by an usurped authority for he is an Officer whereof the Common Law takes notice and was so before such an Oath was imposed upon him Mich. 22. Car. B. r. Waste If Waste be done upon Lands which are let for Term of years or for life by one against whom the Lessee can have no remedy in Law for committing this Waste the Lessee is not punishable by the Lessor for this Waste except there be a special covenant in the Lease that he shall not commit or suffer Waste to be done Mich. 23. Car. B. r. So that a special covenant of the party doth binde him where by the Law he was not bound A Foreign enemy that invades the Land and makes destruction in Lands and Houses is such an one as the Lessee can by Law have no remedy against for Waste done by him If Timber Trees be growing in the Hedges of a Field or close let for years or life and the Lessee cuts them down the Field shall not be forfeited in an Action of Waste brought against the Lessee but if the Trees cut did grow scatteringly throughout the field or close the whole field or close is forfeited by cutting them down By German Justice Pasc 1650. B. S. 17. Junii Q. Withernam Cattel which are taken in Withernam ad valentiam that is to the value of the cattel that were first distrained and so detained that the Sheriff cannot execute the Replevin brought for them is to be understood not of the number of the cattel first distrained but according to their full worth and value 1651. B. S. For else he that brings the Repliven and Withernam will be deprived of his satisfaction he ought to have in case the distress were not lawfully taken Warranty If one Warrant a horse or any other thing sold after the time of the sale of it such a Warranty is not good to bind the party that made the Warranty but the Warranty must be made at the time of the sale and then it is binding because it is part of the contract Pasc 1652. B. S. Writ A Writ may be either a Mandatory Writ or it may be a remedial Writ a Mandatory Writ is a Writ which is directed unto the Cinque
Ports or to some other priviledged place to enjoyn them not to exceed their jurisdiction but this is not a remedial writ to the party that obtains it conducing any wayes to his obtaining of right in his cause depending there Trin. 22. Car. B. r. An Original Writ is not amendable if it be erronious in substance because he that takes it out may have a new original and so is not without remedy Hill 22. Car. B. r. Though the Writ be abated An original Writ which is defective in form onely is abateable if it be not amendable by the Statute as in some cases it is and in others not Hill 22. Car. B. r. If the Prerogative Court shall refuse to grant Administration according to the Testators will this Court may grant a Writ at the prayer of the party grieved to compell them to do it and the Countess of Bark-shires case 29. Jac. and the case of Saint Burien in Cornwell were cited to prove it Hill 22. Car. B. r. If one bring a Writ of Ejectment and pending the Sute he makes an entry into the Land for which the Action is brought the Defendant may plead this entry in abatement of his Writ Hill 22. Car. B. r. A Writ without a Teste is not good Hill 22. Car. B. r. For the time may be material when the Writ was taken out A Writ issuing out of any of the Courts at Westminster do not run that is are of no force within the County Palatine of Chester or other County Palatine Hill 22. Car. B. r. Because they have jura regalia within their jurisdictions and are not subject unto other jurisdictions The Sheriffs Bailiff cannot execute a Writ directed unto the Sheriff without the Sheriffs Warrant Pasc 23. Car. And if he do he is liable to an action Where the Sheriff is Judge of the Court a Writ which should otherwise have been directed unto him shall be directed to the Serjeants of the Mace Pasc 23. Car. B. r. That is in such places where there are such Serjeants After Judgement in a cause there can no Plea be pleaded in abatement of the Writ upon which the Action was commenced Pasc 24. Car. B. r. In a Writ of Dower the Tenant cannot plead bis petita in abatement of the Writ of Dower Pasc 24. Car. B. r. That is that the Defendant hath demaned her Dower by another former Writ depending for she can recover but once Q. In an Action of Debt it is a good plea in abatement of the Plaintiffs Writ to say that the Plaintiff hath received part of the Debt for which he Sues since his Action brought but it is no plea good in an Action upon the case Pasc 24. Car. B. r. Tria 24. Car. B. r. For in Debt the Plaintiff is to recover the whole Debt he declares for but in an Action upon the ease the Plaintiff is to recover no more then he can prove he is damnified by not paying of what he demands and the money received since the Action brought can but abate the dammages and doth not destroy his Writ for it was incertain at the bringing of Writ how much he was damnified The Writ directed to call one to the dignity of a Serjeant at the Law is a close