Corpus said that he had no more to say than what he had formerly offered only he added that it was a tender and a leading case and therefore to be well advised of Roll chief Iustice For the first part of the return Return I conceive it too general for it doth not appear in what the books are scandalous for the publishing whereof he was committed 2ly I conceive that the Order of Parliament ceaseth with the Parliament Order which is dissolved as an Order of one Session of Parliament ends with the Session Committee and is not like an Act which continues after the Parliament and all Committees made by order of Parliament do cease by dissolving of the Parliament but those which are made by Act of Parliament doe continue afterwards and this individual Parliament being dissolved they can now make no further order Bail and so the prisoner may lie perpetually in prison and he hath already lain long in prison and therefore it is reason he should he bailed The prisoner was admonished to be quiet and not henceforth to disturb the State The prisoner was ordered to bring sureties to be bound in 500 l. for his appearance here the next Term and sic de die in diem until Mr. Attorney will proceed against him if he will proceed at all Hudson and Dickenson Hill 1653. Banc. sup THe Court was moved on the behalf of the Plaintif For entry of a Nil capiat per Billam for expedition that a Nil capiat per billam may be entred against him for expedition in an Action of Trespass for taking away his Cattel wherein he had obtained a Verdict because he had declared for taking away 6 Mares and Colts and did not shew how many Mares and how many Colts particularly Roll chief Iustice Let a Nil capiat per Billam be entred Pinchard and Fowke Hill 1653. anc sup PInchard brought an Action upon the Case against Fowke Arrest of Iudgement in an Action upon an Assumpsit upon an Assumpsit and declares that the Defendant in consideration that the Plaintif would forbear to protest a Bill of Exchange drawn upon the Defendant that he would pay the moneys when he should next come to London And upon an Issue joyned and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that here is no consideration set forth to ground the promise upon for he doth not shew that he came to London but shews that he dyed at Plymouth and came not to London Roll chief Iustice Consideration Duty The coming to London is alleged to no purpose for the payment of the money was a duty and the monies to be paid were received beyond Sea and so is a duty and made a good consideration therefore let the Plaintif take his Iudgement Pasc 1654. Banc. sup IT was said by the Court that when an Informer hath attached his Action in a Court another Informer cannot inform for the same thing A good plea against an Informer and it he do it is a good plea in Bar to the second Informer that an information is depending against him for the same thing Note Trin. 1654. Banc. sup BY Roll chief Iustice A Bailif of a liberty hath return of writs How a rescous is to be expressed Bailif and therefore a rescous made from him must be expressed to be out of his hands but a rescous made from the Sherifs Bailif must be expressed to be out of the hands of the Sherifs Bailif for the Bailif is but the Sherifs servant Patnell and Brooke Trin. 1654. Banc. sup THe Court was moved upon an Affidavit to stay Execution upon a judgement given for an Administrator To stay execution upon a judgement Audita querela because the Letters of administration were repealed before the judgement entred Roll chief Iustice The matter comes not legally in question before us you must bring your audita querela yet let Hern the Secondary examine it Trin. 1654. Banc. sup THe Court was moved for a writ of Distringas against the Inhabitants of a Town in Huntingtonshire For a Distringas against Inhabitants of a Town Plea for throwing in of banks of the Earl of Bedfords in his drained lands Roll chief Iustice Take it but at the return of the writ the Inhabitants may plead to you notwithstanding Noy the late Kings Atturney would not have suffered it Note and the Sherifs of London Trin. 1654. Banc. sup AN Action upon the Case was brought against the Sherifs of London for not returning a fieti facias The Defendants plead not guilty Moved that the Defendants might plead specially and a Iury was returned to try the issue and after the Defendants filed the return of the Scire facias Wadham Windham moved that the Defendants might waive their general plea of not guilty and might plead specially viz. That they had executed the writ Roll chief Iustice Amendment You have pleaded already and it is in our power whether we will suffer you to alter your plea or not and we will not doe it without the Plaintif will consent therefore make the best of that plea you have pleaded upon your tryal Oyles and Marshall Trin. 1654. Banc. sup VVIld upon a rule to shew cause why a Prohibition should not be granted to the Court of Policy of assurance in London Against granting a Prohibition to the Court of Policy of assurance shews for cause that the Defendant had pleaded there and the Plaintiff had replyed and that the cause was ready for Tryal and that the principal matter was fit to be tryed there and they had authority to try it Roll chief Iustice If they have Iurisdiction of the principal matter they have also Iurisdiction of all matters incident thereunto Iurisdiction Tryal and they may try them according to the course of their Law so that it be not contrary to the Common-law Therefore discharge the former rule Trin. 1654. Banc. sup BY Roll chief Iustice Who of common right are to repair a Sea-wall If no particular person by Custom be bound to repair a Sea-wall wherein a breach is made the whole Level are bound to do it Trin. 1654. Banc. sup VPon evidence given in a Tryal at the Bar between Sir Iohn Bridges How a Will may be revoked and my Lord Chandois it was said by Roll chief Iustice that one may revoke a Will in writing by Paroll and may revive it again by Paroll Trin. 1654 Banc. sup THe Court was moved for a Habeas Corpus for one out-lawed in felony For a Habeas Corpus because he cannot be tryed there where the felony was done untill the Outlawry be reversed But it was prayed for the Protector that a Habeas Corpus may not be granted because the Prisoner stands committed for divers felonies and rapes Roll chief Iustice He shall be brought hither by a Habeas Corpus to reverse the Outlawry but we
demurred to the plea Demurrer and for cause shews that it doth not appear that the three Iuggs of Beer were paid or tendred by the Defendant Iudgement and upon this exception judgement was given for the Plaintif c. MEmorandum Trinity Term 1655. beginning the 15 of Iune being Friday Iustice Ask late alone in the Court of the Vpper Bench being then the sole Iudge there The late Lord chief Iustice Roll having surrendred his Patent the Tuesday sevenight before being the 5 of Iune as I was enformed MEmorandum Afterwards the same day Iohn Glyn his Highness the Lord Protectors Serjeant at Law took his place of Lord chief Iustice of England in this Court and the Lord Lisle one of the Lords Commissioners of the great Seal of England made a Speech unto him according to the Custom and Serjeant Twisden moved for a tryal at the Bar the next Michaelmas Term which was granted nisi c. The Protector and the Town of Colchester Pasch and Trin. 1655. Banc. sup VPon a Mandamus to the Bailifs of Colchester to restore Bernardiston to the Recorders place of that Town Exceptions to a return of a Mandamus to the Town of Colchester upon the return they certified the causes for removing him and why he ought not to be restored 1. That one Good all being endicted upon the Statute for having two wives and convicted thereof did pray his Clergy and was refused it by Bernardiston and was condemned to die and after at another Sessions he admitted him to his Clergy and so he was burnt in the hand 2ly That he neglected to sit at the Sessions whereby the Sessions for the Town could not be held duly as they ought to have been 3ly That he appointed a Deputy Recorder to execute his place for him who was not an utter Barrester and contracted with him for 40 l. per annum 4ly That he neglected to hold Courts whereby causes could not be tried to the prejudice of many Latch of Councel with Bernardiston to the first cause answered That although it was an Error in Iudgement to deny the Clergy where it should have been granted yet this was not committed as he was Recorder of the Town but as a Commissioner of Oyer and Terminer which was to endure but for a year and was a distinct power from his power as he was Recorder and executed by him with other Commissioners that were joyned with him in Commission To the second he answered that here doth not appear to be any prejudice to any by his not holding the Sessions nor that there was any cause to hold them and besides it doth appear that the Sessions where he neglected to sit were not legally appointed to be held for they were appointed by them that had no authority to do it viz. by the Maior and Baylifs whereas they ought to be appointed by the Maior Baylifs and Recorder and next the Iustices are mis-named for they are called the Iustices of the Borough whereas they ought to be called the Iustices of the King 4ly Here doth not appear any appointment at all of the Quarter Sessions To the 3d. he answered that it is not necessary that he should appoint a Barrester to be Deputy-Recorder and to say that he was not fit to be Deputy-Recorder is too general a charge but it ought to be shewed in what he was unfit and his contracting with him for mony concerns not the Coporation neither is it malum in se but is only punishable by the Statute of 5 Ed. 6. And as to the last viz. his neglecting to try the issues joyned at the daies appointed it is not a crime material to deprive him of his free hold and few Stewards do otherwaies for they do usually stay till they have a competent number of Causes to try before they will sit and here are but six causes alleged to be untryed and one of them was not tryable in that place nor is it averred that he had notice given him of any issues to be tryed and so the offence is the less 5 Rep. Semaignes case nor doth it appear that any tryal was disappointed by his absence for it appears not that there was any issues joyned or any warning given for tryal in any of the Causes during the time alleged wherein it is said he did for bear to sit