so and it shall be presumed it is rightly named so 2ly It is so found to be by the Iury and to prove that it is a free Chappell it is not presentative and 2ly It appears not to be within the Iurisdiction of the Ordinary 3ly The Act of 1 Ed. 6. is an Act which is general and gives all free Chappels and extends as well to Chappels which are only reputative free Chapbels as well as to them which are so indeed even as it is of a Chauntery College and an impropriation as the Books are and it is a free Chappell nevertheless it be presentative and with the cure of Souls for a free Chappel may now be with the cure of Souls although by the old Canon law it could not as was held in Childs case 1 Iac. The Chappel within the Tower is a free Chappell donative and yet it is presentative and hath cure of Souls so saith Lynwood of the free Chappel of St. Martins It is also the intent of the Statute that it should be so for a College and a Chauntery with cure are within the Statute as may appear by the Exceptions of the Statute of the Free Chappel with cure of Souls in the Isle of Eely called the Chappel of the Sea and the being presentative with cure hinders not but that it may be within the Statute for the presentation might arise at the first by special composition as it is 13 E. 4. f. 4. and Register f. 307. and it was instanced in the free Chappel of Hastings in Sussex and it may be a Chappel donative by prescription and yet presentative Adjornatur ad proximum terminum to be argued again Vid. postea Barker and Martyn Trin. 23 Car. Banc. Reg. THe case between Barker and Martyn was again moved Arest of judgment in Trepass which was briefly this An action of Trespass was brought by Barker against Martin wherein he declares that the Defendant had broken his House and had taken away quinque instrumenta ferrea Anglice fetters In arrest of Iudgement exception was taken to the Declaration that Instrumenta serrea Anglice fetters was not a good expression in Latin as it ought to be of Fetters because there was a proper Latin word for Fetters namely Compes so that it ought to have been quinque Compedes or quinque paria Compedum and not as it is for the word Instrumentum is uncertain and may be used to signifie any thing else with an Anglice added to it as well as Fetters and as it is the pleading is not all in Latin as the Statute directs to avoid Barbarsm and the word Anglice when it is properly used in a Declaration is to help words of art which cannot be expressed without 〈◊〉 Anglice and is not to be used where there is a proper Latin word to signifie the thing as in this Case there is On the other side it was said that general words might be good in a Declaration and barbarous words sometimes and cited Hobarts Reports 267. and Ward and Smiths Case Trin. 4. Iac. rot 2305. Roll Iustice It is a hard thing to maintain this Declaration Declaration for if it should be admitted good it would bring in all Barbarism in pleadings Pleading and any senseless word might be used with an Anglice joyned with it and he said one was endicted for using quandam artem Anglice of a Draper and it was adjudged naught and in the case between Tailour and Taylour 9 Car. Trespass was brought pro Decem caponibus Anglice Capons avidbus domesticis Anglice powltry and adjudged not good Yet the rule of the Court was to argue it again Saturday next following Eeles and Lambert Trin. 23 Car. Banc. Reg. Pasc 22 Car. rot 1646. EEles brought an Action of Covenant against Lambert the Executor of Sir Molton Lambert An Action of Covenant against an Executor and declares that Sir Molton Lambert did in his life time by his indenture let certain lands unto him for years and covenanted thereby for himself his Executors Administrators and Assigns that the Lessee should not be put out of possession of the lands let by him during the said Term and that since the death of Sir Molton Lambert his Lessor he was put out of possession by such an one and upon this he brings his Action of Covenant against the Executor The Defendant pleads no Assets upon this an issue was joyned and a special Verdict was found To this effect That Sir Molton Lambert did let the lands mentioned in the Declaration to Eeles prout that there was such a Covenant in the Deed prout and that the Plaintiff was put out of possession of the lands prout They find likewise that Sir Molton Lambert made his Will and made the Defendant his Executor and died that Sir Molton Lambert by his will gave many legacies of goods and that the Defendant before the Plaintiff was put out of possession did pay all the Legacies in kind and that besides those Legacies he had not Assets to discharge the Covenant Vpon this Verdict the matter in Law was this whether the Executor ought to have forborn the payment of the Legacies and to have expected till the end of the Term let to the Plaintiff or till the Covenant had been broken and for doing otherwise should not be charged with the Covenant de bonis propriis or whether the Covenant not being broken in the life of the Testator nor before the Legacies paid he had not paid the Legacies as he ought and should not be freed from being charged with the Covenant de bonis propriis Vpon opening of the Case Rolle Iustice said that a decree in Chancery against an Executor Decree in Chancery shall not be satisfied before an Obligation made by the Testator and become due after his death Saturday following was set to here Councell again Jones and Stanley Trin. 23 Car. Banc. Reg. IOnes brought an Action of Debt upon an Obligation to perform Covenants of an Indenture against Stanley Arest of Judgment in an ACtion of Debt and hath a Verdict against him Stanley moves in Arrest of Iudgement and takes these exceptions 1. That the Goods valued in the Declaration are not within the condition of the Obligation 2. The goods are not certainly set forth what they are for the Declaration is of divers parcells of old stuff 3. Some of the things mentioned in the Declaration are not goods and so not to be valued for the Declaration is of partitions withi nt he house and of a shed which are part of the free hold and not goods upon these exceptions the Iudgement was arrested till the other should move it VVhite and Thomas Trin. 23 Car. Banc. Reg. Trin. 18 Car. rot 1400. WHite binds himself Error to reverse a Iudgment in Debt brought by an Heir his Heirs Executors and Administrators in an Obligation to Thomas for the payment of a certain summ of mony at a certain day
Lincoln Admission Iurisdiction Prohibition Proceedings that the cause of Action if any were arose in the body of the County of Lincoln and not within the jurisdiction of the City of Lincoln Hales on the other side said they had admitted the jurisdiction of the Court in that they had not pleaded to it But Roll Iustice said inferiour Courts are limitted in their jurisdictions and ought to be kept in order by prohibitions if they exceed and if they proceed in matters not within their jurisdiction their proceedings are void Adjourned to the next Term. Trin. 23 Car. Banc. Reg. THe Court was moved for a Prohibition to an inferior Court For a prohibition to an inferior Court Admission but on the contrary part it was said that they moved too late for they had admitted the jurisdiction of the Court by pleading and cited 9 H. 7.12 and Fitz. jurisdict 19. Bacon Iustice said it is here in a Court of Common Law and not in the spiritual Court or Admiralty and therefore a Prohibition may be here granted notwithstanding the pleading there Prohibition but had it been the spiritual Court or the Admiralty it had been otherwise But Rolle Iustice said it was all one in the spiritual Court or Admiralty as it is in this case if they exceed their jurisdiction Iurisdiction Yet it is mischeivous to grant a prohibition in this case for thereby many Iudgements will be stopped Therefore the Court would advise to the next Term but stayed nothing Trin. 23 Car. Banc Reg. THe Court was moved that the undersheriff might return a Iury because the Sheriff For the undersheriff to return a Iury. Return Surm se Petigree Attorney and Coroner were of kinn to the Plaintiff the Court thereupon demanded whether they had brought in the surmise and proved the petigree to which they answered They had thereupon they were bid to name some Atturneys of the Country which was done and thereupon a rule made that they should return the Iury. Nota. Trin. 23. Car. Banc Reg. THe Court was moved for a rule to stay proceedings in the Court at Maidston in Kent To stay proceedings gâ—â—â— the Court at 〈…〉 because a supersedeas could not be granted for that nothing erroneous issued out of this Court But the Court answered that a supersedeas might well be granted and so said Hodsden the Secondary although nothing erroneous be issuing out of this Court and Bacon Iustice said that the Writs of the Court are as good and of as much force as the rules of Court Writs Rules and therefore we will make no rule to stay their proceedings but you shall have a supersedeas if you will Person and Dawson Mich. 23 Car. Banc. Reg. AN Action of the Case was brought by Person against Dawson for these words Arrest of Iudgment in an Act on for words your Son innuendo your Son William stole a horse and sold him for ten pounds The Plaintiff hath a Verdict the Defendant moved in Arrest of Iudgement that the words are not actionable because uncertain Case VVords and the innuendo cannot help them and the Iudgement was stayed till the other should move It was afterwrads moved again and the Iudgement stayed and this Term Iudgement given for the plaintiff Mich. 23. Car. Banc. Reg. THe Court was moved to quash an Endictment upon the Statute of usury To quash an Endictment upon the Statute of usury Pursuance The exception taken was that it is not said corrupte agreavit nec accepit and so the Statute is not pursued Roll Iustice said that it is the corrupt receiving and the corrupt contract upon which Endictments are framed upon the old Statute viz. 3. Jac. c. but if the Endictment be framed upon the Statute of 21 Jac. there it ought to be upon the corrupt contract and because this Endictment is framed upon the Statute of 21 Jac. and mentions not the corrupt contract it is not good and therefore let it be quashed Yates against Lyndon Mich. 23 Car. Banc. Reg. MAry Yates brought an Action upon the Case for speaking these words of her Mary Yates is a Sorcerer and a Witch and a white Witch Arrest of judgment in an Act on for words Case Statute Witchcraft she can witch and unwitch and hath a Verdict The Defendant moved in Arrest of Iudgement that the words are not actionable because the Plaintiff is not by the speaking of them brought within the Statute of 21. Jac. against Witch-craft But Roll Iustice doubted whether the word Sorcerer did not bring the Plaintiff within the Statute Yet Iudgement was stayed till the Plaintiff should move Hill the same year it was moved again and the Court adjudged Nil capiat per billam for they held the words not actionable Turner and his VVife Mich. 3 Car. Banc. Reg. TUrner and his Wife brought an Action upon the Case for these words Arrest of Iudgement in an Action for words spoken of the Wife she is a Witch and I will take my oath of it The Plaintiffs had a Verdict The Defendant moves in Arrest of Iudgement that the words were not actionable for to say one is a Witch and to say no more is not actionable and the last words I will take my oath of it do not enlarge the former words VVords The Court arrested Iudgement till the Plaintiff should move Paradine and Jane Mich. 23 Car. Banc. Reg. Hill 22 Car. rot 1178. PAradine brought an Action of Debt for rent due for lands Argument in debt for rent upon a lease for yeares let for years unto Iane the Defendant and declares particularly how much rent was due and for what time The Defendant pleads a special Plea to this effect as to part of the rent for which the Action is brought he confesseth the Action As to the rest he pleads that Prince Rupert an Alien and an Enemy of the King invaded the land with an Army and with divers armed men did enter upon him and did drive away his Cattell and expelled him from the lands let unto him by the Plaintiff and kept him out that he could not enjoy the lands for such a time and demands judgement if for the rent incurre during that time the Plaintiff ought to have his Action Demurrer To this Plea the Plaintiff demurrs and for cause saith that it is neither good in matter nor form The 1. question was whether a Lessee for years ousted by an Army or Aliens can plead it in Barr Plea Debt contract VVâ—st in an Action of Debt brought for rent due upon the Lease And to this it was said that this is an Action of Debt and lyes meerly upon the contract between the partyes and so this collaterall matter pleaded is nothing to the purpose but had it been an Action of wast if the wast had been done by Pr. Rupert and his Soldiers it may be it might have been pleaded to bar the Plaintiff 19.