Writ that is sealed up to signifie it is his duty to keep close his Clyents cause and not to reveal it but the Writ directed to one to call him to the place and dignity of Chief Justice or other Judge is an open Writ and not closed up to shew that his duty is to do open Justice unto all Mich. 24. Car. B. r. A Writ of Error brought by the Baile to reverse a Judgement given against the Principal onely is abateable and so is it by Rolle Chief Justice where the Judgement was given against the Principal and the Bail also Mich. 1649. Q. Tamen In the latter case If the party be sued to an Out-lawry upon an original Writ the Writ is determined by the Out lawry for it hath had its full effect which was to make the party to come in and appear and answer the Plaintiff or else to Out-law the Defendnat if he should not appear By Rolle Chief Justice Hill 1650. B. S. Where the Sheriffs Bond which he took for the Defendants appearance is put in Sute the Writ taken out to arrest the Defendant upon this Bond ought to be directed unto the Coroner because the Bond is to be sued in the name of the Sheriff Pasc 1650. B. S. 17. Ap. And so is accounted in Law to be a Party Writ of Enquiry of Dammages The Court will quash a Writ of Enquiry of Dammages and not suffer it to be filed if the Plaintiff do execute it without the giving of due notice of the execution thereof unto the Defendant and put him to take out a new Writ of Enquiry Hill 22. Car. B. r. If it do not appear to the Court by the Return or by some other way that a Writ of Enquiry hath been executed the Court will grant the Plaintiff a new Writ if he desire it if the former Writ do take no effect Mich. 22. Car. B. r. A Writ of Enquiry is to issue forth where a Judgement is had upon a nihil dicit or non sum informatus or upon a demurrer and not upon a Verdict and this Writ is to summon a Jury to try what Dammages the Plaintiff hath sustained by the Defendant in the cause because the dammages were not formerly assessed the matter not being tryed by a Jury Hill 22. Car. B. r. If there be error in a Writ of Enquiry of Dammages the Court upon the prayer of the party will grant him a new Writ but will not suffer the old Writ to be amended Pasc 23. Car. B. r. If a Writ of Error be brought in this Court to rereverse a Judgement given in another Court and the Judgement is affirmed in this Court this Court may grant a Writ of Enquiry of dammages if it was such a Judgement whereupon a Writ of Enquiry did lye Trin. 24. Car. B. r. If upon the executing a Writ of Enquiry of Dammages the Sheriff do refuse to swear and examine some of the Witnesses produced on either part and yet doth execute the Writ the Court will grant a new Writ to the party grieved for the old Writ was not well executed 1651. B. S. Way and High way There are three Wayes taken notice of to wit Alta Via Communis Via Via by prescription that is a High-way a Common Way and a Way by prescription Pasc 24. Car. B. r. If a High-way lye within a Parish the Parish is of common right bound to repair it except it appear that it be to be repaired by some other person either by reason of tenure or by prescription Mich. 1650. B. S. 24. Oct. If any person do enclose any part of a Way or waste adjoining to a High-way he thereby doth take upon him to keep the Way
adjoyning in repaire for thereby he claims particular interest in it 1651. B. S. Wager of Law The Defendant cannot Wage his Law in an Action which doth arise upon a realty but onely where the Action is personal Trin. 22. Car. B. r. And therefore if an Action be brought for the Arrerages of rent the Defendant cannot Wage his Law for the Rent doth arise out of the Land and Sounds in the realty The manner of Waging of Law is this He that is to Wage his Law stands at the end of the Bar towards the right hand of the Chief Justice and the Secondary askes him whether he will Wage his Law if he answers that he will the Judges admonish him to be well advised and tell him the danger of taking a false Oath and if notwithstanding he persist then the Secondary speaks words to the effect following unto him and he that Wageth his Law doth repeat every sentence distinctly after him Hear ye this ye Justices that I W. S. do not owe to B. B. the sum of naming the sum in the Declaration nor any penny thereof in manner and form as B. B. hath declared against me So God me help and then he kisseth the book But before he takes the Oath the Plaintiff is called by the Cryer thrice and if he do not appear then the Defendant goes quit without taking his oath but if he appear then he must take his oath and then he is discharged without pleading Mich. 22. Car. B. r. Because if the Plaintiff do not appear to hear the Defendant perform his Law he is non-sute Pasc 24. Car. B. r. The reason why Wager of Law is suffered is because the contract upon which the Action is brought being a private contract and not to be proved it may be intended that the discharge may be in private and not to