to try them Lastly here is no just way of proceeding to deprive him of his place though he might be deprived for he was never summoned to appear to answer the matters objected against him as he ought to have been and so is Cook in Sir James Baggs case Sergeant Glyn on the same side insisted only upon the last matter urged by Latch which he said went through the whole Case Roll chief Justice He ought to have been heard how else can it be known whether they had just cause to remove him or not and it is very hard to deprive one of his free-hold without hearing him make his defence The Court was moved at another day for their opinion and then Sergeant Twisden endeavoured to answer some exceptions taken to the retorn by Windham and to make good the exceptions taken against Bernardiston much to the same effect as formerly Whereupon Roll chief Justice answered you ought to have convented him before you had put him out that you might have heard what excuse he could make for his absence else how can it be known whether he had a just cause of absence or not Therefore let him be restored nisi Iudgement nisi c. At another day being in Trinity Term 1655. Sergeant Maynard shewed for cause why he ought not to be restored 1. That he held not the Courts duly but did absent himself for sixteen months without any cause to the endangering of the forfeiture of the Charter of the Town and sâ—â—d that if an Officer of Record do wilfully and without cause absent himself from his Office it is a for feiture thereof for by so doing the Charter is forfeited Forfeiture of an Office and here is no supposition of any excuse 2ly The retorn is good though no notice was given him for he ought to take notice of himself as he is an Officer of that Court and endict him they cannot and if his offence be true de facto they may put him out of his place as a Master may put away his Servant and this their Charter warrants them to do Twisden on the same side said he hath contracted with another for his place and so is disabled by the Statute Wild He could not be here convented for it is expresly said that he went to unknown places Glyn chief Iustice The main business insisted on was his absence but here was no notice given to him and you ought not to proceed against him and never hear him though the crime objected against him be true for it may be he was sick or had some other just excuse for his absence and
assignment is of the debt of this man due to the Bankrupt be it more or be it lesse and hath no reference to the accompt and reckoning between them so the Assignment is good though it agree not in the sum with what is justly due and the issue is upon the Assumpsit Issue Admittance and not upon the Assignment for the Assignment is admitted by the Defendant and so not material whether it be an Assignment of the true sum or not Iudgement was given for the Plaintiff Bruer and Sowthwell Mich. 23 Car. Banc. Reg. THe Plaintiff in this Case moved again for judgement Arrest of Iudgement in an Action upon the case upon an Assumpsit notwithstanding what had been formerly spoken to arrest it for though the word discomputando in the Declaration be insensible yet there is enough in the declaration to ground the Action and that is the breach of the Assumpsit assigned to deliver the Currants bought of the Defendant and the word discounting shall not hurt it Bacon Iustice was of the same opinion But Roll Iustice said Assumpsit Contract all the bargain is here set forth upon which the Assumpsit was made and if the bargain be ill the Assumpsit is not good Hales of Councell with the Plaintiff said if part of the bargain be insensible and part not yet a good Assumpsit may be grounded upon that part which is good But Roll said the bargain here is intire and if part of it be not good it is all naught yet he said if part of a bargain be good and part void yet an Action may be brought upon it The rule was That it should be argued again on both parts Seaman against Edwards Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 920. SEaman brings an Action against Edwards Demurrer to a plea pleaded by an Executor Plea Executor and declares against him as Executor of I. S. whereas the truth was that I. S. made 3 others Executors and not the Defendant The Defendant pleads that he is not the same person named in the Will To this plea the Plaintiff demurs and for cause shews that he may be an Executor de son tort demesne though he be not named in the Will and so may be chargeable and therefore he ought to have pleaded ne unques Administred come Executor and of this opinion was the Court and ordered the Defendant to shew cause why Iudgement should not be given against him Iudgement was given for the Plaintiff Dod against Eaton Mich. 23 Car. Banc. Reg. DOd brings an Action upon the Case against Eaton for speaking these words of him thou hast the French Pox Exception to a special verdict the Defendant pleads not guilty the Iury upon this Issue find a special verdict viz. That the Defendant had said thou hast had the French Pox whereupon the Defendants Councell said that the Verdict doth not maintain the words laid in the Declaration and that the words that are found in the verdict are not actionable and so the Plaintiff can have no Iudgement and cited 15 Jac. Nutcombes Case Verdict and the words found are not issuable and so the verdict is imperfect 40 Ass 41. Kelway 6. 18 Ed. 3. fol. 19. Pasc 33 Eliz Banc. Reg. Dame Ratcliffs Case Dyer Sr Iohn Burges Case prove that the verdict is too short Roll Iustice said if the verdict be imperfect there may be a new venire facias Venire de novo and so it is against the Plaintiff for he cannot have Iudgement Panell of Councell with the Plaintiff cited Osborn and Brooks Case that the verdict was for the Plaintiff But Roll Iustice said that the Iury cannot find a thing that is not within the Declaration to maintain the Declaration for they ought to hold themselves to the issue and that they have not here done and therefore the verdict is imperfect and there must be a new venire facias to try the issue again for Iudgement cannot be given upon this verdict for they do not find that he spake not the words in the Declaration which are the most material so that the matter is not found fully enough for us to proceed to Iudgement one way or other Adjourned Poole against Coply Mich. 23. Ca. Banc. Reg. POole brings an Action of Trespasse against Coply Arrest of Iudgement in Trespasse and hath a verdict against the Defendant It was moved in arrest of Iudgement that the Declaration is incertain for the Plaintiff declares that the Defendant cepit et asportavit decem coria anglice hides and the word Coria is uncertain for it may be coria equorum or coria ovium or of any other Cattel To this Roll Iustice said Anglice that it is well enough for the Anglice had made the woord certain and it is the usual maner to plead it thus The Court ordered the Plaintiff should have his Iudgement if better matter were not shewn to the contrary Hull against Gurnet Mich. 23 Car. Banc. Reg. HUll brings an Action of false imprisonment against Gurnet Demurrer upon a special plea in false imprisonment the Defendant pleads a speciall justification that he took and imprisoned the Plaintiff by virtue of a Commission granted out of the Court of the Admiralty to examine the taking away of certain goods which were wracked by the Sea Custom To this plea the Plaintiff demurred and shewed for cause That the Defendant hath not set forth the Custom of the Admirall Court that the first processe thereof is a Capias and so it appears not whether he have proceeded right or no. Admiralty 2ly It doth not appear that the matter for which the Commission was granted is Maritime and other matter they ought not to medle withall The Rule of Court was to shew cause why Iudgement should not be given against the Defendant upon this plea. Smith against Stone Mich. 23 Car. Banc. Reg. SMith brought an Action of Trespasse against Stone pedibus ambulando Special justification in trespasse pedibus ambulando Trespass the Defendant pleads this speciall plea in justification viz. That he was carryed upon the land of the Plaintiff by force and violence of others and was not there voluntarily which is the same trepasse for which the Plaintif brings his Action The Plaintiff demurs to this plea In this case Roll Iustice said that it is the Trespasse of the party that carryed the Defendant upon the land and not the Trespasse of the Defendant as he that drives my Cattel into another mans land is the Trespassor against him and not I who am owner of the Cattell Mathew against Herle Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1554. MAthew brought an Action of trespasse against Herle for breaking his Fence and entring into his Close c. Demurrer to a plea in trespass quare clausum fregit The Defendant pleads that I. S. was seised of this land wherein the Trespasse is