Verdict he doubted whether it could be helped now in this Court though it might have been helped in the inferior Court where the Action was brought by examination of it and therefore ruled to shew cause why Iudgement shall not be reversed on Friday next It was this Term reversed at the Defendants motion for his own expedition Brooke and Brook Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 580. BRooke brings an Action of Debt upon an Obligation against Brook the condition was Demurrer to a plea in debt upon an Obligation that the Obligor should make an Estate of inheritance to the Obligee in such lands at such a day and place and for not doing it he brings his Action The Defendant pleads that he was ready at the day and place to make the Plainiff an estate of inheritance in the lands The Plaintiff demurs to the plea Notice and for cause shews that the Defendant doth not shew that he gave notice to the Plaintiff of his being there To this Roll Iustice said it is not necessary to give notice of the day or place A second exception was that he had not shewed that he gave the Plaintiff notice what estate of inheritance he would make him To this Roll Iustice said he ought to have shewn Time Place that he gave notice what estate he would make him and therefore let the Defendant shew cause why the Plaintiff should not have Iudgement Kale and Iocelyne Mich. 23 Car. Banc. Reg. Trin. 23 Car. rot 1282. KAle brings an Action of Debt against Iocelyne an Executor Demurrer to a plea by an Executor in Debt for reâ— brought against him Plea Executor VVaiver Covenant and declares for rent grown due since the death of the Testator by virtue of a lease for years made of certain lands by the Plaintiff unto the Testator which yet continues and declares that the Executor debet detinet c. The Defendant pleads fully administred the Plaintiff demurs upon the plea For pleading in the debet and the detinet Bacon Iustice said it was good and so had been adjudged To which Roll Iustice answered it had been adjudged pro con to be good and to be bad and he said that an Executor cannot waive a Term let to the Testator for he is bound by Covenant to hold it and said that the Declaration was good in the debet and detinet prima facie for it shall be intended that the land let to the Testator is worth as much by the year as the rent that is paid for it till the contrary be shewn and then it is reason that the Executor be charged Bacon Iustice said that the Executor may waive the possession if he find that the rent is more than the land is worth otherwise it may be mischievous to him Roll. Iustice said that the Declaration must be in the detinet and debet otherwise it will be mischievous to the Plaintiff and said that a specialty shall be satisfied before a rent reserved upon a lease by deed Allets which Bacon denied and it was said that a lease for years shall be assets in the hands of an Executor although the rent reserved be the full value of the Lands let by the lease The Defendant was ordered to shew cause why Iudgement should not be given against him Baker against Edmonds Mich. 23 Car. B. Reg. Hill 22 Car. rot 222. BAker brings an Action upon the Case against Edmonds Special verdict in an Action upon the Case whether a verdict maintains the issue joyned and declares that whereas I. S. was indebted unto the Plaintiff in a certain sum of mony and afterwards being so indebted became a Banckrupt and that a Comission upon the Statute of Bankrupt was taken out by him and other creditors against him and that it was found that the Defendant was indebted to the Banckrupt the Commissioners of the said Commission did assign over the Debt of the Defendant mentioned in a certain schedule amounting to such a sum unto the Plaintiff in part of satisfaction of the Debt owing unto him by the Banckrupt by virtue whereof he demands the said Debt of the Defendant who did assume promise to pay the same and for not performing his promise he brings his Action the Defendant pleads non Assumpsit and thereupon an issue was joyned and a speciall verdict was found to the effect as the Plaintiff had declared but they further find that the Debts mentioned in the schedule and assigned over to the Plaintiff amounted to such a sum whereas they find that the Defendant did not owe unto the Banckrupt so much as that Debt assigned is but a lesse sum And upon this verdict the question was Verdict Issue Assignment whether the verdict did maintain the issue which was non Assumpsit if it did then they find for the Defendant if not then for the Plaintiff In the breaking of the Case it was moved whether the Assignment were good or no in regard that the Commissioners had mistaken the Debt for the Debt assigned by them was greater than the Debt found by the Iury and so might be another Debt But to this Roll Iustice said that the assignment was not judicially before them in question for if it were it would be judged an ill assignment but here it comes not in issue but only whether the Defendant did assume and promise or no and the speciall verdict concludes not upon the assignment but whether the speciall matter found do maintain the issue or no therfore he was of opinion that the Plaintiff ought to have his Iudgment Bacon Iustice differed in opinion said that it is dangerous for Commissioners of Bankrupt to assign Debts particularly Commissioners The rule then was to argue it the next Term At which time Ward of Councel for the Defendant argued that the verdict was for the Defendant for this reason viz. Because the Debt laid in the Declaration and the Debt found by the verdict are not the same and so the Defendant did not assume and promise that which is laid in the Declaration for there is no such Debt found and if he should be charged with that he might be doubly charged Averment for he may be again charged for the debt found by the verdict and circumstances of quantity time and place are averred in a Declaration to make things certain and if they fall the Declaration is not good 18 E. 3. fol. 25. 1. rep 74. Palmers Case 2ly The Declaration is insufficient for it expresseth not what the sum is but saith a sum mentioned in a schedule of Debts which is incertain Roll Iustice interrupted Ward and said all that you have argued is out of dores but the last matter touching the Declaration and to that Hales of Councell with the Plaintiff said the Declaration is good and certain enough for there appears no other sum in the schedule than is mentioned in the Declaration Bacon Iustice The
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
supposed to be done in fee and so seised did demise the same for years by deed to the Plaintiff reserving rent in which deed was a clause of reentry for non payment of the rent and afterwards made his last Will in writing and dyed by which will be gave the said land in qua c. to the Defendant and that after the rent was behind and that he for the non payment of the rent according to the Covenant in the deed by virtue of the clause of reentry did enter intot he lands which is the same breaking of the Fence and entry for which the Plaintiff brings his Action and demands Iudgement if the Plaintiff ought to have his Action To this Plea the Plaintiff demurs and shews for cause That it doth not shew that the lease made to the Plaintiff is a lease of the land in which the Trespasse is supposed to be done 2ly Licence The Defendant doth not shew that he did â—nter into the land by leave of the Executor which he ought to have done for though the land was devised to him by will yet he cannot enter into the land without leave of the Executor The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea. and Long. Mich. 23 Car. Banc. Reg. THe Plaintiff brought an Action upon the Case for these words spoken of him Arest of Iudgment in an action for words Long is a murtherer and hath bewitched my Child and was the death of my Child and obteins a verdict The Defendant moves in arrest of Iudgement and takes these exceptions to the Declaration 1. That it is not said that the Child was bewitched to death 2ly It doth not express whether the Child bewitched was born alive or not To this the Court said Felony that the bewitching of the Child is Felony though it do not dye by it And to the second exception That the Court doth not take notice of a Child if it be dead-born and they will intend it was born alive and Roll Iustice said that these words Thou didst kill my Masters Cook Averment have been adjudged actionable although the Plaintiff did not aver that his Master had a Cook Therefore let the Plaintiff take his Iudgement if better matter be not shewn Saturday next Carver against Pierce 23 Car. Banc. Reg. CArver brings an Action upon the Case against Pierce for speaking these words of him Arrest of Iudgement in an action for VVords Thou art a Thief for thou hast stollen my Dung and hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actioanble for it is not certain whether the Dung be a Chattel or part of the Free-hold and if so it cannot be Theft to take it but a Tresspass and then the Action will not lye Chattel Bacon Iustice Dung is a Chattel and may be stollen But Roll Iustice answered Dung may be a Chattel and it may not be a Chattel for a heap of Dung is a Chattel but if it be spread upon the Land it is not and said the word Thief here is actionable alone Felony and there are no subsequent words to mitigate the former words for the stealing of Dung is Felony if it be a Chattel Bacon Iustice said It doth not appear in this Case of what value the Dung was and how shall it then be known whether it be Felony or pety Larceny To this Roll answered the words are scandalous notwithstanding and actionable though the stealing of the Dung be not Felony The rule was to move it again Tuesday next Mich. 23. Car. Banc. Reg. A Writ of Error was brought in this Court to reverse a Iudgement given in the Marshals Court Error to reverse a Iudgment for discontinuance in the Process Discontinuance and the exception taken was that there was a dicontinuance in the process and so there ought to have been no Iudgement and therefore the Iudgement given is erroneous and that there was a Discontinuance it thus appears The Continuance was ad proximam Curiam and it appears upon the retorn of the Venire facias that that was no Court day for it was the three and twentyeth day of the Month whereas Friday on which day the Court was held was not the 23 day and so there is Error in the continuance Roll Iustice said the former Continuance was to the 9th day and from thence to the 15th and that is but six daies and so wants of the time Iudgement Bacon Iustice Where there is a Discontinuance the Court hath no power to give Iudgement and so the Iudgement is here erroneous and therefore let it be reversed nisi causa c. Mich. 23 Car. Banc. Reg. LEssee for years of Lands by Deed Demurrer to a Plea in an action of Covenant brings an Action of Covenant against the Lessor and declares that the Lessor had covenanted that he should peaceably and quietly enjoy the Lands let during the Term and that a Stranger entred upon him and ousted him within the Term. To this Declaration the Defedant demurs Roll Iustice said that the Covenant in this Case is broken though it be a Stranger that entered and ousted the Lessee Walker of Councel with the Defendant took this difference where a Stranger enters upon the Lessee and doth a Trespass and where he enters and outs the Lessee in the former Case he said Covenant the Covenant is not broken but in latter it is broken Iudgement was given for the Plaintiff except cause should be shewn Monday next Thynn against Thynn Mich. 23 Car. Banc. Reg. Hill 23 Car. rot 1658. THynn brought an Action of Dower against Thynn Error to reverse a Iudgement in Dower Return Proclamation and hath a Iudgement by default and thereupon a Writ of Enquiry issued out to the Sheriff who delivered seisin of the Dower recovered and returned the Writ upon this Iudgement The Defendant brings a Writ of Error and assigns these Errors in the Record 1. The original Writ appears not to be returned according to the Statute for the year doth not appear when it was returned 2ly The Proclamation made by the Sheriff appears not to be where the Land lyes 3ly Summons The return doth not mention that the Proclamation was after the Summons as it ought to be as it is Hob. Reports in Allens Case 4ly It is not said that he did make Proclamation upon the Land 5ly It appears not that the Proclamation was in the Parish where the Summons was as the Statute directs To these exceptions Hales of Councel on the other side answered To the first Return that the retorn of the original Writ shall be intended to be in the year of the Reign and not of the Age of the King though the word Reign be omitted To the second the Lands lye in divers Parishes and Proclamation at the Church of any of the Parishes is good
