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
that doth rescue a Prisoner at the Election of the party who is damnified by this rescous Pasc 24. Car. B. r. Yet the judgments are different in these two Actions Where one may bring an Action of Wast for Trees cut down upon his Land it is at his Election to bring an Action of Wast or else an Action of Trover and Conversion for the Trees Mich. 24. Car. B. r. But both he cannot bring An Action upon the Case or an Assize doth lye against him that doth surcharge a Common at the Election of him that is injured thereby Mich. 1649. B. S. If a Prisoner escape that lyes in prison upon an execution an Action of Debt lyes against the Goaler that suffered this escape for the party at whose suit he was in execution but if he were not a prisoner in execution and do make an escape it is in the Election of the party at whose suit he was a prisoner either to bring an Action upon the Case or an Action of Debt against the Goaler for this escape Trin. 1650. 15. Junii B. r. If the Plaintiff amend his Declaration it is at his Election either to pay the Defendant Costs for this amendment or to give the Defendant an emparlance to the next Terme after the amendment and the Defendant cannot hinder this Election 7. Feb. 1650. For the Defendant is at no prejudice by it Estople A recitall in an Obligation is an Estople against which he that made the Obligation shall not be permitted to plead any thing to the contrary if an Action be brought against him upon this Obligation Pasc 24. Car. B. r. For that were to contradict his own act and Deed. If one enter into an Obligation by the title of an Esquire whereas in truth he is a Knight if an Action be brought against him upon this Obligation and he is named an Esquire he shall be Estopped to say in his Plea that he was not an Esquire but a Knight at the time he entred into the Obligation in abatement of the Writ Hill 1649. B. S. For constat de persona that he was by his own admission the same person that entred into the Obligation and did then admit the title of Esquire to be his true addition Where one hath liberty to confess and avoid the matter which the Plaintiff doth set forth in his Declaration against him there he cannot be Estopped to plead such matter for his defence 29. Jan. 1649. Hill B. S. Extinguishment If one have used to hold a Court by Custome as by Law he may if he do afterwards purchase Letters Pattents to enable him to hold this Court he hath thereby extinguished the Custome and must now hold the Court by vertue of his Letters Pattents Mich. 24. Car. B. r. For the party hath thereby waived the Custome and hath made Election to hold his Court by another Authority Error If a Writ of Error be brought to reverse a judgment and afterwards this Writ of Error is discontinued for want of prosecution of the party yet execution cannot be had upon the judgment untill this discontinuance of the Writ of Error be certified from the Court where the Writ of Error is discontinued unto the Court where the judgment was given 21. Car. B. r. If a Writ of Error be brought meerly to stop execution upon the judgment given and without any probable matter of Error to be alledged against the judgment and this doth appear unto the Court where the Writ of Error is brought the Court will not hinder execution to be awarded upon the judgment notwithstanding the bringing of the Writ of Error to reverse it 21. Car. B. r. For the Law doth require speedy justice to be done The assignment of the generall Error upon a Writ of Error brought is to say that the Declaration was insufficient and that judgment was given for the Plaintiff whereas it ought to have been given for the Defendant and such like generall frivolous matters without alledging any particular colourable matter of Error in the judgment 21. Car. B. r. A Writ of Error doth lye for one that is committed by a Justice of the Peace for a forcible entry committed by him Trin. 22. Car. B. r. For the commitment is grounded upon a judgment given by the Justice against the party committed All parties that are grieved by an erroneous judgment may joyn in a Writ of Error to reverse the judgment but persons that are not damnified by it cannot joyn with others that are damnified by it to reverse it Mich. 22 Car. B. r. For the Law will not favour any to sue who have no cause The Bail cannot joyn with the Principall in a Writ of Error to reverse a judgment given against the Principall 22. Car. B. r. For the principall must reverse the judgment alone if it be erroneous because it was only given against him and not against the Bail Errors to a judgment ought to be assigned upon the Record 22. Car. B. r. No person shall be compelled to bring a Record into the Court to make an Error in another Record Mich. 32. Car. B r. for the Law