a Plea was peremptory or that there might be a Respondes ouster Peremptory Plea The Defendant appears in Michaelmas Term and imparâ—s to Hillary Term and before the day of Continuance pleads a Plea in abatement to which the Plaintiff demurs Yard of Councel with the Plaintiff said he conceived the Plea was peremptory to the Defendant because it comes after an imparlance a Continuance and so comes in lieu of a Peremptory for the Law admits but one delay and therefore the Defendant should have pleaded in Chief and not having done it his Plea shall be as if it were a Plea in Chief over-ruled and cited Long Quit. E. 4. f. 139. Roll Iustice You cite not the Book as it is here is but a Plea in Abatement and the Continuance makes it not peremptory 2 Ed. 4. f. 10. A second Exception was that the Plaintiff hath not demurred upon the Plea but pleaded to issue and here is a departure from the general issue Departure 34 H. 6. f. 8 9. Roll Iustice The Book is against you for upon a Demurrer a Plea dilatory is not peremptory but upon an issue joyned it is Yard The delay of the Demurrer makes it peremptory 22 H. 6. f. 55. Roll Iustice The Book cited is against you and in 50 E. 3. f. 20. Difference There is a difference taken betwéen the delay of the Court and the delay of the party and here is no delay in the party for he might have been forced by the rules of the Court to hasten the proceedings and the Book of 34 H. 6. is against you The Plea in Abatement ought not to have been received after imparlance but if it be received a Demurrer upon it it cannot be helped and if one plead a Plea after imparlance Plea which ought not to be pleaded the Plaintiff may pray the Court to over-rule it but if he demur upon it he admits that the Plea may be and one may plead a Plea in Bar by way of abatement e contra Therefore let the Defendant plead in Chief if cause be not shewed on Friday to the contrary Burges against Dynham Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1191. BUrges brought an Action of Trespass against Dynham for taking 24 load of Tymber Demurrer upon a Plea of Iustification The Defendant justifies that he took the Tymber as a Deputy of a Purve your to the King for the reparations of the Mansion houses of the King To this Plea of Iustification the Plaintiff demurs and for cause sheweth that it doth not appear that the Defendant hath any authority by the Common-law or by Statute to take this Tymber for the Commission which gives this authority ought to be renewed every sir Months Commission and it doth not appear that it was so in this Case 2 Institut f. 545. 10 E. 4. 2 3. 2ly He hath not shewed that the Houses were in decay when he took the Tymber and he cannot take it to make a Common stock to repair them afterward when they should fall to decay Purveyours 3ly Purveyours ought to pay ready mony for the commodities they take and he doth not shew in our Case that he paid ready mony for the Tymber by the Stat. 36 Ed. 3. C. 2. 47 Ed. 3. f. 8. but by 22 Ed. 3. Tit. Bar. 259. it seems to be otherwise but the Case there differs from this Case for there it was that a Purveyour may take Horses to use for a time without paying mony but it was not to alter the property 4ly He hath not shewed that he endevoured to agree with the Plaintiff for his Timber as he ought to have done Plea Hill 2 Car. rot 509. Parker and Sturgens case 5ly The plea is hudled up and is not pleaded particularly and distinctly as it ought to be so that the Plaintiff knows not how to take an issue 10 H. 7. The rule of Court was to bear the other side Friday next Brereton and Monington Trin 24 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour Court and the Error assigned was Error to reverse a judgement given in an infetiour court Plaint Amendment that the Plaint was entred against Francis and the proceedings were against Iohn Roll Iustice said that it was not good for a Plaint is in the nature of an original writ and therefore if that be erroneous it cannot be helped though it be after a verdict And therefore shew cause Saturday next why the Iudgement should not be reversed Gallop against Symson Trin. 24 Car. Banc. Reg. CHase brings an Action of Trover and Conversion against Gallop Error to reverse a judgement in a trover and conversion and his wife and a stranger in the Common pleas and hath a verdict and a Iudgement against them The Defendant brings a writ of Error to reverse this Iudgement and assigns for Error that the Plaintiff declares that the goods for which the Action is brought venerunt ad usum ipsorum viz. of the Husband and his wife and the stranger which cannot be Declaration for they cannot be said to come to the use of a Feme covert Roll Iustice This is not good for he ought not to declare that the goods came to the use of the Feme but to the use of the Husband only And therefore reversetur judicium except cause shewn to the contrary Saturday next Wainewright and VVhitly Trin. 24 Car. Banc. Reg. VVAinewright brought an Action upon the Case against Whitly Arrest of judgement in an action upon the case for these words spoken of him Thou art a theef and hast broke my Chest The Plaintiff hath a verdict The Defendant in arrest of Iudgement moves that the words are not actionable But Roll Iustice said notwithstanding my Lord Hobarts opinion he held the words are actionable for the word and is cumulative and aggravates the former words Cumulative Explanatory are not barely explanatory and the subsequent words are violent and may very well stand with the former Therefore let the Plaintiff take his Iudgement The King and Camell Trin. 24 Car. Banc Reg. ANn Camell endicted at Southwold in Suffolk for Felony and Witch-craft was brought to the Bar by an habeas corpus An arraignment for witch-craft and was here arraigned The prisoner desired Walker for her Councel Roll Iustice asked her for what cause and matter she did desire Councell To which the prisoner making no answer Roll Iustice viewed the Endictment and upon that assigned her Walker for her Councel and gave him the next day to shew his exceptions against the Endictment at which time Walker desired that the Endictment might be read which was done and upon the reading of it he took these exceptions 1. To the caption wherein it is expressed that the Endictment was taken in pena cessione Endictment where it should be in plena cessione To this Roll answered if
or else let the Plaintif take his judgement Trin. 24 Car. Banc. Reg. A Copyholder being sued in this Court for certain lands moved that the Steward of his Lords Court For a Steward of a Court to bring in the Court Rolls to whom he was a Copyholder might be ordered to bring in the Court-Rolls into this Court that by them he may be the better enabled to defend his title to the lands But Roll Iustice said He cannot be ordered to doe it by this Court therefore we will make no rule in it Trin. 24 Car. Banc. Reg. AN Action of Debt was brought for Rent in the Common Pleas Error to reverse a judgement in the Common Pleas fortent Misnosmer where the Plaintif had a Verdict and a judgement and a Writ of Error was brought in this Court to reverse this Iudgement The Errors assigned were 1. There is an Indenture recited to be between the Plaintif and Iohn Barber whereas it should have been Iohn Barker Roll Iustice answered It may be that he is known by the one name and the other and then it is well enough A second Exception was It is said per indenturam signatam and doth not say deliberatam and then it is no deed if it be not delivered To this Roll Iustice answered Deed. If he say per factum suum it is well enough notwithstanding for that implies it to be a perfect deed 3ly He declares for Rent of Houses in Kent street and doth not shew in what Parish Kent street is Adjourned Trin. 24 Car. Banc. Reg. THe Court was moved for a habeas corpus for a Prisoner in the Kings Bench Prison that he might be a writnesse in a cause to be tryed at the next Assises in Darby Shire But Roll Iustice answered we will grant no habeas corpus for this is but a trick of the party himself to gain his Liberty that he may go a hawking and hunting this long vacation But I have known it granted for one to be a witnesse at a trial at Yield Hall but at the charges and peril of the Party for whom he was to be a witnesse if he escape Mich. 24 Car. Banc. Reg. VPon a motion for a habeas Corpus for one in Execution upon a sentence given against him in the Court of the Admiralty For a habeas corpus for one in Execution upon a sentence in the Admiralty It was said by Roll Iustice That if one be sued in the Admiralty to a sentence and be in Execution upon it and be brought hither by a habeas corpus if upon the retorn it doth not appear that the Admiralty had not jurisdiction of the cause but it appears only that they had proceeded to a sentence against the rules of their own Court This Court will not deliver the Prisoner out of Execution Appeal for he ought to have made his appeal before he was taken in Execution And so is it touching the proceedings in other Courts of equity Cage Mich. 24 Car. Banc. Reg. ONe Cage was in Execution in the Kings Bench upon a Iudgement had against him for a hundred pound To vacate a satisfaction acknowledged upon a Iudgement The Plaintiffs Attorney by fraud without the consent of his Clyent acknowledgeth satisfaction upon this Iudgement afterwards the Attorney of the Defendant without the consent of his Clyent acknowledgeth another Iudgement for the same Debt The Plaintiffs Councel moved that the Defendant might be in Execution upon the first Iudgement and that the satisfaction acknowledged thereupon might be vacated Roll Iustice answered Commitment The Attorney ought to be committed for acknowledging the second Iudgement without Warrant But here are two frauds one of each side so that there is fraud against fraud and so the partyes are left to their remedyse one against the other but both the Attorneys shall be committed for their false practie And we will examine the whole truth of the matter Saturday next against Loveday Mich. 24 Car. Banc. Reg. THe Court was moved upon an affidavit that one of the Iurors that gave the verdict against the Plaintiff had a sute in law depending at that time with the Plaintiff and therefore that the tryal was not indifferent For a new tryal after verdict because a Iuror not indiste rent Challenge Tryal and therefore it was prayed there might be a new tryall But the Court said it could not be and asked the party why he did not challenge the Iuror for this cause at the tryal for want of which he had now lost that advantage Stradling and his wife against Boreman Mich. 24 Car. â—anc Reg. STradling and his wife brought an Action of Trespasse of Assault and battery Arrest of judgement in Trespasse Ioyn in Action and taking of a horse agianst Boreman and the Plaintiffs declare ad damnum ipsorum and have a verdict the Defendant moved in arrest of Iudgement and shewed for cause that the Baron and Feme cannot joyn in this Action but ought to bring severall Actions for the wrong done to each was severall The Iudgement was thereupon stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. AN Action upon the Case was brought for speaking these words Arrest of juogement in an action upon the Case He is gon and dares not shew himself for Debt and he is a Banckrupt for ought that I know the Plaintiff had a verdict the Defendant moves in attest of Iudgement that the words are not actionable because they are general and uncertain But the Court held that all the words taken together are actioanble but stayed the Iudgement for a week Mich. 24 Car. Banc. Reg. IVrors who appeared for a tryal at the Bar which fel off for want of a full Iury Iurors move for their charges prayed the Court they might have their charges because they came a great way and had attended long in town The Court answered them that it was their neighbours fault who did not appear that the tryal went not on for both the partyes are ready and if the cause had been tryed you should have had all your charges But now we can order nothing Mich. 24 Car. Banc. Reg. VPon a Retorn of a certiorari to remove an order of Sessions made against a Parish for not repairing of a high way Exception to an order and fine of Sessions Hales of Councel for the Parish took this exception viz. That the fine was set upon the Parish without any processe issued out against the Parish only upon a certificate of one of the Iustices of the peace made upon his own view that the way was not repaired and so the Parish was condemned before they were heard To this the Court answered That a Iustice of Peace may make a certificate upon his own view Certificate of the want of reparations of a Highway by the Statute Therefore bring a certificate that the way is repaired else we will do nothing for we