Parish shall not be intended larger than a Vill if the contrary do not appear but here the contrary doth appear by the words of the Demand which are de rectoria de Imber Tymesbury infra parochia de Imber 3 4 Phillip Mary Dyer 142. and the different penning and expression of the Demand is to be observed Grant Abatement Variance for by that it appears there is a difference betwéen Imber and the Parish of Imber Grants Fitzh 87. by granting a Mannour with the appurtenances an Advowson will pass 19 E. 2. Tit. brief the Writ abated for variance betwéen the Writ and the Count. A 4th Error is to avoid the execution because of the Error in fait for the Hundred of Warmister doth extend to Sutton parva which is not named in the Writ and so the dammages are given for more than is demanded Dammages Intendment and it shall not be interpreted by Intendment and the Hundred is not demanded for the Vill relates to the Land and not to the Hundred 6 E. 3. 12. 8 Rep. 119. Bonhams Case and prays Iudgement for the Plaintiff in the Writ of Error Maynard of Councel with the Defendant desired time to argue and it was granted Postea Chambers against VVollaston Hill 23 Car. Banc. Reg. Mich. 22 Car. rot 21. CHambers brought an Action of Assault and Battery Demurrer upon the Custom of London pleaded and false imprisonment against Wollaston Wollaston pleads a special Plea of Iustification by vertue of a Custom in the City of London whereby he had authority to take and imprison him for disturbing an Election of Wardens of a Company and untill he would promise not to disturb such Elections afterwards To this Plea the Plaintiff demurs and takes these Exceptions 1. Custome The Custom pleaded is against Law for it appears not that there was any sute depending either by Bill or Endictment or otherwise and so the Custome is against Law Stat. 25 E. 3. C. 4. 25 E. 3. C. 3. and so was the Petition of Right 3 Car. And though the Customs of the City of London are confirmed by Statute-law yet illegal Customs are not confirmed 2ly Iudgement The Iudgement is against Law for by the Iudgement no remedy is given for the offence committed to the party against whom it is commited but only that the offendor shall be imprisoned untill he promise not to disturb Elections again 3ly The party committed is not within the Custom by the Defendants own shewing 4ly The Custome set forth is not prosecuted for the commitment is not for the Disturbance but because the party will not promise not to disturb again 5ly The detension of the party in prison is against Law Hales of Councel with the Defendant desired time to argue and the Court desired to have Books Holdigh against Chace Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 326. HOldigh brought an Action of Debt against Chace A special Verdict upon Non est sactum pleaded to a boad as an Executor upon an Obligation made to the Testator The Defendant pleaded non est factum and upon this Plea an Issue was joyned and a special Verdict found upon which Verdict the Case appeared to be this The Defendant Chace was bound in an obligation for the payment of a certain sum of mony unto A. B. and to I. S. joyntly I. S. dyes A. B. survives and makes Holdigh his Executor and dyes Holdigh brings an Action of Debt in his own name against Chace the Defendant and declares upon this obligation made to the Testator and to I. S. and doth not aver that the Testator did survive I. S. The Defendant pleads non est factum and the question was whether this be a good plea or no and to prove that it is no good plea Plea but that it was the deed of the Defendant the Councel for the Plaintiff cited these books 3. H. 6. 4. 35 H. 6. fol. 39. 46 E. 3. 7. 14 E. 4. fol. 4. 18 E. 2. 2. and put this case Two enfants joyntenants alien and one dies The surviver brings a dum fuit infra aetatem and counts of the Feofment of one of them and there the right was adjudged not to be severed by the Feoffement and so the writ good and in our case the matter of variance alleged goes to the writ and not the Action and it is now too late for the Defendant to take advantage of it and prayes Iudgement for the Plaintiff Roll Iustice said the issue is whether it be the Defendants deed or not and without doubt it is his deed and therefore let him shew cause why the Plaintiff should not have Iudgement Boone against Sheers Hill 23. Ba. Reg. Trin. 23 Car. rot 288. BOone brought an Action of Debt upon an obligation of 400 l. Demurrer to a Plea against Sheers and declares that the condition of the obligation was that the Defendant should make such a voyage with a Ship and pay certain monyes at his return and other conditions mentioned and for not performing the conditions he brings his Action The Defendant pleads in bar that the Ship was taken in the voyage per homines bellicosos Plea and demands Iudgement of the Action To this plea the Plaintiff demurred and shewed for cause that the Plea did not give answer to all the Declaration Demurrer Yard of Councell with the Defendant said the plea was good for the plea answers the whole condition of the Bond which was first to make the voyage with the Ship and then at his retorn to perform the other conditions and being hindred in the one he was not bound to perform the other Bacon Iustice Let us see a book to consider of Royston against Mees Hill 23 Car. Banc. Reg. ROyston makes a lease for years of certain lands to I. S. rendring rent Arrest of Iudgement in Debt the lessee makes his will and makes Mees the Defendant his Executor and dyes the Executor possesseth himself of the remainder of the term of the lands let and after the rent is behind Royston brings an Action of Debt against the Defendant and declares against him for the rent so behind in the debet and detinet and upon this an issue is joyned and a verdict for the Plaintiff The Defendant moves in arrest of Iudgement Declaration and shews for cause that the Declaration is not good because the Action being an Action of Debt brought against the Defendant as an Executor it ought to have been in the detinet and not in the debet and detinet But Wild of Councell with the Plaintif argued that the Declaration was good and the Action well brought in the debet and detinet and cited Brook title extinguishment 34. and the comment 526. and said it is an Action founded upon a lease by deed which was made by the Testator and cited 20 H. 6.10 H. 7. fol. 50. And that it is the constant form of charging
Executors in such cases 14 H. 4. fol. 29. Fitzh Tit. responder 7 E. 6. Dyer 81.10 rep 128. And said the verdict hath found it in the debet and detinet which shall be intended to be true 9 Ed. 4.41.17 Jac. Paul and Mordyes Case in the Common pleas and 7 Iac. Smith and Nicholas Case and prayes Iudgement for the Plaintiff Hales for the Defendant argued that the Declaration is not good 1. He said the Action is good in the detinet because the profits of the land let which are over and above the rent to be paid for it reserved upon the lease shall be only assets in the Executors hands Difference Contract 2. It cannot be good both wayes and the Term is in him as Executor not the rent and there is a difference between contracts Executory and contracts Executed but it may he said the rent to be paid may be more than the profits of the land is worth â— answer this shall not be presumed in law if it be not so shewed 43 Ass pl. 23.16 H 7. fol. â— The Action is brought for all the rent incurred therefore it shall not be presumed that the land is not worth the rent that is paid for it Verdict and as for the verdict it shall help nothing for a verdict shall not supply a necessary part of a Declaration omitted and if he owes then he detains and I conceive Hargraves Case to be good Law though denyed by the Councell on the other side and here the privity of the contract is not determined and so prayes Iudgement for the Defendant Roll Iustice It is for the advantage of the Executor to bring the Action in the detinet for then he sh ll be charged only for the goods of the Testator and not for his proper goods and it may be the land is lesse worth than the rent and that the partyes have consented the Action should be brought in this maner Bacon Iustice cited Pawls Case Mich. 17 Iac. But entred Pasc rot 346. That the Action may be brought in the debet and detinet and if the Plaintiff will bring his Action here in the detinet it is not for your disadvantage and he may at his election bring it either way Roll Iustice Here the verdict answers the point of the issue and therefore is good The Court ruled the Plaintif to take his Iudgement except better cause shewn to the contrary William against Tyrer Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 224. VVIlliam brought an Action of Trover and Conversion against Tyrer for certain goods of the Plaintiff the Plaintiff hath a verdict Arrest of Iudgement in Covenant The Defendant moved in arrest of Iudgement and took these exceptions to the Declaration 1. The Plaintiff declares pro tribus duodenis fili Anglice dosens of thread Declaration which is incertain for it may be three dosen pound of thread or skenes of thread or ounces of thread To this it was answered that it cannot be otherwise expressed and the words dosens of thread is used amongst Merchants and well known unto them what is meant by them 2ly He declares for so many pounds Muscat in stead of Nucum Muscat ram Anglice Nutmegs But this exception was mistaken for the record was otherwise and besides it was with an Anglice which makes it certain The Court ruled Iudgement to be entred except cause shewed for the Plaintif Rawson against Bargue Hill 23 Car. Banc. Reg. THe Case between Rawson and Bargue being an Action of Debt upon the Statute of 2 E. 6. for not setting forth of Tithes â— Arguments whether a free Chapel or no and the Iudges opinions wherein upon a speciall verdict the question was whether the Church were a free Chapel given to the King within the Statute of 1 Ed. 6. was again argued by Latch for the Plaintiff and by Brown for the Defendant Latches argument was to this effect 1. He said that the Law sayes it is presentative although it be not and 2ly It is sufficiently found to be a parochial Church yet it is not material whether it be found so or no. Next the words of the Statute do not extend to give donatives to the King 3ly It is not given to the Crown and although the Declatation and verdict be that it is a free Chapell yet it is not comprehended as a Chapel presentative Lit. 94. The word free makes a distinction of things and the party ought not to confound things Free Chapel and a free Chapel is alwayes interpreted for a Church donative and not presentative The right investiture of Churches was challenged from the foundation of them untill within this 400 years it was altered by the Common law Seldens History of Tithes fol. 392. and upon that alteration the name of a free Chapel came Reg. 41. It is said to be free from ecclesiasticall jurisdiction Fitz. tit Brief 6.0.3 Ed. 3. Fitz. Tit. Ayde du roy 33.14 H. 4.11.22 H. 6.25.22 H. 6.27 by Danbye 26 H. 6. Fitz. grants 12. Nat. brev 33 E. 34. f. 27 E. 3.84 Cowels interpretor Tit. free Chapel And in all Statutes the word free Chapel is meant of donatives Stat. 26 H. 8. cap. 3. Stat. 37 H. 8. cap. 4. Stat. 1 Ed. 6. cap. 14. Regist 307. But it is objected that free Chapels extend to presentatives Presentation Donative because they are with cure Lit. Com. 344. a donative may be parochial 7 E. 3. f. 4. To this I answer Churches had cure of souls when they were donatives To the 2d point by the meaning of the Statute it appears Tenure Frank-almoigne that only donatives were intended as the preamble of it doth declare And all Chapels are held in Frank almoigne as well as donatives and so all may be given to the King by the same reason Another objection is that the word Capella is superstitious and therefore being of a superstitious foundation it is given to the King and Cowels Interpretor is urged to prove the word to be so derived To this I answer that Sir Henry Spelman as learned an Author as Cowell in his glossary rejects Cowells derivation of the word Capella and saith that Capella is used promiscuously for any upper covering And though the name were superstitious yet that makes not the Chapel to be so for so the Church of St. Andrew or St. Dunstan should be superstitious and given to the King by the Statute There is a double preamble of the Statute 1. A recitall of another Statute Preamble and the taking away of other superstitious uses Preamble of the Statute 37 H. 8.22 Ed 4. cap. 7.8 rep 137. beasts of the Forest are not Cattel 3. rep The marques of Winchesters Case Com. 204. That some generals may be taken in a restrained sence 9 H. 6.36 Interpretation Words of a Statute ought not to be interpreted to destroy naturall Iustice The stile also of the Act doth not shew that donatives are only intended