be proved otherwise then by the Oath of the party whom the Law will not presume will take a false oath Hill 1649. B. S. 31. Jan. If one bring an Action of Debt upon a concessit solvere as it is used to be done in Bristol and some other places the Defendant may Wage his Law Hill 1650. B. S. 5. Feb. If the Defendant do tender his Law in Court and is ready to perform it and the Plaintiff being called doth not appear he shall be non sute and pay costs but then he may bring another Action for the Debt if he please but if the Plaintiff do appear and the Defendant doth make his Law then the Plaintiff shall never bring another Action for that Debt but shall be barred for ever Mich. 1650. B. S. 22. Nov. For it is as much as if a Verdict passed against him Words A Latin word used in pleading which word doth signifie divers things is nevertheless well used to express that thing which is intended to be expressed by it if there be an Anglice joyned with it Hill 21. Car. B. r. For by the word Anglice it is explained what the party doth intend it shall signifie in English This was more useful to be known when all pleadings in Law were in Latin Words which may be taken or interpreted in a general and common sence ought not to receive a strained and unusual construction Hill 21. Car. B. r. For it is likely the party that used them had a plain and common meaning in them and not a strained and unusual Words which are in themselves uncertain may nevertheless be made certain by subsequent or following words Mich. 23. Car. B. r. Although Words were not Actionable in themselves at the time of the speaking of them yet if an Action be brought for the speaking of them they may be made Actionable by the Defendants pleading by justifying of the Words Mich. 22. Car. B. r. For it may be that in such his justification he may explain in what sence he spake them which did not appear plainly before These Words you are a Knave spoken generally will not bear an Action but if one call another Knave and apply the words particularly to the profession of him against whom they are spoken as to call an Atturney at Law Knave and to apply it specially to him in relation to his practice as an Atturney an Action upon the Case will lye for speaking of them Hill 22. Car. B. r. For by the application of them they import a special dammage done to the party by the speaking of them A word which is written short or abreviated without a dash is not good Hill 22. Car. B. r. For the dash or turning up of a stroke or dash with a pen at the end of it is the general mark or signe to distinguish an abreviated word from a word written at length Incertain words in the Count or Declaration may be made good and certain by a plea in Bar. Hill 22. Car. B. r. To wit by the Defendants taking notice of the meaning of them in his plea. The different placing of the same words may cause them to have a different sence or construction Pasc 23. Car. B. r. The Court ought so to order the words of a Will that they may receive such a construction that may agree with Law although by their misplacing they cannot receive such a construction Pasc 23. Car. B. r. Vt res magis valeat quam pereat Words in a Will as they may be diversly penned may either destroy a condition or create a condition where there was none before Pasc 23. Car. B. r. Morage of a Ship is when the Ship lies on the ground in the More Mire or Mudd within a Haven or Harbor and doth not float upon the watter Pasc 23. Car. B. r. The Ansty of the City of York is that part of the County of the City which extends without the City and is a hundred which is within the jurisdiction of the City and was added to it by Act of Parliament Pasc 23. Car. B. r. The word relaxavit doth not amount to a surrender in the case of a common person much less in the case of the King Trin. 23. Car. B. r. But it amounts onely to a release which differs much from a surrender as appears by Litleton in his tenures The word interest for borrowing of money shall be intended eight pounds a year per centum if the contrary be not shewed Trin. 23. Car. B. r. This was when money was at eight in the hundred but now it shall be intended six pound in the hundred The words of a Statute ought not to be so interpreted that thereby natural Justice will be destroyed Hill 23. Car. For it is not the intent of any particular Law of a Land or Nation to destroy the general universal Law of nature The word Simul is not a word copulative when it is joyned with the word et Trin. 24. Car. B. r. But Simul cum are words copulative Where there is a Latin word in a Declaration which is falsely Englished the English word shall be adjudged void