are accompted perils of the Seas Wood against Clemence Mich. 24 Car. Banc. Reg. Hill 22 Car. rot 804. VVOod brought an Action of Debt upon an Obligation to stand to an award against Clemence Demurrer upon an award pleaded The Defendant pleaded that the Arbitrators made no award The Plaintiff replies that the Vmpire made an award and sets it forth at large The Defendant demurs and for cause shews that it appears by the pleading that the Vmpire was chosen before he ought to be for it appears not that the Arbitrators could not agree in making the award or that they had any power to make an Vmpire 2ly The Award is made for satisfaction to the Owners and Mariners of the Ship concerning which the submission was made Award and one of them is the Plaintiff in this Action and they cannot arbitrate that the monies which concern one shall be paid to another and so all the award is naught Also here is nothing arbitrated concerning Iohn Acton the Master of the Ship who is one of the parties within the submission Roll Iustice As to the first Exception it is not a material one as I conceive But give a note of your exceptions to the Councel of the other side and bring us Books Postea Frere and others against Mich. 24 Car. Banc. Reg. AN Action of Debt was brought for 1500 l. upon a deed of Charter-party Arrest of judgement in debt The Plaintif had a verdict The Defendant moved in arrest of judgement and offers for cause that the Declaration was insufficient for it appears not by it that the Defendant is indebted to the Plaintif and then there is no cause of Action for the Declaration only says that he is indebted as it appears but shews now how Roll Iustice said it is by indenture and well enough Dyer 2 3 Phil. and Mar. f. 148. Plowden 121. 122. Debt Covenant Buckleys case 143. Browning and Beestons case 21 E. 4. f. 29 he said either an action of debt or an action of Covenant lies here for it is upon a Charter-party Here is not indeed a perfect allegation yet it is well enough for it hath béen usually thus pleaded Speak to it again Wednesday next Dison against Bartue Mich. 24 Car. Banc. Reg. DIson brought an action of Assault and Battery and taking of his goods Arrest of Iudgement in Assault and Battery against Bartue and had a Verdict the Defendant moved â—â— arrest of Iudgement and shewed for cause that the Declaration was â—â—â— good for it is with a quod cum c. which in an action of trespass vi et â—â—mis is not good for it is not a direct affirmative that the Defendant did the Trespass but it is only an implication that he did it but as it is it might have been good if the action had been an action of Trespasse upon the case The Iudgement was stayed till the Plaintif should move Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to stand to an Award Demurrer upon an Award pleaded The Defendant pleaded nullum arbitrium The Plaintiff replies and sets forth the Award and assigns a breach The Defendant demurs The Plaintiff after demurrer moves the Court that he might discontinue his Action But the Court said that after a demurrer upon an Arbitration it is not usual to discontinue the Action Discontinuance But let nil capiat per billam be entred if cause be not shewed to the contrary Mich. 24 Car. Banc. Reg. AN Action of Debt was brought by Baron and Feme upon an Obligation made to the Feme dum sola fuit Arrest of Iudgement by Baron and Feme and the Declaration is ad damnum ipsorum The Plaintiffs had a verdict The Defendant moves in arrest of Iudgement and for cause shews that the Declaration should not be ad damnum ipsorum Declaration but only ad damnum of the Husband only But the Court held that the Declaration was well enough and said it is the usual way of declaring in such Actions and the mony due upon the Obligation not being paid to the Feme whilest she was sole it was dammage to her and now being Covert it is a dammage to the Baron also and so it is ad damnum ipsorum 16 E. 4. Therefore let the Plaintiff take his Judgement Quatermans Case Mich. 24 Car. Banc. Reg. IN the Case of one Quaterman Antient use of practâ—c altered Roll Iustice said that out of indulgence to the Bayl it hath been the use of later times that if the Bayl do bring in the principal before the retorn of the second Scire facias which was taken out against the Bayl Discharge thereupon to discharge the Bayl but antiently it was not so but it was then counted too late to bring him in Hill and Harris Micst 24 Car. Banc. Reg. AN Action of Debt was brought against divers Executors Arrest of judgement in an action of Debt against Executors The Defendants plead fully administred and upon this an Issue was joyned and a verdict found for the Plaintiff The Defendants moved in arrest of Iudgement that there is contrariety between the issue joyned and the verdict found for the Action is entire against all the Executors and they had all pleaded fully administred Verdict and upon this the issue was ioyned and the veredict finds that some of the Executors had fully administred and that others of them had Goods in their hands whereas the verdict should have been that they had not fully administred The Iudgement was stayed till the Plaintiff should move Mich. 24 Car. Banc. Reg. VPon a rule of Court to shew cause why restitution should not be granted upon an Endictment of forcible entry Cause why no restitution upon an endictment of forcible entry exception was taken to the Endictment that it did not say that the party entred illicite manu forti as the words of the Statute direct and it was said that in a forcible entry there ought to be an entry expulsion and deteyner Roll Iustice said that there ought to be manu forti in the Endictment according to the Statute to distinguish this kind of Entry from an ordinary Trespass by entring into anothers Land which is not so violent as a forceable entry is supposed to be But let us see the Copy of the Endictment Gibbs against Dunn Mich. 24 Car. Banc. Reg. GIbbs brought an Action upon the Case against Dunn Arrest of judgement in an action upon the Case for words for these several words spoken of him by the Defendants Wife at several times viz. thou art a thief for stealing my corn out of my Barn and at another time for saying thou art a thief The Plaintiff hath a verdict The Defendant moved in arrest of Iudgement that entire dammages were given for both the words whereas the first words were not actionable Dammages entire Intendment for the
although the thing demanded be entire for he may as well release after the writ brought as before and there was no question but he might have released part before and he may release where there is an ill demand as well as where a demand is good Jerman Iustice held that Iudgement ought not to be given for he said that the reasons of the cases cited are not like to the reason of this case for here the verdict is not given for the same sum which is demanded and it doth appear that here is an unjust demand and it is his own fault and if the Defendant had demurred upon the Declaration it would have been adjudged no good Declaration But Nicholas and Ask Iustices agreed with Roll chief Iustice and so judgement was given for the Plaintif except better matter should be shewn on Saturday next Avery against Kirton Mich. 1649. Banc. sup Mich. 23. Car. rot 239. KIrton brought an Action of trespass against Avery Error upon a judgement in trespass and declared upon an original for imprisoning him till he entred into a bond of 600 l. upon Not guilty pleaded the Plaintif had a verdict and a judgement The Defendant brought a writ of Error and upon the Certiorari to remove the Record the Record was certified and in nullo erratum pleaded but the original in the Record certified was that the Defendant kept the Plaintif in prison til he entred into 2. bonds of 300 l. a piece whereas the right original was till be entred into one bond of 600 l. whereupon the party brought a new writ of Error and by that had the true original certified The Councel for the Defendant in the writ of Error said That original after original may as well be certified before in nullo est erratum pleaded Certificate as afterward but here the parties are at issue and the first original is certified and issue joyned upon that and there cannot be a new original certified and the original here doth not agree with the other parts of the Record and so cannot support it and our original certified stands with the Record and here is no Certiorari to warrant the original here certified and it is a material variance 3 Iac. Banc. Reg. Cummins case 9 H. 6. f. 38. Pasch 1649. Kedgwins case Yard on the other side answered that now the original is certified and is before you in this Court and you ought to judge as it is and not as it ought to be and it is agreeing with the former process And both the originals were before the Declaration and the Court shall take the right original and the other shall be intended for another cause Roll chief Iustice said The Certiorari is general and not inter partes praedict but the certificate is inter partes praedict And the Court may take the right original that is certified and the Iudges are not bound by the plea in nullo est erratum that is pleaded but may grant a new original writ of Error but the party cannot require it for he is concluded by his own plea Original Certiorari and if he discontinue his original he may have a new but not if he plead and the Certiorari is good and well certified and therefore judgement ought to be affirmed Ierman Nicholas and Ask to the same effect and so judgement was affirmed except better matter should be shewed Saturday next Ratcliff and Dudeny Mich. 1649. Banc. sup Entred Hill 23 