doth favour matters of Record and will affirm them rather then question them without apparent cause shewn If a judgment given in an inferior Court be entred in this manner ideo confideratum est and the words per curiam are omitted as they ought not to be the judgment is erroneous but if a judgment given in a superior Court viz. in any of the Courts at Westminster be entred and the words per curiam are omitted yet the judgment is not erroneous Mich. 22. Car. B. r. For inferior Courts are tied to observe their antient forms of proceedings and not to vary from them He that hath obtained a judgment if he finde that it is Erroneous may move the Court to have it reversed for his own dispatch which the Court will do when they are satisfied what the Error is Mich. 22. Car. B. r. For till such a judgment is reversed 〈◊〉 Plaintiff cannot bring a new Action for the same Cause for which that judgment was given for if he should the Defendant may plead the judgment in barr of his second Action If the Defendant after judgment given against him do bring a Writ of Error to reverse the judgment but doth not certifie the Record into this Court in reasonable time the Court will grant that the Defendant may have execution upon the judgment but he is not bound to certifie the Record the same Terme in which he brings his Writ of Error but if he do it the next Terme after it is sufficient Mich. 22. Car. B. r. If a judgment be given in any of the Cinque Ports if the Defendant will bring a Writ of Error to reverse it he must bring his Writ of Error before the Warden and Constable of Dover and not in this Court Mich. 22. Car. B. r. This is one of the Priviledges that belong unto those that
inhabit within any of the Cinque Ports or members thereof If an erroneous judgment be given in any of the Sheriffs Courts of the City of London the Writ of Error to reverse this judgment must be brought in the Court of Hustings before the Lord Major Hill 22. Car. B. r. For that is the Superior Court A Writ of Error that is brought in the Parliament is made retornable immediately Pasc 23. Car. B. r. A Writ of Error to reverse a judgment ought not to be brought before the judgment is signed Pasc 23. Car. For before it is signed it is not judgment and the Writ of Error runs thus Si judicium sit redditum Yet it is usual to do it in inferior Courts Q Whether the Heir may bring a Writ of Error to reverse an erroneous Judgment given in a personal Action which Judgement doth charge the Lands of the Heir Trin. 23. Car. B. r. He that brings a Writ of Error to reverse a Judgement ought by the Statute to put in good Suerties to pay the debt recovered and the charges of the Judgement and those that shall be caused by bringing the Writ of Error in Case the Judgement shall be affirmed and not reversed upon the Writ of Error Trin. 23. Car. B. r. For it is reason the party should have recompence for his causeless vexation and delay When a Writ of Error is brought to reverse a Judgement the party that brings the Writ must cause the Roll where the Judgement is entred to be marked whereby the other party may take notice upon Record that the Writ of Error is brought and this marking of the Roll is a Supersedeas in it self to hinder Execution to be taken out upon the Judgement but if the Roll be not marked Execution may be taken out upon the Judgement notwithstanding the Writ of Error but if Execution be taken out after it is marked the party grieved may have a Supersedeas quia erronice emauavis to make void the Execution Mich. 23. Car. B. r. It is not usually for the Court of Common Pleas upon a certiorari directed to them upon a Writ of Error brought to reverse a Judgement given in that Court to Certifie the Record into this Court to Certifie the Original Writ upon which the Action was commenced there for that Writ is to remain with the Custos brevium of that Court Mich. 23. Car. B. r. A Writ of Error is not to be brought in Parliament to reverse a Judgment given in the Common Pleas but the Writ of Error ought to be brought in the Court of the Kings Bench. Hill 23. Car. B. r. The Chief Justice onely and not any other of the Judges of the Court ought to allow a Writ of Error that is brought Hill 23. Car. B. r. If a Judgement given in this Court be erroneous in matter of Fact onely and not in matter in Law a Writ of Error may be brought in this Court where the Judgment was given to reverse it and it it is not necessary to bring a Writ of Error in Parliament but if the Judgement be erroneous in matter in Law then a Writ of Error cannot be brought in this Court to reverse it Pasc 24. Car. B. r. 1650. B. S. For error in fact is not the error of the Judges and therefore the reversing of a Judgement given by them which is onely erroneous in matter of fact is not the reversing their own Judgement