might have pleaded this in the Admiral Court Hill of Councel for the Prohibition said it is not material what the parties have done in the Common-pleas for this Court is not bound by it Roll Iustice If the matter of your surmise here be tryed already in the Common-pleas why should you move here upon the same surmise Surmise Arbitrary Conclusion But it is not arbitrary to grant a Prohibition or not to grant it if there be cause to grant it and the Tryal in the Common-pleas is no conclusion to us and if it be mischievous as is objected Prohibition to grant a Prohibition after a Consultation granted the Parliament may make a Law to prevent that mischief for as the Law now is it may be done Yet we will advise Gaudy aginst Ingham Hill 23 Car. Banc. Reg. IVdgement was given against an Administrator in an Action of Debt brought against him Error upon a Iudgement against an administrator Iudgement in the Common pleas upon fully administred pleaded and a writ of Error was here brought to reverse the Iudgement The Error assigned was that Iudgement was given for the whole Debt whereas the verdict found that the Defendant had assets only to discharge a part of it To this the Court said if it be found he have any assets Iudgement must be given against him for the whole debt upon his false plea but if he have no assets it is otherwise Allen against Reeve Hill 23 Car. Banc. Reg. Mich. 23 Car. rot 88. ALlen brings an Action of Covenant against Reeve Arrest of Iudgement in an Action of Covenant and his wife upon a lease expired made of certain houses by deed unto the wife dum sola suit wherein was a Covenant to keep the houses in repair during the term for breach of this Covenant is the Action brought and declares as to one of the houses that it was burnt by negligence The Defendants plead a special plea to this effect That the house which was burnt was not burnt by negligence In arrest of Iudgement nor with Common fire as the Plaintiff hath declared and as to the rest they plead the general issue that they were in good repair at the expiration of the term the Plaintiff hath a verdict Nicholes of Councel with the Plaintiff said it conteins a negative preignans for there are two matters offred in issue one that the house was not burned by common fire Negative preignans Demurrer 2ly That it was not burned by the negligence of the party Roll Iustice If it be a negative preignans as you say it is you ought to have demurred unto it as to a double plea. But let us see the book and stay in the mean time Hobson against Heywood Hill 23 Car. Banc. Reg. Trin. rot 791. HObson brings a writ of Error in this Court to reverse a Iuhgement given against him at Bristow in an Action of Debt for rent Error to reverse a Judgement in Bristow in an action of Debt Error and assigns for errors that the sum demanded to be due for rent was in figures and not in words as it ought to be 2ly It is said that the Iury Assideint damna for Assident damna The Court held they were both material exceptions and reversed the Iudgement except cause should be shewn to the contrary Saturday following Chambers against Floyd Hill 23 Car. Banc. Reg. VPon a rule on the Crown side to shew cause why an Attatchment should not issue out against two Iustices of peace for not allowing a certiorari directed to them out of this Court to remove an endictment of forceible entry taken at a private Sessions before them Cause against issuing of an attatchment The Councel for the Iustices urged that they had not contemned the Processe of this Court as is surmised for the certiorari ought to have been delivered in open Sessions of the peace and there allowed Allowance but this was delivered at a privat Sessions and so they were not to allow it 2ly The party who procures the certiorari ought according to the Statute to put in security Certiorari at the delivery thereof to prosecute or else it is not to be allowed but that was not done here and therefore they were not bound to allow it And the certiorari is to remove an Endictment of forcible entry but the retorn is that it was a peaceable entry and a forcible deteyner Retorn so that there being no such Endictment before them as the certiorari mentions they could not make a retorn according to the writ and therefore it is no contempt in the Iustices not to make a return The Court answered Contempt that it is the usual course of the Court to make certioraries in this form and therefore this is no excuse The Councel against the Iustices urged that this case is within the Statute though it were at a privat Sessions of the peace and therefore the Iustices are in contempt Roll Iustice said I conceive that this is casus omissus not provided for by the Statute and if so then are they not in contempt Casus omissus and if some Iustices take an Endictment of forcible entry other Iustices cannot give restitution upon this Endictment Bacon Iustice Restitution The Statute is a remedial Law and made for the ease of the subject and ought not to be construed strictly And said Construction that a privat Sessions is a Sessions but security ought to be put in at the quarter Sessions for it shall be intended that all the Iustices of the County are there Roll Iustice said Security that a privat Sessions ought to take security and the Endictment ought to be retorned there but the certiorari is not good for it mentions not the title of the Act yet the generall practice of the Court seems to warrant it as it is The Court ordered the party to have restitution and the contempt to be spared by consent of partyes if cause not shewn to the contrary before the end of the Term. Hill 23 Car. Banc. Reg. THe Court was moved upon an Assidavit for a prohibition to the Court at Doncaster For a prohibition to the court at Doncaster Prohibition Attatchment and for an attatchment against the Maior for refusing to allow of a forein plea tendred by the Defendant in an Action of Debt brought against him for rent for lands that lye out of the jurisdiction of the Court and for proceeding against him notwithstanding the tender of the plea. The prohibition and attatchment were granted if cause not shewn to the contrary before the end of the Term. David against Lyster Hill 23 Car. Banc. Reg. THe Court was moved by the Plaintiff that the Defendant might be ordered to plead an issuable plea For the Defendant to plead an issuable plea. which he had not done for the Action is an Action of ejectione firmae in which the Plaintiff hath
not in contempt to the Court. Roll Iustice said Then is the Execution now well executd Execution and the Sherif is in no fault Maynard of Councel with the Plaintif in the writ of Error moved that the Execution was awarded improvide and therefore the Court may restore the party to his goods taken in Execution although the Sherif be not in fault Roll Iustice The party ought to take notice of a recipitur upon the Record if it be entred and if the party take out Execution after the writ of Error is allowed he is in contempt to the Court else not and the Attorny is not bound to view the Record whether a writ of Error be brought but may take out Execution if there be not a Supersedeas Supersedeas or notice given to the party Therefore there is no help here for the proceedings have been according to the course of the Court for by the delivery of the writ of Error to the Officer of the Court the hands of the Court are closed Yet let us see the President that Wood ward hath to shew and let the Secondary examine it again Trin. 24 Car. Banc. Reg. AN Action of accompt was brought touching the fraight of a Ship For a scire facias against manucaptors and a Iudgement that the Defendant shall accompt and Auditors assigned and Manucaptors found to appear before the Auditors the Court was moved for a scire facias against the Manucaptors because that the Defendant did not appear at the day before the Auditors assigned and secondly it was moved that the Court would assigne a day peremptory Certificaâ—e Auditors for the party to appear before the Auditors But Roll Iustice said a day cannot be assigned untill a certificate be made to us from the Auditors for they are trusted and are Iudges of the cause and have power to excuse the non-appearance of the party at the day if they see cause and to give longer day or shorter for the party to appear as they think good end therefore till they certifie neither can you have a day assigned Scire facias nor a scire facias against the Manucaptors Clementson against Montford Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1493. A Writ of Error was brought to reverse a Iudgement in an Action upon the Case brought by an Administrator in the Court at Esham Error to reverse a Iudgement in an action upon the case The Errors assigned were 1. The Plaintiff doth not declare that the administration was granted unto him per loci illius ordinarium 2ly The Plaintiff saith in his Declaration producit litteras Administratorias intestati whereas it should be ordinarii and not intestati 3ly The Court cannot by its privilege being an inferiour Court Capias and that but newly erected award a Capias upon entring the plaint as it is here done 4ly The Court began first to be a Court but 9 Iac. and yet it is said to be held per usum et consuetudinem curiae Twisden to the 1. exception said that it is helped by the verdict Roll Iustice asked how doth it appear that Esham is within the Diocess of the Bishop that granted the Letters of Administration for if it be not the Letters are not well granted And said that in a Declaration it is not necessary to say that Letters of Administration are granted per loci illius ordinarium aut cui pertinuit Administration Declaration Plea although they ought to be so pleaded in a plea in Bar. To the second exception Twisden answered that the words mentioned are not necessary and the Declaration would be good enough without them and therefore they shall not hurt it though they he mistaken and if it should be otherwise yet they are helped by the verdict and to the first exception he said that the words secundum usum et consuetudinem shall be intended to be meant according to the Law and not according to ancient usage as is urged by the Councell on the other side The rule was that Iudgement be affirmed except better matter should be shewn Monday next Read against Palmer Trin. 24 Car. Banc. Reg. REad brings an Action upon the Case upon an Assumpsit to stand to an award against Palmer Arrest of Iudgement in an action upon the case and hath a verdict The Defendant moves in arrest of Iudgement and shews that there was an amendment in the consideration and the promise after the issue joyned Twisden answered it is not material though it be so for the matter of the Assumpsit is implyed and the words altered are idle and cited 37 â—l Heydons Case for it is de et super praemissis Amercement which implyes all the matter Roll Iustice said that the words de et super praemissis goe not to the time but to the matter submitted and said that the words postea scilicet eodem die Contract in law special contract upon a contract in Law shall be intended the time of the contract but here is a speciall contract and collateral and it ought to be otherwise intended and desired to see a book Freeborn against Purchase Trin. 24 Car. Banc. Reg. Hill 23 Car. rot 1575. FReeborn brought an Action upon the Case against Purchase Demurrer to a Declaration in an action upon the case and declares that the Defendant in consideration that the Plaintiff had paid unto him such a sum of money did assume and promise to joy in the surrender of certain Copyhold Lands and that for not performing this promise he brings his Action The Defendant demurs upon the Declaration Request and shews that the Plaintiff doth not allege that he made any request to the Defendant to joyn in the surrender which he ought to do for it was not a single Act to be done by the Defendant alone but he was to joyn in the Act with another Roll Iustice said the promise is that the Defendant shall joyn in the surrender Breach and he doth not say that he did request him to joyn which he should have done And besides the breach is not well assigned for you have assigned a particular way how he should surrender namely into the hands of 2 Tenants of the mannour whereas he did assume only to joyn in a surrender which may be in Court or into the hands of the Lord as well as into the hands of two Tenants so is Syms and Walkers Case 9 Car. Also the Plaintiff ought to have shewed that there is such a particular custom in the manour Notice that a Copyhold Tenant may surrender into the hands of two Tenants of the manour or else such a Custom cannot be taken notice of Therefore let a nil capiat per billam be entred against the Plaintiff Wright against Martin Trin. 24 Car. Banc. Reg. THe Court was moved to change the venue in an Action for an escape To change a venue in an action for an
because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