Car. rot 369. VPon a special verdict A question upon the case falling out upon a special verdict the case was this A lease of a house and lands was made to I S. for 99 years the remainder to I D. for 99 years the remainder to A. B. for 99 years provided that if the lessees doe not inhabit in the house let during the whole term that then the lease shall be void The question here was How long the lessees were bound to inhabit in the house whether for the first 99 years or for that term also during all the years in remainder and which of the lessees were to Inhabit Windham held that the two first lessees only ought to inhabit during the first 99 years and no longer But Roll chief Iustice held that those in the remainder were not bound to inhabit before the remainder falls to them but reddendendo singula singulis they ought to inhabit successively one after another And he took an exception to the verdict That the lease being to begin after the death of one Robert Dudeny it did not find that Robert was dead and so it appears not that the lease is yet begun and so there can be no question stirred as yet Venire and thereupon the case was not argued but a Venire facias de novo was to issue because the special verdict was imperfect Cane against Golding Mich. 1649. Banc. sup THis case Opinion of the Judges upon an arrest of Iudgement in an Action of the case formerly spoken to and argued being an Action of the case for slandering the Plaintifs title was now spoken to by the Iudges And first by Roll chief Iustice who held that the Action did not lye although it be alleged that the words were spoken salso et malitiose for the Plaintif ought to shew a special Cause But that the verdict may supply But the Plaintif ought also to have shewed a special damage which he hath not don and this the verdict cannot supply The Declaration here is too general upon which no good issue can be joyned and he ought to have alleged that there was a communication had before the words spoken touching the sale of the lands whereof the title was slandered and that by speaking of them Case the sale was hindred and he cited 13 Iac Tuer and Bailyes case B. R. 21 Iac. Doctor Edwards and Balls case and 4 Car. Roe and Harwoods case a Iudgement in it in Windsor Court and reversed here and 12 Jac. Sell and Paryes case B. R. Ierman Iustice to the same effect and he said that there ought to be damnum et injuria alleged to maintain the Action for one without the other is not enough and here doth not appear any damage because there appears no communication of selling of the land Nicholas and Ask Iustices of the same opinion So the rule was Nil capiat per billam except better cause shewn Roll Iustice said that there is digitus Dei in the case for there was a strange verdict found Mich. 1649. Banc. sup THe Court was moved for a Supersedeas for the Earl Rivers For a Supersedeas for a Peer of the Realm denyed Privilege Notice who was Arrested by a bill of Middlesex and is in custody of the Marshall of this Court because he is Peer of the Realm and ought not to be arrested The Court answered You must plead your privilege if it be so for we cannot take notice of it upon a motion
himself and 2ly for a Contempt to the Court and because he would not find ball and it appears that the warrant for his commitment is not good for he is not committed for matter arising upon the Sea and so they have no Iurisdiction But the Court bid them proceed upon their prohibition Bail for they would not release the prisoner But if you will you may move it again Friday next Gilbert against Marden Mich. 1649. Banc. sup Trin. 1649. rot 942. A Writ of Error was brought to remove a judgement given in the Common pleas in an Action upon the case Vpon opening the record Error upon a judgement in the Common Pleas. Twisden took exception that the record was not removed for the Iudgement in the Common pleas was given Coram Petro Phesant and the writ of Error was to rectifie a record quod coram vobis reside The Court abated the writ of Error for this exception Abatement Smith against Andrews Mich. 1649. Banc. sup ANdrews an Attorney brought an Action upon the case against Smith Arrest of Judgement in an action on the case for speaking of these words against him He meaning the Plaintif stirrs up men to sutes and promiseth that if he recover not for them he will take no fees and yet in a sute which he so undertook for me wherein I was overthrown he took Charges of me Vpon not guilty pleaded there was a verdict and a judgement for the Plaintif The Defendant brought a writ of Error and for cause it was shewed by Maynard that there are entire damages given for divers words spoken at one time whereof some are Actionable and others not which ought not to be and 2ly The words in themselves are not actionable for an Attorney may stir up men to sutes if their sutes be lawful which Roll chief Iustice denyed 17 Car. Gibson and Baxter Maintenance And he said that an Attorney may prosecute his Clyents cause without seed and yet it is not maintenance Trin. 16 Car. Hill and Sands his Case Hales on the other side held that the words are Actionable for the words shall be taken in the worst sense and he also shews how he had stirred up sutes in an unlawful manner viz. by making of bargains with men at Markets Roll chief Iustice said that such words shall be taken mitiori sensu and this is a special maintenance for it is in the case of an Attorney and therefore lawfull but here are other words spoken to shew that he stirred up sutes unlawfully and the stirring up of sutes and making bargains to follow them is in it self unlawfull and great inconveniences doe grow by such manner of practising and all the words ought to be taken together and not dividedly for so you may make any words not actionable Ierman Iustice held the words were actionable because they are a great scandal and trenching to destroy the Plaintifs livelihood practice And said that Attorneys ought not to go to Markets to get practice the words spoken are to shew he is a stirrer up of sutes and to shew that he was a false dealer and the words shall be taken in the Common acception and not mitiori sensu Nicholas as Ierman and that the words taken together are actionable Ask Iustice to the same effect Whereupon Iudgement was affirmed except better matter should be shewn Monday next Johns against Leviston Mich. 1649. Banc. sup â—Ohns brought an Action of debt against Leviston upon an Assumpsit that the Defendant would enter into a judgement unto the Plaintif for so much monies as Sir Iohn Hall did owe unto the Plaintif if the Plaintif would take Common bail of him the Defendant Arrest of Judgement in an action upon an Assumpsit if Hall should dse before such a day and for not performing this promise the Action was brought upon non Assumpsit pleaded there was an issue joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement and shewed that it doth not appear that there was any notice given by the Plaintif to the Defendant how much mony was due to the Plaintif from Sir Iohn Hall as there ought to be Roll chief Iustice answered You did undertake to know at the time of the Assumpsit how much mony he did owe and notice is not necessary Notice and if it were he might have gone to Sir Iohn Hall to tell him and so it shall not only be intended to be in the knowledge of the Defendant himself but that he might have also knowledge of it by others Ierman Iustice doubted but Nicholas and Ask Iudges were of Rolls opinion and the Plaintif ordered to take his Iudgement if better matter were not shewen Custodes Libertat c. against the Inhabitants of Outwell Mich. 1649. Banc. sup THis Case was again moved Exceptions uâ—on an order of Commissioners of Sewers and answers to them wherein upon a presentment made to Commissioners of Sewers an order was made by them to reimburse the Dike-réeves for mony expended in repairing a Sea wall by laying a tax upon divers Vills amongst which Owtwell was one divers exceptions had been formerly taken to the presentment and order At this time it was 1. objected that the Commissioners cannot alter the usual custom for making the tax as they have here done and therefore their Order is not good It was answered that there is no custom here presented but if there be yet the tax cannot be laid generally upon the Vill but distributively for every one of the inhabitants have not an equal share of the land nor are all the lands of equal goodness And there is no custom for the Vill of Owtwell to approtion the tax so that they have no authority to doe it Windham on the same side said that there is no prescription or custom here found and so the tax ought to be ruled by the Common Law and other Towns ought thereby to be Contributory which receive benefit by the making of the bank and the Commissioners of Sewers have not here pursued the direction of the Statute of Sewers as they ought to doe And here the presentments upon which this order for the tax was grounded were made by three Iuries of several Hundreds and the breach to be repaired doth not appear to be within any of the Hundreds whence the Iuries come as the Statute doth direct neither is it shewed how the inhabitants are chargeable whether by tenure or custom or how else Holhead on the same side said It is not said how the lands are lyable to the tax 1. It is not shewed in what part of the Poe-Dike the breach hapned Maynard on the other side said that the Commission of enquiry finds by what default the breach happens but they cannot tell how many acres every one holds to charge them several and it may be intended that they hold joyntly and it shall be intended that the lands are lyable to