but it is otherwise if the Judgement were erroneous in matter in Law A Writ of Diminution in a Writ of Error ought not to be granted to be directed to an inferior Court Trin. 24. Car. B. r. If he that doth bring a Writ of Error do discontinue his Writ before the Defendant in the Writ of Error do plead unto it he may have a new Writ of Error but if he discontinue his Writ after the Defendant hath pleaded to it he cannot have a new Writ Mich. 1649. B. S. If by any possibility there may be supposed to be error in the Record any person that may be damnified by this error may bring a Writ of Error to reverse it Hill 1649. B. S. For although he be not named a party to the Record yet the Law hath made him a party to it by subjecting him to dammage by it and it is therefore reason he should be permitted to use all lawful means to defend himself from it A Judgement may be an erroneous Judgement although it be not given for the Plaintiff but the Defendant is thereby acquitted for it may be erroneons in the entry of it for it may it is entred with a Capiatur against the Plaintiff whereas it ought to be in Miserecordia pro falso Clamore Hill 1649. B. S. A Writ of Error is not like another Writ for a Writ of Error may be abated as to one person and yet may stand good as to another person and so cannot another Writ But if the Writ of Error be brought in a Case where it will not lye it must be abated in the whole Hill 1649. B. S. 27. Jan. For there is no ground for the Writ All the parties privies to the Record may joyn in a Writ of Error to reverse it if it be erroneous Hill 1649. B. S. A Writ of Error may be brought to Reverse a Judgement before a Writ of Enquiry of dammages which Issues out upon the Judgement be executed Hill 1649. 2. Feb. B. S. Q. The party who is to have benefit by a Judgement may bring a Writ of Error to reverse it as well as the Defendant Hill 1649. B. S. 4. Feb. If a Writ of habere facias possessionem to deliver possession to the Plaintiff of Lands recovered by him in an ejectione firmae doth contain in it more Acres of Land then were contained in his Declaration the Writ is erroneous but if the Sheriff do deliver possession of more Acres of Land then are contained in the Writ this doth not make the Writ erroneous but there an Action upon the Case doth lye against the Sheriff for doing it or an Assize may be brought against him that hath the possession delivered to him for the Surplusage of the Land delivered unto him 18. Nov. 1650. B. S. A Writ of Error ought to mention before whom the Judgement was given for the reversing whereof it is brought 31. Jan. 1650. B. S. A Writ of Error which is brought to reverse an Out-lawry was wont to be signed by the King Q. Who shall sign it now whether the Parliament or not 3. Feb. 2650. B. S. But now I suppose it shall be signed by the Protector If Judgement be given upon a matter which doth arise out of the jurisdiction of the Court where the Judement is given this is an erroneous Judgement 3. Feb. 1650. B. S. For such a Judgement is given coram non judice and so is voide in toto If a Judgement be entred quod recuperare debeat a Writ of Error cannot be
also navigation An Endictment that is framed upon a Statute ought to pursue the words of the Statute or else it is not good Mich. 22. Car. B. r. For the offence being made by the Statute for which the party is Endicted it is reason the Statute should be punctually recited One that is convicted upon an erroneous Endictment cannot move after his Conviction to have the Endictment quashed but must bring his Writ of Error to reverse the Judgement given against him upon the Endictment Mich. 22. Car. B. r. For after Judgement it is too late for an Endictment is quashed for the insufficiency in it or because no good Judgement can be given upon an erroneous Endictment The Court will not quash an Endictment that is preferred for the publick good although it be not a good Endictment but will put the party Endicted to traverse it or to plead unto it Mich. 22. Car. B. r. For it is by the favour of the Court that any Endictment is quashed for if the Court please they may force the party to traverse or plead An Endictment removed by a Writ of Certiorari into this Court may be sent back again into the County or place whence it was removed if there be cause to do it Mich. 22. Car. B. r. If an Action upon the Case be brought against one for calling another Theif and the Defendant doth justifie the words and upon the tryal it be found for the Defendant an Endictment may be forthwith framed against the Plaintiff to try him for the Felony Mich. 22. Car. B. r. For the Felony appears to the Court by the Verdict found for the Defendant An Endictment doth lie against one that cheates another at play with false Dice Hill 22. car B. r. Or for any other way