a verdict and upon the Defendants motion the Iudgement was former y stayed The Plaintiff moves for Iudgement notwithstanding for that the words are actionable The Court said the words are scandalous and by them he is disgraced in his Trade Hales of Councel with the Defendant said that there were other words in the Declaration which are not actionable and yet dammages are given for both Dammages which ought not to be and therefore no Iudgement could be given The words said not to be actinable were these Have a care and do not trust him for he will run away and pay you nothing But the Court held that both the words taken together are actionable and ruled the Plaintiff to have his Iudgement for both the words if better matter be not shewed Nelson against Tompson Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 343. NElson brought an Action of Debt against Tompson upon an Obligation with a Condition to save the Plaintiff harmless Demurrer to a replication in Debt upon an Obligation The Defendant pleaded non damnificatus The Plaintiff replyed and shewed a breach on the Defendants part whereby he was damnified The Defendant demurs to the replication and for cause shews that the breach was assigned to be at Westminster Place and doth not shew in what County Westminster is The Court held that though Westminster be a City yet it ought to be shewed in what County it lyes because it is not a County of it self Therefore advise what you will do for the Action is fit to be discontinued Discontinuance Thyn against Thyn Mich. 24 Car. Banc. Reg. LAtch moved again in this case that the Summons doth not appear upon the retorn to be well made Whether a Summons well retorned for it is not said to be made at the Church-dore as the Statute directs To this nothing was answered But Bacon Iustice said the retorn was naught for another reason and so there is no Record before us to proceed upon in the Writ of Error the fault is this The Custos brevium ought to make the retorn here and it is mentioned to be made per unum deputatorum suorum Retorn whereas his Deputy had no authority to do it Therefore you had best to take a new Writ of Certiorari and certifie the same matter by it and this the Court may grant though it be very rare for if one will assign an Error in a Record and pray a Certificate and nothing be done upon it we cannot proceed Consider which way you can help this fault Tracye against Poole Mich. 24 Car. Banc. Reg. TRacye brought an Action upon the Case against Poole upon a promise Arrest of Iudgement in an action on the Case upon a promise and declares that Poole the Defendant in consideration of a mariage to be had between the Plaintiffs son and the Defendants daughter of setling so much Land upon him upon the mariage He did assume and promise that within such a time after the mariage had he and his Son should be bound per scriptum suum debita juris forma fiend unto the Plaintif for the payment for 3000 l. for a mariage portion assigns the breach that the Defendant his son did not become bound per scriptum suum Obligatorium for the payment of the 3000 l. and for this he brings his Action The Plaintiff had a verdict The Defendant in arest of Iudgment moves that the breach was not well assigned Breach for the Assumpsit was that the Defendant and his Son should be bound per scriptum suum debita juris forma fiend and the breach is that they did not give security per scriptum suum Obligatorium which agrees not with the Assumpsit for the Defendant might give security by a Iudgement which is not scriptum suum yet it is debita forma juris factum upon this the Iudgement was for that time stayed though then Bacon Iustice enclined that the breach was well assigned because in common construction it shall be intended that the Defendant assumed to give his own and his sons bond for security Hales of Councel with the Plaintiff at another day moved for Iudgement and held that the breach was well assigned for that it expresseth the substance of the promise though not the very words of it and this was held good 7 Car. in Michill and Cars case 2ly If the meaning of the promise be considered it will appear that the Defendant and his Son were to be bound by Obligation 6 Car. Courtny and Gavills Case and indeed the promise cannot be satisfied by any other way than by an Obligation for a Iudgment or a Statute will not do it for by them he is not said to be bound and though all this be admitted against me yet it is now after a verdict and the Iury have found the breach Maynard for the Defendant argued that the breach was not well assigned for the breach assigned tends to a personal engagement for paying the 3000 l. which is not so expressed in the promise but only a general security to be given for the monies and a recognisance and a judgement are not properly scriptum as in 9 Car. Goldsmith and Sydners Case and the Declaration doth not set forth the death of Sir Henry Poole by whom the security was to be given and so it cannot appear whether he had a convenient time to do it as he ought to have and he held that the Plaintiff was bound to do the first act viz. to tender the Obligation to the Defendant or else he is not bound to seal and deliver any Request and also he ought to make a particular request to him to seal and deliver it Hales replyed if a man plead a Statute it is true that he ought to say per scriptum suum Pleading but pleading ought to be more nice than common parlance 2ly The living of Sir Henry Poole is expressed and there appears time convenient between the promise and the time of his death for performing of it 3ly It is not necessary for us to tender a bond but the other ought to have done it at his own perill for it is to be done at his charge and not at ours Roll Chief Iustice held that Iudgement ought to be given for the Plaintiff and said that for the laying of the promise it is not necessary to pursue the very words of the promise but the substance so that there may appear to the Court that there is cause of Action 2ly He held that there is no variance in the substance for the intent of the parties is to be considered which was to have another act done by Sir Henry Poole and his Son per aliquod scriptum and not by a verbal promise and we are to consider if the breach assigned agree to this and he held that the promise will extend to a Iudgement or a recognisance for a Iudgement Statute or Recognisance
really a Copyholder and cited Shellyes case and prayed Iudgement for the Defendant Roll chief Iustice said This Case differs from surrendring into the hands of Tenants for it is into the hands of the Steward out of Court Surrend Admission which is good and the Lords acceptance of his rent is an admission But Bacon doubted and therefore the rule was for the Case to be argued again the next Term and then by reason of sicknesse I was absent But that Term held not by reason of the Kings death Dunch against Smith Mich. 24 Car. Banc. Reg. DUnch brought an Action of Debt as Executor for arrerages of a rent charge due to the Testator against Dunch Arrest of Iudgement in Debt brought by an Executor an occupyer of the land out of which the rent was issuing and hath a verdict The Defendant moved in arrest of Iudgement and for Cause shewed that the Plaintiff doth not shew any title that the Defendant hath in the Land but only sayes generally that he entred into the Lands and so it appears not that he is to pay the rent To this the Councel on the other side answered that the Plaintiff being but an Executor cannot know the title and therefore is not bound to shew it Roll chief Iustice said there can be no Iudgement for the Declaration is too generall But Bacon Iustice held the Declaration good enough Antea Brown against Poyns Mich. 24 Car. Banc. Reg. THe Case was this a man made his last Will and made two Executors For a prohibition to repeal an administration Prohibition Appeal the Executors dye in the life of the Testator the Testator dyes having two Sisters the eldest Sister procures Administration the younger Sister moves for a Prohibition to repeal the Administration because she being in equal degree of king ought to have equall share of the Administration But the Court answered that a prohibition lies not for you may appeal if the Administration be not rightly granted Mich. 24 Car. Banc. Reg. A Processe issued out of this Court for a Cart and Horses that were cause of a mans death as a deodand 12. Iac. To stay processe for a deodand and it was moved that there hath been a generall pardon by Parliament since that time by which deodands were pardoned and therefore it was prayed the processe might be stayed General pardon The Court asked whether there be not an exception of deodands or the Almoners interest in the pardon The Councell answered there is not The Court demanded by what words in the pardon are deodands pardoned The Councel answered by the generall words The Court ordered thereupon it should be stayed till the Almoner be heard what he can say Mich. 24 Car. Banc. Reg. THe Court was moved for a habeas Corpus for one that was taken in Execution by the Sheriff and was afterwards set at liberty For a habeas corpus for one taken upon one Execution Audita querela and after that retaken upon the same Execution The Court answered take it but you are in the wrong way for you ought to bring your audita querela The King against Bray Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry made upon a Lessee for years upon the Statute of 21 Iac. To quash an Endictment of forcible entry The exceptions taken to it were 1. It doth not appear by the Endictment that the Lessee had any title to the Land at the time of the force committed for the force is supposed to be done before the lease commenced 2ly The lease is supposed to be a lease for so many years if I. S. shall so long live and it is not averred that I. S. was alive at the time of the forcible entry made Averment Roll chief Iustice cited the Lady Morlyes case that there ought to be a direct allegation of the life Therefore let it be quashed Mich. 24. Car. Banc. Reg. THe Court was moved to quash an Endictment of Assault and Battery of an overseer of the poor villae de A. in executing of his office The exceptions taken to it were To quash an Endictment for assaulting a Collector for the poor 1. That there is no such officer as an overseer of the poor villae but it ought to be parochiae but the Court said it was well enough as it was though it had been more proper the other way 2ly The Endictment is for the Assaulting and beating a Collector for the poor in executing his office whereas there is no such office appointed for any one particular man by the Law for the Statute is that there shall be two Collectors for the poor in every Parish and so the office is joynt and not several But the Court over-ruled this exception also 3ly It wants vi et Armis Vpon this exception the Court bid the Councel move it again Gill against Crosse Mich. 24 Car. Banc. Reg. THe Plaintiff brought an Action of Debt against two as Administrators upon fully administred pleaded issue was ioyned Speciall verdict in Debt against Executors and a speciall verdict was found to this effect viz. that one of the Administrators had fully administred and that the other Administrator had assets It was urged against the Verdict that the issue that was found is impertinent and impossible Verdict Iudgement and so there can be no judgement given upon it But the Court answered that the verdict is good yet if Iudgement should be given upon it the Iudgement would be ill and Nevills and Greenwoods case Hill 7. Car. in the Exchequer rot 1189. was cited and it was said that Iudgement may be against that Executor who hath assets and nil capiat per billam against the other that hath fully administred But take Iudgement at your peril Preston against Holmes Mich. 24 Car. Banc. Reg. Trin. or Mich. 24 Car. rot 2052. VPon a special verdict found the Case in effect was this Arguments upon a special verdict upon a Will one in see having one Son by one venter and another Son by a second venter did by his last Will devise all his Lands to his wise for life and after her death to I. his eldest Son and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law and so the devise to be of no effect to make him come to the Lands by purchase Christopher Turner held that the devise is void because it sayes no more than the Law says for if there had been no such devise Iohn his Heirs should have had the Land and he cited Paramour and Yardlves Case in the Comentaries and Hob. rep Counden and Clarks case But it is objected that in this case the Law speaks one thing and the devise another thing and so the devise says not the same thing To this I answer there is no difference concerning the alteration of the Estate