and the Latin word shall stand Pasc 24. Car. B. r. Q Tamen Where senceless words which signifie nothing are used in a Declaration to express things they shall be accounted voide and idle and shall not hurt the Declaration if it be good without them for no dammages shall be intended to be given by a Jury for those things which were intended to be expressed by those senceless words Pasc 24. Car. B. r. The word videlicet is used to explain the foregoing words in the Deed or other wrighting where it is used and if the words which the videlicit doth usher in be contrary to the preceding words they are voide Pasc 24. Car. B. r. One may upon a consideration dissolve by Paroll an absolute contract Pasc 24. Car. B. r. One may give authority by Parol unto another to take Livery and Seisin for him Mich. 1650. B. S. For he is but an instrument or Conduit Pipe to derive the possession of the Land to another Words ambiguous ought to receive such a con-construction as may make them stand with Law and equity Mich. 1650. B. S. A mark made in the manner following viz. A which is to shew where a clause or word left out and interlined in writing should come in is called a tra By Rolle Chief Justice It seems to be derived from the Latin word trahere to draw because by it the words left out are signified to be there where it is placed to be drawn into the writing 1650. B. S. Witness A Witness who by reason of sickness extreme age or other cause cannot come to a tryal may by order of Court be examined in the Country by a Commission out of the Chancery or before any Judge of the Court where the cause depends and the testimony so taken shall be allowed to be given in evidence at the tryal Mich. 22. Car. B. r. If a Witness be served with the Process of this Court to give his testimony at a tryal and will not come the Court may grant an Attatchment against him for his contempt to the Court and the party may have his Action upon the Case to recover the dammages he received for want of his Testimony Mich 22. Car. B. r. The testimony of one single person is a sufficient testimony for the King in a cause wherein he is concerned Mich. 22. Car. B. r. To wit in criminal causes but Q. Whether it be so in civil causes A Witness that is to testifie on the behalf of the King against one that is arraigned for Felony may not be sworn against the King to give his testimony but the prisoner may examine him desire his testimony without giving him his oath Mich. 22. Car. B. r. If divers persons be made parties to a sute and some of them are either found not guilty or else the Plaintiff will give no evidence against them they may be allowed to be examined as witnesses in the cause whereunto they were made parties Mich. 22. Car. B. r. For now it appears they are not concerned in the sute but are as strangers and indifferent persons He that will make use of Witnesses at a tryal must get them thither at his own peril and he shall not delay the other party for lack of his Witnesses Pasc 23. Car. B. r. For he hath his remedy against his Witnesses if he suffer in his tryal by reason of their absence One that hath but a small Legacy given unto him by a Will may be allowed as a Witness to prove that will but he that hath Lands given unto him by a Wil may not be allowed for a Witness to prove that Will Pasc 23. Car. B. r. For that were to suffer one to swear his own title but in the former case the Law will not intend that any one will forswear himself for a small matter It is not requisite for Witnesses to a Will to set their hands unto it Pasc 23. Car. B. r. Nor for Witnesses to a Deed to do it but it is very prudential to do it the better to keep things in memory A man may be a credible Witnesses that is one of good fame and credit and yet by Rules of the Law he may not be a Witness in the cause wherein he is produced to his give testimony Pasc 23. Car. B. r. For he may be for some by respect not indifferent in that particular cause though otherwise accounted of good credit and repute One that is made Executor of a Will is not to be allowed as a Witness to prove that Will Pasc 23. Car. B. r. For his own interest may be concerned in the proof of the Will If the Councel on both sides at a tryal cannot agree what testimony a Witness in a cause did give the Court will examine him again Pasc 23. Car. B. r. That all things may be clear and without dispute Inhabitants within a Corporation if they be not free of the Corporation may be admitted as Witnesses for the Corporation as a tryal which concerns the Corporation Pasc 23. Car. B. r. For their interest is no way concerned and favor is not a good exception against a Witness although it he against a Juror A Witness may not be compelled to answer upon a voir dire touching a Trespass done for the doing whereof he may himself be lyable to an Action Mich. 23. Car. B. r. For nemo tenetur prodere scipsum One that is of Councel in the cause on one side may be examined as a Witness in it on the other side if he be served with Process to give his testimony therein but otherwise he may refuse to be examined Mich. 23. Car. B. r. For in the former case he is enjoyned by Law to do it which is to be preferred before his Clyent but otherwise it is a voluntary act and it is not civil for him to do it nor is he to be