of cheating at play or otherwise An Endictment doth not lye for a private nusance or other injuries because the nusance or injury done is not made ad commune nocumentum but ad privatum and therefore an Action upon the Case doth only lye for the party that 〈◊〉 damnified by this nusance or injury Hill 22. Car. B. r. 11. Maii. 1651. For Endictments are to punish publike offences onely and done against the publick peace An Endictment lies against one for assaulting and stopping of another in his passing in the High-way 22. Hill Car. B. r. One that it Endicted for Felony may have Councel Assigned him to speak for him Pasc 23. Car. B. r. But such Councel are only to speak for him in matter of Law and not concerning matters of Fact Although a Bill of Endictment be preferred to a grand Jury upon Oath yet they are not bound to find the Bill if they find cause to the contrary and on the otherside although a Bill of Endictment be preferred unto them without Oath made yet they may find the Bill if they see cause Pasc 23. Car. B. r. But it is not usual to prefer a Bill unto them before Oath be first made in Court Every Endictment ought to be preferred against the party for some offence committed by him either against the Common Law or against some Statute Trin. 23. Car. B. r. There ought to be fifteen dayes between the preferring of an Endictment and the convicting the party Endicted Trin. 23. Car. B. r. Q. In what cases for I conceive it holds not in all An Endictment lies against one that makes a false oath in an answer to a Bill in Chancery or in an Affidavit made in a cause depending there or in any other Court of Record Trin. 23. Car. B. r. But Q. for what false oath made in an answer it lieth for it hath been held that though the whole answer be not in all points true yet an Endictment lies not because answers in the Chancery are drawn by Councel and not the party himself Where the party Endicted is Out-lawed upon the Endictment the Court will not quash the Endictment although it be erroneous but will force the party Out-lawed to bring his Writ of Error to reverse the Out-lawry Mich. 23. Car. B. r. An Endictment may be amended the same Term it is brought into the Court by the Clerk of the Peace but the next Term after he cannot amend it Pasc 24. Car. B. r. If onely a word of form be left out in an Endictment yet the Endictment is good but if one word of substance be omitted the whole Endictment is naught Pasc 24. Car. B. r. An Endictment of forcible entry doth lye for a Tenant for years who is forcibly put out of his possession By the Statute of 21. Jac. Pasc 24. Car. B. r. Upon an Endictment preferred against one in the Kings Bench there doth issue out an Attatchment against the party Endicted to force him to appear Pasc 1650. 1. Maii. B. S. Execution An Execution may issue forth out of this Court notwithstanding a Writ of Error be brought in the Exchequer Chamber to reverse the Judgement given here and upon which the Execution is grounded if this Court be satisfied that there is no Error in the Judgement or if the Record be not duly removed out of this Court by the Writ of Error Mich. 22. Car. B. r. One may pray for Execution upon a Judgement given in the Court where it was given although a Writ of Error be brought to remove the Record and to reverse the Judgement if he that brings the Writ of Error do not assign his errors in due time Mich. 22. Car. B. r. The Court may grant Execution upon a Judgement given although a Writ of Error be brought to reverse the Judgement if the Court be satisfied that the Writ of Error is brought meerly to delay the party from his Execution Mich. 22. Car. B. r. For the Law doth not countenance delayes but delights to have speedy Justice done to all parties though it loves not to surprise any person by over hasty proceedings If Execution be not taken within two years after Judgement is given in a Cause there must be a Scire facias taken out to revive the Judgement and Execution cannot be taken out Mich. 22. Car. B. r. But this Scire facias may be taken out of course without moving the Court But if Execution be not taken out in seven years after or longer then a Scire facias cannot be taken out to revive such a Judgement without moving the Court but upon motion the Court will grant it The Court will not deliver one out of prison that lies there in Execution upon an Affidavit But the party may have a Writ of Supersedeas to Supersede the Execution if there be cause Trin. 24. Car. B. r. Be the matter contained in the Affidavit never so strong for the prisoner because he lies in prison by matter of Record and must be delivered by an Act of as high a nature which an Affidavit although it be made before a Judge of the Court and is filed in Court is not The Court cannot divide an Execution