upon the Case and didst kill thy first wife The Error assigned was that it doth not appear in the Declaration that the Plaintif was maried before But the Court affirmed the judgement and said the Defendant hath confessed it by joyning issue non culp upon the words VVood against Topham Trin. 1650. Banc. sup THis case being an Action upon the Case quare filium suum cepit et abduxit Error to reverse a judgement in an Action on the Case et maritavit was again moved and the exception insisted upon was that the Plaintif doth not say Cujus maritagium ad ipsum pertiner But Roll chief Iustice said that it could not be otherwise intended but that the mariage belongs to him and it doth not appear that his Son was maried before and the value of the mariage is not here material for the mariage of his Son belongs unto him as a parent Mariage in regard of his protection and advice Ierman differed and said that if he were maried before he was then Pater Familias and is out of the protection of his Father Protection But Nicholas and Ask Iustices agreed with Roll and Roll said the matter here is not the loss of the mariage for that is but to increase the damages but the Action lies only quare cepit et abduxit Adjourned to be argued the next Term. Antea et Postea Oreswick against Armery Trin. 1650. Banc. sup Mich. 1649. rot 354. OReswick brought a writ of Error against Armery to reverse a judgement given against him in Bristow Error to reverse a judgement in an Action of Debt Debt Custom in an action of debt upon a Concessit solvere according to the custom of the City but the Iudgement was affirmed for the Court said an action of debt will lie by a custom upon a Concessit solvere but not if it be brought against an Executor Custodes Libertat c. against Valconbridge Trin. 1650. Banc. sup THe Court was moved to quash an Endictment of Assault and Battery To quash an Endictment of Assault and Battery The Exception was that the Endictment was taken before the Iustices of Assize and Gaol delivery and Oyer and Terminer and so it doth not appear by vertue of what Commission it was taken Roll chief Iustice He ought to shew by virtue of what Commission particularly it was taken and therefore let it be quashed and a fine of 40 s. set upon the Clark of the Assizes for his negligence Fine Bowles against Clark Trin. 1650. Banc. sup IT was she wed for cause upon a rule of Court why a Prohibition should not be granted to the Prerogative Court Why a Prohibition should not be granted to the Prerogative That in the will which the Prerogative Court endeavoured to repeal there were lands given to the Executor The Court answered If the Prerogative have power to prove a will they may also repeal it by appeal but if lands be devised together with goods they have no power to repeal it as to the lands but if they should have no power to repeal it as to the goods it would be mischievous But they have no authority to make the devise good or ill as to the lands Prohibition And the Court was at first agreed to grant a Prohibition as to the lands only But afterwards the Court held that there could be no such division made of the will by Prohibition as to stand good in part and to be repealed for the rest and so would not grant the prohibition Nota. Keniston against Crouch Trin. 1650. Banc. sup THe Court was moved that upon a Judgement given in the Common Pleas For a rule to enter judgement in the Common Pleas denied since the Act that a writ of Error shall be no supersedeas a writ of Error was brought in this Court and the record removed but that depends undetermined and that the party had moved for execution in the Common Pleas but the Clarks refuse to make out execution without the rule of this Court Rule and therefore a rule was prayed to them to make out execution But the Court answered procéed as the Act directs we will make no rule But we conceive there is no writ of Error now depending and therefore you may take out execution of Course Q. Tamen Execution for it was doubted at the Bar. Denton against Harison Trin. 1650. Banc. sup DEnton brought an Action upon the Case against Harison in London For a Procedendo to London for speaking these words Thou art a Whore and my Husbands Whore and he doth maintain thee The Defendant removed the cause into this Court by a Habeas Corpus whereupon the Plaintif moved for a procedendo Roll chief Iustice was of opinion that a procedendo ought to be granted for if it should not the party hath no remedy to proceed and if they do proceed in London and the judgement he thereupon erronious the party grieved may bring a writ of Error in the Hustinges and reverse it Ierman Iustice said here is a wrong done and the remedy is given according to the custom of the City and it is a good custom Custom because it is for the preservation of the Peace of the City and it is the custom of the City to whip a Whoremonger and to Cart a Whore and this may be the ground or reason why an action lies in London for calling of a woman whore there thought it doe not lie in other places Trin. 1650. Banc. sup VPon an Issue joyned and a Tryal thereupon That Iudgement might not be entred a Verdict was found for the Plaintif and the Postea was delivered to the Clark of the judgements to enter the judgement but through the Clarks neglect execution was taken out the Iudgement being not entred upon this the Court was moved that the Iudgement might not be entred Iudgement because it should have béen entred before Execution issued forth and therefore it was suggested that now it was too late and prayed to supersede the Execution Supersedeas because there was no judgement to warrant it But Roll the Chief Iustice answered that this being but a neglect of the Clark judgement might be well enough entred though the Execution were issued forth and because the tryal betwéen the parties is right therefore let it be entred Cane against Pell Trin. 1650. Banc. sup CAne brought an Action of Debt upon the Statute of 2 Ed. 6. for substraction of tithes against Pell and hath a verdict against the Defendant Arrest of Iudgement in an action upon the Statute for tithes The Defendant moved in Arrest of Iudgement and took an Exception to the Plaintifs Declaration That it did not appear by it in what Parish the lands lie out of which the tithes grew due On the other side it was said 〈◊〉 appeared well enough by implication but if it did not it is not now material there being a
in Colton and by this demand the Kind of the Tithes demanded is not made certain for the word garba admits of divers constructions and so Lynwood the Civilian shews 3ly It is not expressed whether the Defendant be terr-Tenant or heir 4ly The demaund is ac etiam de rectoria de Acerstall Malvis which is incertain for it ought to be de rectoria ecclesiae Roll chief Iustice to the 1. Exception said Miscontinuance that the appearance of the party will help miscontinuance of proces and so it doth here Hales to the 2d exception said that decimae garbarum is certain enough to common understanding To the 3d. Exception he held it not necessary to say de rectoria ecclesiae for it must be so necessarily intended The Court desired to see books and so it was adjourned At another day the case was again moved and these spoken to and answered 1. As before that decimae garbarum is certain enough so common intendment 2ly That it is not necessary to expresse the setting forth of the dowr in the tithes by metes and bounds for tithes cannot be so set forth and it is not constant to use the expression per metas et bundas Latch took another exception that it was improperly expressed for one to enter into an Advowson And to the exception formerly taken he held that the Proclamation of summons ought to have been returned and that fault is not helped by the late Act because it is matter of substance and not meer matter of form and he said that appearance of the party doth salve a discontinuance of mean processes but not of originall processe as this is which is the very foundation of the Action and that though the want of a summons be helped by the partyes appearance yet the want of returning the summons is not helped by the partyes appearance Next he held as formerly that decimae garbarum is incertain and that the nature of the corn ought to be shewed Roll chief Iustice said Return that the not returning the proclamation of summons is not material for the summons is only to make the party appear and he hath appeared in this case and the late Act extends to it if it were not good without it And the demand of tertiam partem garbarum is certain enough by common intendment but it seems more certain here than so for it is tertiam partem garbarum granorum which signifies corn And it is not necessary to express the setting forth of the dowr per metas et bundas but it is well as it is without that expression And lastly It is well enough said ingressus est into the advowson although it be not so proper an expression as might have been used for it is good enough to make the party tenant Ierman Iustice to the same effect and said that if there be two Tenants in Common and one of them dye it is a great question how the wife shall be endowed viz. whether per metas bundas or no. And he doubted whether the Writ of error here brought were good or not for it is retornable coram custodibuâ— libertatis c. apud Westmonasterium whereas as it ought to be coram custodibus ubicunque for they are not fixed to Westminster Nicholas Iustice to the same effect Error Roll chief Iustice said it was a good exception that Ierman took to the Writ of error But the Court was here at Westminster at the return of the Writ and the Writ was made by the Custodes themselves and the partyes did appear upon it and therefore he questioned whether it might not be made good for these reasons Ierman Iustice held it could not Roll chief Iustice said that all the Latin presidents are agreeable to this Writ and it would be dangerous to alter them But let the cursitors attend Presidents and give their reasons why they do not alter this form and if the Writ be good me thinks the Iudgement should be affirmed Yet we will advise a little of the writ and whether the demand of decimam partem garbarum without granorum be good or not Postea Lumley against Nevil Mich. 1650. Banc. sup IN a writ of error brought upon a Judgement given in an ejectione firmae Error in an habere facias Possessionem It was said by Roll chief Iustice That if the writ of habere facias possessionem do contein more Acres of Land than are expressed in the Declaration that it is error But if the Sheriff do give possession of more Land than is conteined in the writ of habere facias possessionem an Action of the case lies against the Sheriff or an Assise lyes for the land It was also said that if a Iudgement be affirmed upon a writ of error in the Exchequer Chamber Error Case Assise Execution yet they cannot grant out execution there but it must be in this Court Hunt against Popham Mich. 1650. Banc. sup IT was moved for the Defendant to have the rule of Court for the Plaintiff to bring in the postea The court not to be moved for a rule where it may be given in the office Nonsuit that the Defendant may move in Arrest of Iudgement The Court answered they would make no rule for the Defendant may give rules in the office to force him to it and if he will not bring it in he is to be nonsuit Fairefax against Fairefax Mich. 1630. Banc. sup THe Case between Fairefax and Fairefax was moved again Whether a demand in down good or not and Hales held that the demand of dowr de decimis garbarum was certain enough though it be not garbarum granorum and he cited the Register 46. and Dyer f. 84. and one Cavendishes case 8. Iac. Roll chief Iustice took a difference between a demand of Tithes and the suing for a recompence for Tithes upon the Statute of 2 Ed. 6. and cited the Regist 165 and he held the demand here to be good with whom concurred the other Iudges Ask Iustice said that a garb is a french word and signifies any thing bound up into a bundle but by Cowell the Civilian it signifies Corn bound up and so is the word commonly used at the Common Law Demand Roll chief Iustice said that a demand in a praecipe ought to be more certain than it is necessary for a demand in dowr to be Latch said that the words coram nobis apud VVestmonasterium is part of the stile of the Court which Roll chief Iustice denyed yet he said it was well enough because the Court was there at the return of the writ of Error To which the other Iudges agreed and the rule was that the Iudgement should be affirmed nisi c. antea Mich. 1650. Banc. sup THe Court was moved that one was arrested upon a day of thanks-giving appointed by the Parliament Moved to discharge an arrest and that he was forced to put in bond
the power for it ariseth partly out of her interest and partly out of her Authority and both may well stand together and the Estate made out of both is a good Estate or if not the Estate may be intended to arise out of the power given her to make such an Estate and not out of her interest and the joyning of her daughter is not materiall though no good estate be derived from her and so he prayed Iudgement for the Defendant Roll chief Iustice It is usual in the West of England to make Estates for lives upon the old rent but it is not here expressed of what nature this manor is or whether it used to be let and here is no limitation to let for lives But here either the laster words are idle or else the Feme hath such a power that she may destroy the remainder And itsh all not be intended that he trusted his Executrix with more than he gave her and the words of the Will do not express that and the question is how it shall be interpreted The words may be interpreted Cumulative Interpretation otherwise the feme hath power to destroy the remainder which would be a hard construction To which Nicholas assented Roll chief Iustie The intention of the Testator is not cleer to give this power to the Feme but if it did appear to be his meaning it might be otherwise and here it is in a Will And the Verdict is not well drawn up for the Case might have been made better for all the land may be in Demesite for ought appears by the Verdict Adjourned to be argued again Postea VVebb against Wilmer Pasch 1651. Banc. sup Hill 1650. rot 309. VVEbb brought an Action of Debt for rent reserved by him upon a lease for years made to Wilmer Arrest of Iudgement in Debt for rent reserved upon a Lease for years and obtains a Verdict The Defendant moved in Arrest of Iudgement and alleged for cause that the Plaintif had abated his writ The case was this Webb leaseth certain lands to Wilmer for years reserving a rent with a clause of re-entry for not payment the rent being behind the Lessor brings an Action of Debt for the rent and pending the sute re-enters into the land and after the Lessee re-enters The question here was whether the writ once abated by the Plaintifs entry Reviver Abatement pending the writ were revived by the Defendants re-entry Roll chief Iustice held it was not Twisden argued that the writ is not abated but only abatable by plea and so this matter is not to be offered to stay the Iudgement 5 H. 7. f. 47. and he hath pleaded nothing in abatement but to the Action only and he said that it now being after a verdict it is helped by the Statute Hales on the other side said that it doth here appear that the Plaintif hath no cause of Action for he was in possession when he brought the Ejectment Roll answered If one declare having no cause of Action Declaration Departure if there be cause afterward it is well enough But here is a departure and the 1. Ejectment is not revived for it is purged by the re entry The rule was nil capiat per billam nisi The Custodes Libertatis c. against Hall Pasch 1651. Banc. sup HAll was endicted for forestalling of Butter Error to reverse a judgment upon an Endictment for forestalling and pleaded and had judgement given against him whereupon he brought his writ of Error and took these exceptions 1. That it doth not appear that the Endictment was at the Quarter Sessions as it ought to be by the Statute of 5 Ed. 6. for it is only said to be ad generalem Sessionem Roll chief Iustice answered if it be ad generalem Sessionem it may be intended the Quarter Sessions Intendment 2ly It was objected that there is no Capiatur awarded in the judgement as there ought to be The Court answered they would advise VVillis against Bond. Pasch 1651. Banc. sup Mich. 1650. rot 86. BOnd an Administrator brought an Action of Debt in Bristow against Willis upon an indebitatus assumpsit Error to reverse a judgement in debt and had a judgement The Defendant brought a writ of Error and took these Exceptions 1. That the Plaintif declares for a thing the conusance whereof lyes out of the jurisdiction of the Court Iurisdiction for it is for wages to be paid upon the performance of a Voyage to be made in locis transmarinis Roll chief lustice said this was a good Exception for they cannot enquire at Bristow whether the party hath performed his Voyage or not The 2d Exception was that the Plaintif declares that the Defendant was indebted to him in such a sum of money to render him an accompt The Court answered this is not good Accompt Debt for in such case an Action of accompt lies and not an indebitatus assumpsit And for these causes the Iudgement was reversed nisi and pronounced by Ierman Iustice at the prayer of the Plaintifs Counsel in English being the first that was pronounced so in this Court according to the late Act for proceedings in Law to be in English Quod nota Gowr against Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif Arrest of Iudgement in a Trover and Conversion Demand Trover in a Trover and Conversion brought by Baron and Feme for goods of the Feme dum ipsa sola suit The Exception was that it is not expressed that the goods were demanded by the Feme Roll chief Iustice said the Demand of the Feme is good to found the Action and it was then also said that a Trover and Conversion lies for goods found and converted although they come afterwards to the hands of the party that lost them The Rule was judicium nisi Pasch 1651. Banc. sup MEmorandum The first rule of this Court made in English was between White and Keblewhite Pasch 1651. Pease against Shrimpton Pasc 1651. Banc. sup Hill 24 Car. rot 191. THe Court was informed by Councel that the Habeas Corpus and Bail-piece were lost and therefore it was prayed that there might be a new Habeas Corpus and that the old Bail put in may be allowed by the rule of Court Roll chief Iustice answered make a new Habeas Corpus Habeas Corpus Bail and a new Bail-piece but first let Tutt the Attorney that was Clark of the Bails attend here to be examined whether the Habeas Corpus Bail-piece be lost as is suggested Ritch against Sanders Pasch 1651. Banc. sup Hill 1649. rot 758. RItch brought an Action of Trespass against Sanders for taking away his Corn set forth for tithes Special verdict in Trespass for tithes upon the words of a Will upon issue joyned a special Verdict was found whereupon the case fell out to be upon the construction of the
the judgement so in this Action Iudgement for by this course the Plaintif shall gain his possession of the land and the Defendant cannot bring his writ of Error until the writ of Enquiry returned and the Iudgement perfected Error which it may be will never be for when the Plaintif hath gotten possession of the lands he will little regard the damages Therefore let the judgement be reversed Antea Elyott against Blague Trin. 1651. Banc. sup ELyott brought an Action upon the Case against Blague for speaking these words of him viz. Thou art a Bastard getting Rogue Arrest of Iudgement in an Act on for words and hadst a Bastard at Oxford and art a pocky rogue and for ought I know thou hast filled my Bed full of the French pox and no such pocky rogues shall lie with me Vpon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words were not actionable because some of them were adjectively spoken and others uncertain and some of them clearly not actionable But Twisden answered that if the words were taken together as they were spoken they were very scandalous and actionable and cited one Colyers and Lydyers case 1 Can To which the Court agreed and ruled the Plaintif to take his judgement except better cause should be shewn Custodes against Iinkes Trin. 1651 Banc. sup SErjeant Bernard moved to discharge an Order of Sessions made against a Feme Covert to keep a Grand child of hers To discharge an Order of Sessions Order of Sessions because a Feme Covert was not bound by such an Order Roll chief Iustice answered that her Husband is bound to keep his wifes Grandchild by the Statute but in regard that the Husband is not charged by the Order but the wife who is covert is only charged Therefore let the Order be quashed Trotman against Standard Trin. 1651. Banc. sup Trin. 1650. rot 1768. IN an Action upon the case a special verdict was found Special verdict in an action on the case upon which the case fell out to be this Two being seised of lands in Fée did make a charter of feoffment unto two others and to their heirs and in the deed was a letter of Attorney to enter into the lands in the name of the seoffors and make livery and seisin according to the effect of the deed and livery of seisin was made to one of the Feoffees by the Attorney in the absence of the other Feoffee The question was whether here were a good livery and seisin or not 2ly Whether the letter of Attorney was good or no in regard it had false latin in it for the letter of Attorney was made by two and the words of it are pro me in nomine meo to make livery which are words of the singular number whereas they ought to be of the plurall Hales as to the 2d question held the letter of Attorney good enough because the authority given to the Attorney proceeds from both the Feoffors and therefore the words shall be intended to be the words of both of them as spoken by them severally And he also argued that the letter of Attorney was well executed to both the Feoffees because it was by deed and he cited 15 E. 4 f. 18. and he said if the livery had been made by the Feoffor himself it had been good without question and there is no difference between that and our case because it is made according to the effect of the deed and the Feoffee who is present is Attorney for the Feoffee that is absent to receive livery for him and the effect of the letter of Attorney is executed although the words are not Cooks Lit. f. 5. and Hoxon and Polts case in the Exchequer 34 Eliz. Boltons case Livery made to the husband was held a good Livery to the wife also Latch of Councel on the other side made two questions 1. Whether here was a good authority 2ly Whether it was well executed For the first he argued that here was no authority given to the Attorney to enter into the lands in the name of both the Feoffors for the words are that he should enter in nomine meo which cannot comprehend both of them the words being in the singular number and he agreed that Livery made by the Feoffor himself to one in the name of both had been good but here the livery is by Attorney and an Attorney hath nothing but a bare authority given him which ought to be strictly pursued especially it being to passe away an Estate He also took exceptions to the special verdict and said that the tryal upon which the verdict was found was directed out of the Chancery to discover a fraud and the verdict finds nothing according to the direction and so it ought to be set a side besides the verdict in it self is incertain for it is of 300 Acres of land generally which is incertain and so the Plaintiff can have no Iudgement for the Declaration warrants not the verdict for the Declaration mentions Houses and Cottages besides the 300 Acres of land 2ly The verdict doth not find the date of the Indenture and the Title to the land is to commence a die datus Hales answered 1. It shall be intended the day of the date 2ly It shall take effect after the delivery if there be no day of the date expressed And to that exception to the verdict that there are not so many Acres conteined in it as are expressed in the Declaration he answered that the Iudgement shall go to all which is land in kind only and shall not extend to Houses and Cottages and there appears to be a residuum or surplusage Verdict Roll chief Iustice said that it is incertain by the verdict what lands are meant for there are 400 Acres of land and four messuages and four Cottages and 40 Acres of medow in the Declaration and so there appears to be a residuum besides the land found in the verdict which makes it to be incertain what is found And though it should be a verdict for part and be uncertain for the rest although the Plaintiff will relinquish his damages for the rest this will not help it for there must be two Iudgements and the verdict is ill as to that which is found yet he held that it might be good without relinquishing the damages at all because the verdict is good for so many Acres as are in the Declaration and it shall be intended that the Iury mistook the number of the Acres and intended by the verdict no more than the arrable land Ierman and Nicholas Iustices doubted whether there be a verdict at all because the Iury have not found the things conteyned in the Declaration Roll chief Iustice and Nicholas mutate opinione held the verdict good but said it would have béen otherwise upon a demurrer and it was said that if one declare for 40 l. and the