the bringing of the writ of Error is delay enough and therefore if you have not assigned the Errors according the rules of the Court they shall not be now accepted Dewick against Bamber Hill 1649. Banc. sup THe Court was moved upon an Affidavit that the Defendant might plead and goe to tryal That an Attorney might be forced to plead Plea Appearance because his Attorney hath appeared and now he saith he is not an Attorney of this Court and doth refuse to plead Roll chief Iustice answered If he hath appeared and yet will not plead enter your judgement against this Clyent and though he have not appeared if he did promise to appear we will force him to doe it VVhitchurch against Pagot Hill 1649. Banc. sup THe Court was moved in the behalf of Whitchurch a Clerk of this Court To be restored to a Clerks place in the Castes Brevium Office that he might be restored to his Office in the Office of the Custos brevium according to an Order of this Court otherwise that he may have liberty to bring his Action against the Custos brevium The Court answered that the Master of the Office is answerable for all his Clerks and hath power over them and they are not Officers but méer Servants and therefore there is no remedy to be had in Law against him Restitution but in Conscience he ought to restore him Therefore let him shew cause next Term why he should not be restored In Michaelmas Term 1654. After divers motions and hearing what was objected on both sides upon his submission in Court to Mr. Paget the Master of the Office he promised to restore him Mich 1649. Banc. sup THe Court was moved in Arrest of Iudgement that the Plaintif was 19 years old Arrest of Iudgement for pleading per Guardianum and sued per guardianum which ought not to be for after he is 17 years years old he ought to sue per Attornatum suum The Court answered this is no good exception for if he be within the age of 21 years he may sue per guardianum and he is admitted by the Court to doe so And therefore let the Plaintif take his Iudgement Bigford against Topsam Pasc 16â—â— Banc. sup Mich. 1649 rot 85. A Writ of Error was brought to reverse a Iudgement given in an Action of Debt upon an obligation with the condition for the payment of a certain sum of money after the return of the Ship Error to reverse a judgment in debt to the Port of Plymouth The Defendant pleaded a special plea to which the Plaintiff demurred upon this demurrer the Iudgement was given for the Plaintiff upon which Iudgement the writ of Error was brought Wadhaâ—â— Windham assigned for error 1. That there issued a pone out of the Couâ—â— of Plymouth returnable the 1 of March and the Defendant did not appear till the 8 of March and so there is a discontinuance Hales of Councell on the other side answered that the Plaintiff had accepted of a Declaration Discontinuance and so that fault is helped The Court answered the acceptance of the Declaration doth not help it But the Record is not so therefore passes ouster A 2d Exception was that there is no bail taken Bail for it is erroneous bail and so shall be accompted no bail The Court answered this is not material here A 3d. Exception was that it is said that the plea was held before the then Maior and doth not shew that he was elected The Court answered it is well enough as it is though it might have been otherwise It was adjourned Custodes Libertat c. against Mountain and Lydal Pasc 1649. Banc. sup AN information was exhibited by the Attorney generall against the Defendants for engrossing divers Acres of Corn. Demurrer to a plea to an information for engrossing They pleaded that they had been heretofore prosecuted in the Court of the Exchequer and were acquitted thereof To this plea the Attorney general demurred and these reasons were shewed why the plea was not good 1. It is not pleaded that they were acquitted by judgement or upon a verdict or upon a former information exhibited against them 2ly It doth not appear that the Exchequer had jurisdiction of the cause 3ly There could be no information duly exhibited for it is said to be the 10. of September which is out of the Term and so the Court did not sit 2ly there is no issue joyned for the Plaintiff saith ponit se c whereas it being by way of recital ought to have been posuit se and the other saith petiit quod inquiratur per patriam 3ly There is no verdict in the Case for the issue is non culp contra Statutum and the verdict is non est culp juxta Statutum 4ly There is no judgment for it is eat ad praesens and it ought to be iret ad tunc 5ly There is no averment that the first information was for the same offence 6ly The information ought to be in the same County by the Statute of 21 Jac. and the Barons of the Exchequer are not Iudges by the Statute and so prayes Iudgement against the Defendant Hales of Councell with the Defendant answered to the third exception That in the Exchequer there is a Court the 10. of September to receive informations although it be out of the Term time And he said there is a good issue joyned and a good verdict for the words juxta et contra in this place have one and the same sence And the Iudgement is also good And the information was well brought in the Exchequer notwithstanding the Statute of 21 Jac. for the offence was in Midlesex where the Exchequer is Also if the Iudgement be not good by reason of Error yet it shall be accompted good till it be avoided by plea And although it be erroneous yet here is a discontinuance for Mich. 24 Car. St. Iohn was chief Iustice of the Commons Pleas and not solliciter as the plea supposeth The Court answered that they cannot take notice of that And here is no issue joyned nor any continuance to part of the plea pleaded by the Defendant and the demurrer goes not to the plea upon which the party puts himself upon the Country and there is no demurrer to that The demurrer is referred to the last plea and not to all and so there is a discontinuance to part and the first Iudgement is not void untill it be avoided by plea and here the fact was done in the County where the Exchequer is Void and â—oideable Discontinuance Câ—râ—â—orari and so the Barons are Iudges of it by the Statute and a fine that is voideable is not void untill it be made so by pleading And if you cannot answer the discontinuance all the rest is to no purpose therefore take time to answer that It was said also by the Court that the Defendant may remove an information exhibited against
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
Plaintiff it was moved in arrest of Iudgement that the words are not actionable 1. Because the words spoken are of spiritual conusance and punishable in the Ecclesiastical Court and not at the Common Law 2ly The party may keep a Bawdy House and not know it to be such and then he is not punishable for it and so cannot be prejudiced by the speaking of the words 3ly Case There is no Statute against keeping of a Bawdy house as the Declaration lays it but for keeping of a Common Bawdy house But Ierman Nicholas and Ask Iustices Roll chief Iustice being absent held that the words are actionable for the keeping of a Bawdy house is an offence punishable at the Common Law as being a misdemeanor and breach of the peace and therefore ordered judgement to be entred except cause should be shewn to the contrary Saturday next Green against How Pasch 652. Banc. sup Entred Hill 1651. rot 1295. Q. PAnel moved for How the Defendant to arrest judgement after a verdict given against him for Green the Plaintif in an action upon the Case brought for speaking these words of her viz. Arrest of Iudgement in aâ— Acti â—n upon the Case for words You are a Whore and a Iade and a strumpetly Whore and I will prove you a Common Whore his Exception was that the words are not in themselves actionable for they are but words of choler and heat and the Plaintif is not brought within danger of the late Statute made against whoredom by the speaking of them and he cited for authority Freeman and Childers case Trin. 1651. rot 45. where these words viz. You are a Whore I will prove you an arrant Whore were adjudged not actionable The rule was to stay judgement till the Plaintif should move Barcock against Tompson Pasch 1652. Banc. sup Mich. 1650. rot 444. IN an Audita querela the Case was this Where an Audita querela lies for the Bail upon an erronious judgement against the principal An Action of Debt was brought against the Principal and a judgement upon a nihil dicit obtained but no capias ad satisfaciendum issued forth against him Afterwards 2 scire facias were taken out against the Bail and 2 nâ—chils thereupon returned and thereupon judgement was given against the Bail who thereupon brings his Audita querela The Question was whether the Audita querela did lie or not in regard that the scire facias issued forth against the Bail before any capias ad satisfaciendum was taken forth upon the judgement upon the nihil dicit against the Principal Green of Councel with the Defendant held that the Audita querela did not lie because that the party hath other remedy to relieve himself and therefore the Audita querela lies not for that is given only where the other party hath no other remedy 21 E. 3. f. 12. Brook Audita quer 18. And besides here are two nichils returned against the party which do amount to a scire feci and so the party is warned and therefore he comes now too late to have his Audita querela for here is as much as a judgement by default after an appearance and here is no release and there is a judgement executed and in force and not reversed by the Principal Green and Le Grices case Pasch 39. Sir Francis Mores Reports Wild for the Plaintif held that the Audita querela did well lie because that no scire facias ought to have issued against the Bail before a capias ad satisfaciendum taken forth against the Principal And an Audita querela is in the nature of a sute in Chancery and the party comes soon enough here to be relieved though the scire facias be returned for the return thereof shall not bar him from his Audita querela although it be now too late for him to reverse the judgement by a writ of Error and the books 21 E. 3.13 and Kelw. 23 24. are in the very point And the party by the return of the 2 nichils is not in Court And in Mores Reports in Hobs and Todcasters case 38 Eliz. it is adjudged that an Audita querela doth lie Roll chief Iustice when one is Bail in the Common Pleas he is bound to bring in the body of the Principal Bail or to pay the debt And Pomeroys case is that until a Capias be returned against the Principal the Bail cannot forfeit his Recognisance Recognisance Forfeiture for the non-appearance of the Principal for the filing of the Capias is not sufficient but it must be returned And this was the antient course there and the Law so held to be but by usage of later times and out of indulgence shewed to the Bail it hath been held sufficient for the Bail to bring in the principal after the retorn of the Capias and now at this day out of greater indulgence afforded unto the Bail it is well enough if the Bail bring in the Principal at any time before the return of the second scire facias but after it is returned then it is too late for him to bring him in Error and that is the reason that in such Case a writ of Error lies not for the Bail to reverse the judgement against the Principal If a scire facias be brought against the Bail and he pleads that the Principal dyed before the return of the Capias against him it is adjudged to be a good plea for the Bail to discharge himself Plea but to plead he dyed after the return is not good And it is a good plea for the Bail in a scire facias brought against him to say that no capias was returned against the Principal And here is a good discharge in Law against the Bail But the question here is whether the return of the two Nichils be not a Bar to him now and that he hath not thereby lost his advantage to bring his Audita querela Audita querela because by the return thereof the party is supposed to have notice and therefore a writ of Error clearly lies not to reverse this judgement though it be upon a nihil dicit And as to that in as much as the party hath no other remedy to help himself and it is apparent that he is damnified by an undue judgment it is reason he should bring his Audita querela Barns and Corbets case The Bail cannot say the Principal hath paid the money if he have not an acquittance or matter of Record to prove it and in Sir John Mounsons case upon two nichils returned adjudged that the party might have his Audita querela and therefore the Plaintif ought to have his Iudgement Ierman Iustice dissented But Nicholas Iustice absente Ask agreed with Roll and said that for want of the return of the Capias the judgement was erronious and the 2 scire facias might be returned behind the parties back therefore it could not be said to be all
Corpus came into the Court and produced an Order of the Counsel of State that he should not bring Iohn Lilborn to the Bar upon a Habeas Corpus directed to him out of this Court. Norbury of Counsel with the Prisoner prayed for an Alias habeas Corpus to be directed to him Roll chief Iustice Take it for no matter of Record appears before us to hinder it and let it be returned Saturday next which was three days after Norton and Jason Mich. 1653. Banc. sup Trin. 1651. rot 935. IN an Action upon the Case for entring into the Plaintifs house Arrest of Judgement in an action on the Case and making an assault upon his Daughter and getting a Bastard Child upon her the Iury found a special verdict upon which the Case was this Norton sojourned in the house of Jason and during his sojourning there he got his Daughter with Child Four years after Iâ—son brought an action upon the Case against Norton for assaulting his Daughter and getting her with Child per quod servitium amisit The question here was whether because no Action was brought by the Daughter for the wrong done to her within four years and thereby she was barred by the Statute of limitations of Aâ—tions to bring her Action Iason the Father might now bring his Action upon the Case for the damage done to him by the loss of his Daughters service or should be also barred by the Statute Powis argued that he was not barred though the Daughter was because in many cases the Law gives two Actions for one thing and cited 19 H. 6.45 46. a. and Hill 1649. Norburies case adjudged in this Court and said that though the Trespas and the Assault was done to the Daughter yet here is a per quod servitium amisit declared of which doth belong to Iason the Father Roll chief Iustice This Action is an Action brought for the damage done to the Master and though the servant will release the battery yet the Master may have an A Aion for the damage caused to him by the Battery and although the Daughter cannot have an Action her Father may although not for entring into his house because it was with his leave nor for assaulting his Daughter and getting her with child because this is a wrong particularly done to her yet for the loss of her service caused by this he may have an Action but it is a pretty case and fit to be argued therefore bring us books and we will advise upon it At another day the case was again spoken unto by Baldwin of the Inner Temple on the Defendants part and he made the question to be whether this be an Action of Trespass vi et armis or an Action upon the Case which is here brought and he argued that it is a Trespasse vi et armis and not an Action upon the Case which is here brought Case and cited Nat. Brev. 86. 17 Ed. 3. and 12 H. 4. and the 9 Rep. the Earl of Shrewsbury case and said that the matter here alleged is not Causa causans but Causa causata and he agreed that one may be lyable to divers Actions for one Trespass in divers respects but here all the matter is jumbled together and it cannot be an Action upon the Case for the judgement ought to be quod defendens capiatur which is the Iudgement in a Trespass vi et armis and not in a Trespass upon the Case Hob. Rep. Wheatly and Stones Case And although the Action conclude with a per quod servitium amisit yet it sounds more in Trespass than to be an Action upon the case and then he is barred by the Statute of limitations for not bringing it within 4 years and here are â—ntire damages also given for all which ought not to be for the Defendant was a sojourner in the Plaintifs house and had licence to enter into it by consequence is is not guilty of the vi et armis declared of Hob. Andrews and de la hope 22 Eliz. Dyer 369. 20 Iac. Rhetorick and Chapels Case and therefore no dammages ought to have been given for the domum fregit because he entred with License Roll chief Iustice It may be the entire dammages are given by the Iury for the trespasse of which they make doubt and refer to the judgement of the Court and not for the entring with License but if the entire special matter had been found and left to the Court it had been otherwise But if they had not made a doubt they might have found him culpable Dammages and so I doubt that it is not good to find the dammages entire because as to the Trespass for entring vi armis he is not guilty But for the other point the cause of action is per quod servitium amisit and for this he hath brought it within the time limited by the Statute for it is an Action upon the Case although the causa causans is the vi armis which is but inducement to the Action and the causa causats viz. the loss of the service is the ground of the Action Hales è contra said that the dammages shall be applyed to the other matter Roll chief Iustice this is the sole Question whether the dammages refer to all the Trespass or not and upon reading the Record he said that it referred to all Venire Tryal and so is not good The rule was to shew cause why a new Venire should not issue forth to try the matter de novo Mich. 1653. Banc. sup THe Court was moved to quash an order of Sessions made for the committing of one Wade and another Surveyours of the High-way To quash an order of Sessions untill they should pay the arrerages of mony collected by them upon the Statute of 2 3. Phil. Mar. C. 8. for amending of High-waies and it was prayed the Prisoners might be bayled These exceptions were taken by Twilden against the Order first to the Mittimus in that the parties were not convicted before the Iustices as they ought to have been 2ly The Mittimus is repugnant in it self for they are committed for not paying of illegal rates levied upon the Parishioners and if they be illegal they are not to be paid Next they are committed for not paying all the mony by them levied whereas they are to deduct 8 d. in the pound out of it for their pains in collecting of it and so they are committed for more than is due Roll chief Iustice The order is not good yet let them on the other side take time to maintain it if they can because it is an order for repairing of the High-way Order of Sessions which is for the good of the Common wealth Henshoe Mich. 1653. Banc. sup A Writ of Error was brought to reverse a judgement in an Ejectione firmae it was moved for the Defendant in the Writ of Error Error to reverse a judgement in
he ought also to be heard to all the other crimes objected against him Therefore let him be restored nisi c. to morrow Iudgement nisi Howard and Howard Trin. 1655. Banc. sup MY Lord Howard being taken by a Latitat out of this Court appeared upon the day of the retorn of the Writ in Court Peerage pleaded and pleaded his privilege of Péerage and demands in judgement of the Writ and thereupon to be discharged Powis of Councel against him moved that he might put in special bayl Bayl. Demurrer Glyn chief Iustice You ought to demur to his Plea for he is now in Custodia and therefore he need not put in bayl Nota. The Protector and Norrice Trin. 1655. Banc. sup NOrrice being committed to prison for speaking words against the Parliament in the year 1650. was thereupon endicted To discharge a Prisoner upon the Act of Oblivion and was convicted and fined 100 l. and ordered to lye in prison untill he could find Sureties for his good behaviour afterwards he was brought into Court by vertue of a Habeas Corpus and his Councel moved on his behalf that he might be discharged because he was pardoned by the Act of Oblivion It was urged against this for the Protector that he may be a person excepted out of the Act Surmise and therefore ought not upon this surmise to be delivered Glyn chief Iustice It doth not appear to us that he is not excepted and therefore we cannot deliver him Thereupon it was moved for the Prisoner for a Certiorari to remove the Record hither Certiorari Entry whereby he stands convicted that he might enter the suggestion upon it that he is pardoned by the Act. Glyn chief Iustice Taxe it Webberly and Sir John Lenthall Trin. 1655. Banc. sup THe Court was moved for Webberly against Sir Iohn Lenthall Motion against Sir Iohn Lenthall for detaining a Prisoner discharged Action mony False imprisonment Endictment that whereas he being a Prisoner in the Vpper Bench prison for Debt and having agreed with his Creditors was discharged by them yet Sir Iohn Lenthall did keep him Prisoner till he should pay him Action mony Glyn chief Iustice You have two remedies against Sir Iohn Lenthall for this for either you may bring your Action of false imprisonment against him or you may endict him for extortion Yet let Sir Iohn shew cause why he should not discharge him paying his fees Strowd and Keckwith Trin. 1655. Banc. sup Mich. 1653. rot 119. STrowd brought an Audita querela against Keckwith Audita querela The Case was this Strowd acknowledged a Iudgement 17 Car. for 2000 l. upon which Iudgement an Elegit was taken forth against Strowds