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
suit is not determined and the Court will intend that he will proceed no further and the Defendant is not to be tyed to attend upon his proceedings upon incertain tyes Although the Verdict given be prejudicial to the Plaintiff as he conceives yet he ought to bring in the Postea Pasc 1651. B. S. 13. Maii. For he must abide by the tryal though it may prove prejudicial unto him A Postea is a record of this Court trusted with the Atturney in the cause by the Clerk of the Assize and the Atturney is bound if he be so trusted to deliver it into the Office that the Judgement may be entred by it by the Officer of the Court Trin. 1651. B. S. It is not necessary to annex the Distringas unto the Postea although it is usual so to do Trin. 1651. B. S. Presumption Where the Plaintiff doth declare in an action of Debt for Rent behind due upon an Indenture of Demise for years it shall not be Presumed that there is any other Rent due or Lease made then that upon and for which the Plaintiff doth declare Mich. 22. Car. B. r. For this would be a foreign construction and for which there is no inducement Where divers houses are let to one by one Lease the Court will Presume that the Lessee is in possession of them all if the contrary doth not appear Pasc 24. Car. B. r. For although the Lessee may possibly have passed away his interest in some of them to other persons yet this not appearing to the Court they will not presume it to be so One Court of Justice will not Presume that another Court of Justice will do unjustice except it do plainly appear unto them that it is so Pasc 24. Car. B. r. For each Court ought to have an honourable opinion of the proceedings of another Court Portes The Cinque Ports are not absolutely exclusive of the Common Law so that it may not intermedle in some Cases with the proceedings in their Courts Mich. 22. Car. B. r. For the Common Law is the universal and supreme Judge of the Nation and no place ought to be so priviledged either by custome or charter as totally to be exempted from its jurisdiction for this might cause a failer of Justice in some cases if it should be so A Writ of Error to reverse a Judgement given in the Cinque Ports is to be brought before the Warden and Constable of Dover Mich. 22. Car. B. r. Whether a Certiorari lies to any of the Cinque Ports hath been a question Pasc 23. Car. B. r. Yet a Certiorari was granted out of this Court to remove a Judgement given at Dymchurch in Kent being a limb of one of the Cinque Poots in Rook and Knights case Mich. 22. Car. B. r. Rot. 381. moved by Launcelot Johnson of the Inner Temple Property He that hath the Land that lies on both sides of a High way hath the Property of the soile of the High-way in him although the King hath the priviledge for his people to pass through it at their pleasures for the Law presumes that the way was at the first taken out of the Lands of the party that owes the Lands that lye upon both sides of the way Mich. 22. Car. B. r. By Rolle So that it seems it is called the Kings High-way because of the priviledge that the King hath in it for his people to pass and repass through it and not in respect of any Property he hath in the soile it self He that hath the goods of another person delivered unto him to keep hath a special Property in them by reason of the delivery of them and may maintain an Action against a stranger that shall take them out of his possession although they be not his own proper goods Hill 22. Car. B. S. Because an Action doth lye against him to whom they were first delivered by him that did deliver them if he shall not redeliver them when he is demanded to do it A Legatee of goods hath no Property in the goods bequeathed unto him before they be delivered unto him by the Executor or Administrator Mich. 23. Car. B. r. For the property of them is not altered by the Will The Rector of a Parish Church shall be intended to be the proprietor or owner of the tithes of the Parish if the contrary be not shewed Trin. 24. Car. B. r. Because generally tithes do belong to the Rector although in many places they do not If the Sea or a River shall by violent incursion and breaking forth carry away the soil of one in so great a quantity that he that had the Property in the soile can know where his Land is he shall have it but if his soil or land be insensibly or by little and little wasted by the Sea or the River he must lose his Land Pasc 1650. B. S. 11. Maii. If one to support the credite of a Bankrupt will suffer the Bankrupt to have his goods in his custody and to dispose of the Property of them the Property of the goods shall be accounted to be in the Bankrupt and the other upon a tryal for the Property of them shall be judged to have lost his Property in them Pasc 1651. B. S. 18. Ap. Because by so doing