pressed unto it Examination of Witnesses which were taken in perpetuam rei memoriam ought not to be made use of at a tryal until the Witnesses so examined be dead Hill 23. Car. B. r. Pasc 24. Car. B. r. 19. Ap. For they were onely examined for their testimonies to be made use of onely in the case of death One that is any wayes concerned in the same Title of the Land in question may not be allowed as a Witness in the cause although he be no wayes then a party to the sute Pasc 24. Car. B. r. For his testimony tends to the corroboration of his own title One that claims any benefit by a Deed may not be allowed as a Witness to prove the Deed. Mich. 1649. B. r. In regard of his interest One that is to be a Witness at a tryal ought not to be examined before the tryal but by consent of both parties Hill 1649. B. S. The Court will upon a motion grant a Habeas Corpus to have a prisoner in prison upon an Execution in the Mareschal Sea to be at a tryal to be
examined as a Witness if the tryal be in London but he that obtains the Habeas Corpus must carry him thither and bring him back at his own charge and peril that he make no escape Trin. 1650. B. S. 29. Junii Q Tamen Whether it ought to be done where the prisoner it in Execution If a Witness be sick so that he cannot be at a tryal and it is so proved by Affidavit and that Witness hath been formerly examined upon intergatories in the Chancery in that matter upon which he is to be examined upon at the tryal the intergatory may be admitted to be read in evidence to the Jury at the tryal 1652. B. S. If one that hath been burnt in the hand for a Felony committed by him and be pardoned for the Felony he may be admitted as a Witness in a cause By Rolle Chief Justice 1652. B. S. For by the pardon his offence is pardoned and he is made rectus in curia Will. A Codicil may be added by Paroll unto a Will in Writing and this Paroll codicil shall be put in writing and affixed to the Will as a codicil This may as well be done as a Will in writing may be revoked by Paroll as it may well be Hill 22. Car. B. r. Pasc 23. Car. B. r. A Will which doth onely concern the bequeathing of Lands c. ought to be proved in the Chancery but if it be a mixt Will and doth concern Lands Goods and Chattels also it may be proved in the spiritual Court Hill 22. Car. B. r. The probate of a Will per testes is no corroboration of the Will Hill 22. Car. B. r. Although the common opinion is otherwise for if it come in question at the Law whether a Will or no Will it is no evidence to a Jury to prove it a Will because it was proved per testes A Will in writing is a good Will to convey Lands although the Will be not sealed Pasc 23. Car. B. r. For the Statute of 32. H. 8. that enables to convey Lands by Will speaks nothing of sealing but onely of writing such wills If the Testator make his Will by Paroll and do give direction to put his words in writing which is done in his life time accordingly this is a good Will to convey Lands although he do not afterwarde declare that writing to be his Will during his Life but if his words were not put in writing till after his death it is not a good will within the Statute to convey Lands Pasc 24. Car. B. For it was not his will in writing during his life as it must be to convey Lands If the Testator do make his Will by Parol which is afterwards put by another in writing by his direction and there is more expressed in the writing then the Testator did express by Paroll yet the Will in writing is good as to so much of it as can be proved was expressed by Paroll Pasc 24. Car. B. r. For so much of it was the Testators will and what is expressed more shall be void If a Will be made by Parol and it is afterwards put in writing and the writing is embezeled lost or destroyed yet is not the Will thereby destroyed if it can be proved by witnesses Pasc 24. B. r. For the Paper is not the mind or will of the Testator but onely a Declaration and Manifestation what his mind and will was and if that can be made appear any otherwayes it sufficieth A Will by which Lands are conveyed ought not to be kept in the Prerogative Office for it doth properly belong to the Legatee of the Lands to support his title by if he be questioned for the Lands Mich. 1649. But they may take a copy of it and enter it into their Leiger Book The Testator may if he be at that time of sane memorye desire another person to set his hand and seal to his Will for him and if he do it the Will is a good Will though the Testator did it not himself Pasc 1650. Maii. 5. If one make his Will in his sickness by the over opportunity of his wife to the intent he may be at quiet and not vexed and troubled by her such a Will shall be adjudged to be made by constraint and is not a good Will By Rolle Chief Justice in the Case of one Hacher and Newborne tryed at the Bar. Mich. 1654. B. r. Q. Tamen For Voluntas non potest cogi and it differs from the cases of making of a Deed by Menace or Duress as me seems FINIS