lands in the County of B. and lands thereupon were found and extended and delivered to the Counsee and the Elegit filed and the lands enjoyed accordingly for six years then the Counsee dies and makes his wife Executrix who takes out a Scire facias upon the Iudgment for 2000 l. directed the Sherif of the County of C. being another County and upon two Nichils retorned hath judgment and execution against Strowd for the same Debt who thereupon brings his Audita querela Wadham Windham held that the Audita querela did lye and cited 15 H. 7.7 L. Q. f. 40. and said this was an illegal proceeding against Strowd because that after an Elegit executed no other execution lies but where there bath been no execution of lands in the same County or in another upon the first Elegit but here is land found Execution and the Elegit filed and the lands enjoyed Elegit to divers Counties No Elegit after an Elegit Iudgement 18 E. 12. Fitzh tit Execution 240. Dyer 1â—2 an Elegit may be prayed to divers Counties Glyn chief Iustice The Case is adjudged in Hobardâ— Reports that one cannot have an Elegit after a former Elegit if lands be thereby found and the Elegit filed Therefore shew cause why judgement shall not be given for the Plaintif Price and Carr. Hill 1654. Banc. sup PRice brought an Action upon the Case against Carr for speaking these words of her A pox upon you for a Welsh whore Arrest of judgement in an Action on the Case for words for thou wentest into the Country and emptiedst thy Caâ—k of a Bastard After a verdict for the Plaintif it was moved in arrest of Iudgement that the former words videlicet the saying the was a VVelsh Whore are not actionable because no Action lyes at the Common-law for calling a woman Whore and the last words are uncertain words and less actionable The judgement was then stayed till the Plaintif should move Whereupon at another day the Plaintif moved for judgement and a Case in 1â— Iac. in this Court was cited and 41 Eliz. VVheeler and Aâ—â—gâ—ls case and it was urged that the words shall be interpreted according to common intention and understanding of the hearers and shall be adjudged very scandalous Wild on the other side said they are frivolous words and not to be regarded for they do not say positively she is a Whore nor that she had a Bastard but the words are of a very uncertain meaning for it appears not when the words were spoken or when she went into the Country nor is there any averment what is meant by the words Glyn chief Iustice Words actionable Now since the Act the calling of a woman Whore and saying the had a Bastard will bear an Action and here are words certain enough to fix a particular Scandal upon the party by application of the words and they are made more than general words or words of heat and passion for there is a general application of them and a sufficient averment and for the time of speaking them we will not presume they were spoken four years since which was before the late Statute made against Adultery Iudgement Therefore let the Plaintif have her Iudgement Davis and Matthews Pasch 1655. Banc. sup THe Case was this Bond put in sure in the Prerogative Court There being a controverste in the Prerogative Court between the Widow of one that died intestate and one of the intestates next kindred who should have Letters of Administration of the goods and Chattels of the Intestatè It was at length agreed betwixt the parties that the widow should have Letters of administration and that thereupon she should enter into Bond in the prerogative Office to make an equal distribution of the goods and chattels of the intestate amongst his kindred whereupon Letters of Administration were committed unto her and she afterwards entred into bond accordingly and for not performing the condition of the bond in making an equal distribution of the estate the bond was put in sute in the prerogative Court Prohibition upon which a prohibition was prayed and a rule thereupon made for the Defendant to shew cause why it should not be granted and af
Action cannot lye for a false retorn 2ly He sayes that the old Sherifs delivered the writ thus endorsed to the new but doth not say that they did deliver it to be retorned viz. by Indenture Indenture as the use is 3ly It doth not appear whether there were any retorn of the writ made either by the old Sherifs or the new 4ly The Action is brought in a wrong County Venue for it is not brought in the County where the endorsement and delivery over of the writ was Latch of councel on the other side answered that the Action was brought for delivering the goods back again to the Defendant after they had taken them by vertue of a Fieri facias and not for the endorsement made upon the writ The rule was to reverse the judgement except cause shewed to the contrary At another day the Court was moved to affirm the judgement and the councel on the other side insisted upon the former exceptions to reverse the judgement Glyn chief Iustice caused the Record to be read and upon Oyer thereof said I conceive it is well and according to the course in that kind for the old Sherifs to make the retorn and to deliver the writ over by Indenture to the new Sherifs and here is also a verdict in the Case and a retorn is not properly a retorn untill it be filed here yet it is the retorn of the Sherif in the County where he is Sherif Shew cause upon notice why the judgement ought not to be reversed Antea Q. Denton Mich. 1655. Banc. sup AN order of the publique Sessions made against one Denton for the kéeping of a Bastard child was removed into this Court by a Certiorari To quash a retorn of an order of Sessions and the party also who was committed to Ailsbury gaol for disobeying the order was brought into Court upon a Habeas Corpus granted unto him and upon the reading of the retorn of the Habeas Corpus this exception was taken to the retorn that it appears by the retorn that the order made for Denton to kéep the Bastard-child was made by the Iustices at the Quarter Sessions and that for not obeying this order he was committed to the Gaol by two Iustices at a private Sessions of the peace whereas the Iustices of the Quarter Sessions had no authority by the Statute to make such an order for it ought to have béen made by the next two Iustices of peace to the place where the Bastard was born And to this Glyn chief Iustice agréed but would not release the Prisoner till he was bound over with good bayl to the next Quarter Sessions for the County of Buckingham to appear there and to answer the fact Att Lee and the Lady Baltinglas Mich. 1655. Banc. sup THe Court was moved on the Defendants behalf To discharge a feme covert upon common bayl that there was an Action upon the Case brought against Baron and Feme and the Feme had appeared but the Baron would not and that the Plaintifs Attorney stood to have special bayl for her which she could not procure and therefore it was prayed that she might be delivered upon common bayl But Glyn chief Iustice answered Denied if there be cause to have special bayl the wife must lye in Prison untill the Husband appear and put in bayl for her for she cannot put in bayl for herself being Covert Baron Elmes and Martyn Mich. 1655. Banc. sup THe Court was moved For time to demur to a plea. for the Plaintif that in respect that the Defendant had put in a special plea and pleaded a very long Award which made the plea very long that therefore he might have time granted unto him by the Court to demur to this plea. But Glyn chief Iustice answered you need not have time to demur to the Plea for you may do that presently Denied Rejoynder but if you desire time to rejoyn in respect of the length of the Ples you shall have it Plummer and Sir Iohn Lenthall Mich. 1655. Banc. sup THe Plaintif shewed to the Court by his Councel that he had brought an Action of escape against Sir Iohn Lenthall the Mareschall of the Marshalsea of this Court To put Sir Iohn Lenthall out of his Office and had thereupon a judgement and an execution on against him but that Sir Iohn though as being Marshall he ought as an Officer of this Court daily to attend the Court did yet nevertheless absent himself so that the Plaintif could not take him upon the execution and that if he were present he doubted whether he might take him for fear it would be an escape of the Prisoners committed to him and therefore prayed that Sir John Lenthall might be put out of his place of Marescall that so he might take him in execution Glyn chief Iustice This is very mischievous Cause let Sir Iohn shew cause Friday next why he should not pay the monies Le Gross and Hall Mich. 1655. Banc. sup IN a writ of Error brought in this Court to reverse a judgement given in an Action of debt The Defendants Councel in the writ of Error moved To reverse a judgement for expedition that the Court would reverse the judgement because they conceived it was erroneons for their own expedition that they might bring a new Action Glyn chief Iustice You have not yet confessed the error upon the Record neither have you pleaded in nullo est erratum as you ought to do Denied for moving o◠soon and therefore you move too soon to have the Iudgement reversed Hamond and Thornhill Mich. 1655. Banc. sup IN the Case of one Hamond and Thornhill in a trespass and ejectment tryed at the Bar Whether Gavelkind-lands held by chivalry he deviseable upon the evidence given it was affirmed by Sergeant Twisden that Gavelkind-lands though they be held by Knight-service tenure might be all devised by Will by the custom of Kent Q. for other Councel doubted of it Arnold and Floyd Mich. 1655. Banc. sup THis Case formerly spoken unto and after a Nil capiat per billam nisi c. ordere◠to be entred against the Plaintif was again spoken unto and the Case put and the exception formerly taken that the Plaintif had declared of a general receiving of mony of such and such Customers and had not accompted for them whereas the Articles for breach of which the Action is brought do express that he should accompt for such monies as he should receive of the Customers which were in his charge only But Green answered that though it was not so expressed yet it should be intended that he had not accompted for all such monies as he had received of the Customers in his charge and as to another exception which was also formerly taken viz. that the Plaintif had not shewed what monies he had received for which the Defendant had not accompted and so he knew not what answer to