he was a cause in part that others were deceived by the Bankrupt whose credit he supported and therefore he is justly punished Partition A Partition of Lands ought to be made according to the quality and the true value of the Lands and not according to the quantity or equal number of Acres Hill 22. Car. B. r. For the Partition ought to be equal which is so in the latter but may not be so in the division by equality of Acres Payment Payment of money before the day of Payment appointed is in Law a Payment at the day Mich. 22. Car. B. r. For it cannot be in Presumption of Law any prejudice to him to whom the Payment is made to have his money paid before the time In an Action of Debt brought for Rent due upon an Indenture of Demise of Lands the Defendant may plead payment without a Deed and it is a good Plea in Bar of the Action Trin. 24. Car. B. r. Because the Lessee cannot compell the Lessor to make him any discharge by Deed or Writting upon Payment of the Rent If one buy any thing of another he that buyes it must pay the money contracted for to be paid for it before the seller is bound to deliver him the thing sold Pasc 24. Car. For the contract doth imply such a condition in it A Payment of money shall be interpreted to be made according to his intention that payes it and not according to his intention that receives it Mich. 1650. B. S. 22. Nov. For every one ought to interpret the intention of his own act and not another Procedendo If this Court do proceed to try a Custome of London there the Party may move for
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
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
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
avoid trouble and charge which may otherwise befall him by executing the Judgement if he have a violent and malicious adversary After a Writ of Error is brought and allowed by the Court where the Judgement was given for the reversal whereof the Writ of Error is brought the hands of the Court are foreclosed that is stopped from proceeding upon the Judgement any further and there needeth no Supersedeas to be directed unto them nor is it necessary to mark the Rolle Mich. 1049. B. S. For every one ought to take notice of such general Writs as may any wayes concern them If a Writ of Error be brought to reverse a Judgement given upon a nihil dicit the bringing of this Writ of Error is a Supersedeas to stay Execution upon the Judgement notwithstanding the late Statute that enacts that a Writ of Error shall be no Supersedeas to stay Execution upon a Judgement Pasc 1651. B. S. 13. Maii. For that Statute onely extends to Judgements given upon a Verdict and not to Judgements given upon a nihil dicit or upon a non sum informatus or upon a demurrer Surprisal The Court is alwayes very cautious that no person that hath any cause depending before them be Surprised especially in such matters as are finall and penall to the party that is surprised Mich. 1649. B. S. Because by Surprisals the parties Surprised are deprived of making their full defence Setlement If one hath hired a dwelling house in one Parish and be settled in that house but a small time yet this is such a setlement in the Parish where the house is that the Justices of the Peace have no power to make an order to remove the party setled out of the Purish wherein he was so setled except the party so setled be lame or blind or likely to be suddainly chargeable to the Parish where he was so setled Mich. 1650. B. S. 11. Nov. Tryal and Proceedings to it NOtice to an under-tenant of a house or land that there is a Lease of Ejectment sealed and delivered to Try the title of the thing of which he is in possession is no good notice in respect to the upper tenant thereof or to him in reversion whose title is properly concerned and therefore if there be a Tryal and a Verdict and a Judgement in such a case where there was notice onely given to the under-tenant as aforesaid the Court upon a motion and proof of this matter will vacate such a Judgement as a fraudulent Judgement Hill 21. Car. B. r. For it is deceitfully obtained as to him in the reversion whose title is concerned in the Judgement No tryal ought to be had at the Bar the same Term that the Defendants plea is put in but the Term following by the Rules of the Court Hill 21. Car. B. r. Except it be by special rule of Court or in causes depending on the Crown side wherein the King is a party This Court will grant a Habeas Corpus to Try a Felon at the Bar although the Felony was not committed in the County of Middlesex isthere be not a Gaol Delivery in the usuall manner in the County where the Felony was committed Hill 21. Car. B. r. This is done for the expedition of Justice and that the prisoner may not lye long in prison for the Law favors liberty A Tryal in that Court where the issue Tryed was not joyned is not a good Tryal Hill 21. Car. B. r. For there was nothing before them to Try and so it was Coram non judice Where the Plaintiff will not Try his cause in such due time as he ought to do by the Rules of the Court the Defendant may upon warning given thereof to the Plaintiff proceed to the Tryal of it himself Hill 21. Car. B. r. That he may free himself from the Action that is brought against him Justices of Peace may by there Commission Try a murder committed in the County where they are Justices Pasc 22. Car. B. r. But they do not often do it but leave such matters to be Tryed by the Justice of the Gaol Delivery at the Assizes If any of the Defendants Witnesses to be used at a Tryal do live above fourty miles distant from London the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes notice of the Tryal before he Try his cause Pasc 21. Car. B. r. That the Defendant be not surprised for want of sufficient time to get his Witnesses to be at the Tryall Upon a Tryal at the Bar when the Jury is at the Bar and the Court ready and the panell of the Jurors names is delivered to the Secondary he bids the cryer call the Defendant which he doth and if his Councel say they appear then the Secondary bids both parties take heed to their challenges and then proceeds to swear the Jurors but if he do not appear after thrice calling by the Cryer the Plaintiffs Councel do pray the Court the Verdict may be taken by default Trin. 24. Car. B. r. It is called a Verdict by default because if it pass against the Defendant where the Defendant had right and might have defended himself it is not the fault of the Court or Jury but his own that would not appear and defend his cause Where a Tryal is had by provisoe the Plaintiff may be called before the Jury is sworn if the Defendant do require it Trin. 22. Car. B. r. For the Plaintiff is as it were in the place of the Defendant because the cause is brought to a Tryal by the Defendant The Court will not grant a Tryal at the bar except there be oath made that the matter to be Tryed is very difficult or of great value Mich. 22. Car. B. r. In which cases it is fit the Tryal should be at the Bar where Tryals are more solemn and where more time may be spent in the Tryal then can be at the Assizes After a Tryal hath been in a cause the Court ought not to order that there shall be a new Tryal of it except it doth appear that there was a surprisall in the Tryal had or some fraudulent miscarriage in it for if they might in any case they please order a new Tryal this would be for the Court to have an Arbitrary power which the Law will not permit Mich. 22. Car. B. r. For this would weaken the Common Laws to the prejudice of the people Where warning is given of a Tryal to the Atturney in the cause and the Atturney cannot give notice of this warning timely enough for his Clyent to prepare for the Tryal the Court will not force the Atturney to go to a Tryal but will give longer time Mich. 22. Car. B. r. Because the Court will not surprise any person and such Tryals very seldome do determine the business but beget more trouble and charges to both parties Where there ought to have been a place alleadged whence the venue should come and there
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
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
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
cases doth use at the prayer of the party who is concerned to dispense with the not speaking to it at that time and doth give the party further time to speak in it without prejudice to him and this is called the putting off of a Peremptory Proclamation At the latter end of the Assizes there useth to be Proclamation made that no more records of nisi prius be put in to be tryed at that Assizes and that they shall not be received after and all persons that are to attend their tryals if the Records of nisi prius to be tryed be not then put in may depart and are bound to give no longer attendance at that Assizes Pasc 1652. B. S. Quashing of Endictments Orders c. THis Court hath authority to Quash Orders of Sessions Presentments Endictments c. made in inferior Courts or before Justices of the Peace or other Commissioners if there be cause that is if they be defective in matter or form Mich 22. Car. B. r. To Quash comes of the French word Quasser or rather Casser which signifies to break in peices to cancel destroy make null or voide But this Quashing is but by favour of the Court for the Court is not tyed Ex Officio to do it but may leave the party to plead unto them and to take advantage of the insufficiency of them by pleading to them as in many cases they use to do An Endictment may be Quashed for false Latine or for having in it insensible words or English words or for defect in the form of it Trin. 23. Car. B. r. But now by the late Act it may be in English The Court will not Quash an Endictment of forcible entry after a Verdict before hearing of both the parties concerned in the cause Mich. 23. Car. B. r. The Court will not Quash an information for a fault in the body of it but will leave the Defendant to demur unto it if he believe it to be insufficient but it is otherwise of an Endictment Pasc 1650. B. S. 24 Maii. Quaere rationem Quo Warranto A Quo Wvrranto was brought for vexation upon fourty eight points and the Court being moved in it did order that the prosecutor should wave that Quo Warranto and should bring a new one and therein insist onely upon three points but that he might proceed to a tryall upon it in such time as he might have done upon the old Hill 22. Car. B. r. Quaere Whether one that is under an Arrest may make an Obligation to the Plaintiff at whose sute he was arrested for his appearance to his Action Pasc 24. Car. B. r. Pasc 1648. B. S. In Leach and Davyes Case If a Lessee for years cut down Timber upon the Land let unto him and carry it away from off the ground Q. Whether the Lessor may bring an Action of Trover and Conversion for the Timber Mich. 24. Car. B. r. Whether a fine levyed of Land shall extend to a contingent use of that Land Mich. 24. Car. B. r. In Thomas and Kemishes Case If there be two Tenants in Common of Land and one of them dye Quaere How his wife shall be endowed of the Land which her husband beld in common whether by metes and bounds or not 16. Nov. 1650. B. S. Return of Writs c. THe Court was moved that a return made upon a Habeas Corpus might be amended before it was filed and it was granted Hill 21. Car. B. r. But after it is filed it cannot be amended for then it is a Record of the Court. If a special Scire Facias do issue forth a nihil cannot be returned upon this Scire Facias Hill 21. Car. B r. For a nihil is a general return which ought not to be in this case because the Writ is a special Writ If an inferior Court do make an ill return of a Habeas Corpus the Court will grant an alias Habeas Corpus and also set an amercement upon them for making an ill return of the former Habeas Corpus Hill 21. Car. B. r. Because thereby viz. by the ill return Justice is delayed and the party grieved is also put to more trouble and charge to obtain it If a Writ out of this Court be directed to an inferior Court which the inferior Court is not bound to allow but may proceed notwithstanding the Writ sent unto them yet they ought to make a Return upon the Writ and in the Return to shew the cause why they do not allow the Writ but do proceed in the Cause notwithstanding the Writ Hill 22. Car. B. r. For the Writs of this Court are to be obeyed if there be not very good reason shewed to the contrary why they ought not to be obeyed A prisoner brought to the Bar upon the Return of his Habeas Corpus may have a Copy of the Return if he pray it that he may take his exceptions to the Return Mich. 22. Car. B. r. But the Return must be first filed If the Under Sheriff of a County may be justly challenged as partial to the Plaintiff or the Defendant in respect of kindred or alliance or some other cause that may render him not to be indifferent between the parties and he be to execute a Venire Facias to summon to a Jury to try an issue joyned betwixt the Plaintiff and Defendant in such cases the Court will upon motion of the party that is likely to be prejudiced if a Jury should be returned by him order that the High Sheriff of the County shall himself Return the Jury Mich. 22. Car. B. r. If one be arrested by the Sheriffs Bailiff and a Bond be given unto the Sheriff that the party arrested shall appear at the Return of the Writ the Sheriff ought not to Return a Non est inventus but a Cepi Corpus and if he do Return a non est inventus the Plaintiff may bring an Action upon the Case against the Sheriff for making a false Return or else the Court may amerce him for it and if the Sheriff do Return a Cepi Corpus and yet the party Arrested doth not appear at the day the Court will encrease amercements upon the Sheriff untill he make the party to appear Hill 22. Car. B. r. For when the party is arrested he is in custody of the Sheriff and he ought to keep him at his peril and bring him in at the day and it is of favour to the party that he takes Bond of him for his appearance for he is not bound to do it and if he suffer by it he may take his remedy against the party upon the bond It is not requisite that the Sheriff in making a Return should insert his title or name of dignity or Christian or surname but onely by his name of office Hill 22. Car. B. r. Yet if he do insert those names which is usually done the Return is not thereby hurt or made defective If the Sheriff Return a Cepi Corpus and