a Legacie and it may be there are debts owing which are to be paid before Legacies and here doth not appear to be any assets in the Executors hands besides this debt and if the Testator would have released it he ought to have done it by a deed Roll chief Iustice What shall the Executor do in this case I conceive it is a strong case for the Executor and that it is very unreasonable that the Testator should make such a devise and here is no consent of Mary the Executor expressed to this release besides a will cannot release a thing created by deed and so discharge Creditors Nicholas and Ask Iustices concurred But Ierman Iustice doubted For a fault in the writ of Error and imperfection in the record certifyed the Iudgment was not then affirmed Afterward Sir Humphrey Style preferred his bill in Chancery to be releived herein and obteyned an injunction till hearing but upon a hearing at the Rolls could get no relief but was ordered to pay 100 l. or else the injunction to be dissolved Q. Nota. Hamond against Ward Trin. 1651. Banc. sup Pasc 1650. rot 58. AN Action of debt was brought against the Defendant Error to reverse a judgment in debt upon an insimul computaverunt upon an insimul Computaverunt and a verdict and a Iudgement given against him whereupon he brought his writ of Error and assigns for Error that the Action was brought against him for rent as a Tenant of land and not as a receiver and that therefore an accompt did not lye Roll chief Iustice cited 20 H. 6. that rent alone lyes not in accompt because rent is a certain thing and it is also in the realty but if rent be mixed with other things an accompt will lye Accompt but here it appears the Action is brought against the Defendant as a receiver and if one receive mony due to me upon an obligation I shall have either an Action of accompt Debt or an Action of debt against him so if he receive my rents without my consent Therefore let the Iudgement be affirmed Alleyn against Holden Trin. 1651. Banc. sup Entred Pasc 1650. AN Action of debt was brought against an Heir who pleads riens per discent Error to reverse a judgment in debt against an Heir Iudgment was given against him upon a nihil dicit a writ of enquiry was awarded without the prayer of the party and a special Iudgement thereupon given against the Defendant Vpon a writ of Error brought to reverse this Iudgement it was alleaged for Error that the Iudgement ought to have been a general Iudgement and there ought not to have been a writ of enquiry except the party had prayed it and to this the Court enclined and Roll chief Iustice said that it is otherwise in an Action against an Executor for there assets may be found At another day Roll chief Iustice said Writ of inquiry if the Heir plead riens per discent and if it be a false plea a general Iudgement ought to be against him and there shall be no writ to enquire what lands he hath and it is not necessary as here it is to have a special Iudgement Iudgement that the Plaintiff shall recover of the lands discended for the Iudgement ought to be that the Defendants body and goods be lyable and half his lands and not as it is here a writ to enquire and find what lands he hath by discent Reverset nisi Barcock against Tompson Trin. 1651. Banc. sup THis case was again spoken unto Error brought by the Bail to verse a judgment given against the principal which was this A Iudgement was given in the Comon pleas against the principal without an original upon this Iudgment there issued out a scire facias against the Bail two nichils returned and thereupon Iudgment was given against the Bail a writ of Error was brought by the Bail to reverse this Iudgment And it was now argued by Hales of Councel for the writ of Error that the Iudgment was erroneous because it being given upon a scire facias which is a judicial writ it ought to be grounded upon an original and it not being so here it is Error in fact although it be not Error in Law To this it was answered that two nichils returned upon a scire facias amount to a scire seci and a judgment given thereupon is good and therefore it is too late now to say that the scire facias was not well executed Brook Sc. fac 96. 28. 17 Car. C. B. To this Hales said there was a Iudgement against us in the Common pleas so that we could urge nothing against the scire facias there but here we may Roll chief Iustice answered it is to some purpose to make up the record upon the two nichils otherwise there would be no end of things and the Iudgement is well given by the Iudges and how can you now make Error in it Iudgement and if you be inconvenienced by the Iudgement you are not without remedy Error for you may bring an Audita querela and you might have pleaded to the scire facias nul tief record for it is not matter of fact And therefore shew better matter why the Iudgement shall not be affirmed Audita querela and take liberty to bring an Audita querela Antea Tucker against Cosh Trin. 1651 Banc. sup Entred Trin. 1650. rot 388. TVcker brought a replevin against Cosh Special verdict in a replevin for distreining his Cattel The Defendant makes conusance as Baily to I. S. and upon the Avowry the case fell out to be this A tradesman in consideration of mariage made a conveyance of his lands to the use of himself and of his wife and afterwards becomes a Banckrupt and a commission of Bankrupt is taken out against him and the lands of the Bankrupt are sold by the Commissioners to the avowant that took the distress The question here was whether this conveyance made by the Bankrupt of his lands was within the Statute of fraudulent conveyances or not and the sale made by the Commissioners of this land were good Maynard for the Plaintif argued that it is not within any of the Statutes of Bankrupts The Déed here is without fraud and so it is not within the Statute for a valuable consideration is only expressed in the Statute and not a conveyance upon consideration of mariage as it was in our case 2ly The Feme is but one person with her Husband 3ly By comparing the Statutes together it appears that the wife is not comprised within the Statute of 1 Iacobi which looks back to other Statutes touching Bankrupts for the wife is not named in the Statute of 1 Iacobi but only children and other persons otherwise the words of the Act which do enumerate children and other persons would be frivolous and idle Roll chief Iustice said the Case is of great consequence and
willingly kept a Bawdy house and then he is not punishable Pepes on the other side held the words to be actionable and cited Hill 3 Car. Elsey and Harisons case thou art a whore and a Bawd to thy daughter and keeps a Bawdy house which words were adjudged actionable 24 H. 6.14.38 39. Eliz. In the Lady Barkleys case the keeping of a Bawdy house is an offence punishable at the Common Law and therefore the words spoken are actionable Case Roll chief Iustice To call one whore in London is Actionable And the words here are actionable for the keeping of a Bawdy house is a crime punishable at the Common Law for the party may be endicted for it and it shall be intended to be a common Bawdy house although it be not so expressed Endictment and the Plaintiff is scandalised by the speaking of the words Ierman Nicholas and Ask Iustices were of the same opinion Iudgementt was given for the Plaintiff nisi Snelgrave and Bosvile Pasc 1652. Banc. sup Mich. 1651. rot 200. BOsvile brought an Action of debt against Snelgrave Debt against an heir upon an obligation as Heir unto his Father upon an Obligation entred into by him unto the Plaintiff the Defendant pleads riens per discent jour del bref the Plaintiff replyes that he had lands by descent and upon this an issue is joyned and the Iury find he had lands by descent and name them particularly and upon this a Iudgement is given for the Plaintiff in the Common pleas that he shall recover his debt of the lands descended upon this Iudg ment a writ of Error was brought here and the Error assigned was that the Iudgement ought to have been given generally against the Defendant and not particularly of the lands descended 2ly the Iury ought not to have found what lands particularly the Heir had by descent but generally that he had lands by descent because the issue is general whether he had lands by descent or not and therefore the Iudgement given upon this ill verdict is not good Roll chief Iustice The Iudgement is unwarrantable for the verdict is against the issue joyned Iudgement Verdict and the Iudgement here ought to have been generall of all the lands and goods and against the person of the Heir for his false plea and not particular to recover of certain lands as it is here for this is not so good a Iudgement for the Plaintiff as the general Iudgement is and this Iudgement may be against the Plaintiffs mind Error for any thing doth appear to the contrary and a like Iudgement was reversed in Alleâ—n and Holdens case in this Court Ierman Nicholas and Ask of the same opinion And thereupon the Iudgement was reversed Floyd against Morgan Pasc 1652. Banc. sup A Writ of Error was brought to reverse a Iudgement in an Action of Trespasse for taking away of certain Houshold stuff Error to reverse a judgment a trespasse for taxing away of of goods and the Error assigned was that the Declaration was incertain for that it wanted latin words to expresse the things for which the Action was brought for the Declaration is for the taking away of quoddam instrumentum ferri Anglice a gridiron et quoddam instrumentum ferri Anglice a morter et quaedam instrumenta ferri Anglice brandirons which are words utterly incertain for the generality of them what they may signifie Roll chief Iustice My Iudgement is that the Iudgement is erroneous for we must not take meanings because we are bound up to proceed by the rules of the Law and Statutes and we are to consider here whether there be Latin words in the Declaration as there ought to be to expresse the things for which the Action is brought and certainly this word quoddam instrumentum ferri is too general to expresse any thing and the Anglice added to it will not help it for if the word precedent in it self be not fit Latin to expresse the thing the Anglice subsequent is litle to be regarded Anglice Declaration and these words being incertain the Declaration must be incertain and so the Defendant cannot know what to answer to it or how to defend himself as he ought to do which may prove very prejudicial to him Ierman Iustice Issue The issue cannot be certain if the Declaration be incertain and by the Common Law and Statute Law our pleadings must be Latin and where there are not elegant Latin words to expresse things we may use those which they call barbarous words if they be known for use makes a language and where there are no Latin words we may coyn words and add an Anglice to them and here the Declaration is as incertain also for the number of the things as for the nature of them for here is quaedam instrumenta ferri which may signifie any number be it more or lesse Nicholas and Ask ad idem And so the Iudgement was reversed nisi Antea Brian against Twite Pasc 1652. Banc. sup AN Action upon the Case was brought for speaking these words of the Plaintiff Arrest of Iudgement in an Action for words you are a whore and have plaid the whore with so many men you cannot number them upon not guilty pleaded and a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable for the saying the party had plaid the whore are words incertain and do not enforce any Act of whoredom to be done by her but Ierman Iustice gave Iudgement for the Plaintiff for he said the words should be construed to a common intendment THe Court was moved for Iudgement upon a verdict given 2 years since Motion for Iudgement denyed and the cause stayed till now by the Committee of indempnity but it was denyed because it was the last day of the Term. Nota. Pasc 1652. Banc. sup IT was shewed for cause why a certiorari should not be granted to remove an indictment of battery Certiorari to remove an endictment against an Attorney of his Court preferred at a Sessions of the peace in the Country that the bill was found there and the party hath entred into a recognisance there to go to a tryal the next Sessions Roll chief Iustice The recognisance may be also removed by the certiorari and what hurt can it be if the endictment be removed and the tryal had at the assises and if it be removed hither we will not quash the endictment but the party shall plead and carry it down and try it at the next assises at his own charge Byron against Stonehowse Pasch 1652. Banc. sup Trin. 1651. rot 1658. A Writ of Error was brought to reverse a Iudgement given in a writ of dower in the Common Pleas Error to reverse a judgment in dower in the common pleas the Errors assigned were that the Iudges of the Common Pleas had set a side the verdict given by default by the Iudge of
knowledge of the matter may try it although it may be tryed in another place but if the tryal be ill the Verdict will not help it but there must be a new tryal Therefore it were good to replead as to the place Mich. 1652. Banc. sup ONe took out a Latitat out of this Court and arrests the party Attachment for abusing the processe of the Court. and refuseth to take Bail of him but carryed him into another liberty to charge him with an Action there Vpon this the Court was moved for an Attachment for abusing the processe of this Court And it was granted nisi c. Mich. 1652. Banc. sup IN a tryal at the Bar between â—heesman and Turner and others in Trespass and Ejectment Roll chief Iustice said Where ne unques Executor is a good Plea Revocation Reviver That if there be divers Executors of one Will and one of them refuse to prove the Wil he may plead ne unques Executor And that a Will in writing may be revoked by parol and revived again by parol Theoball and Conquest Mich. 1652. Banc. sup Trin. 1652. rot 1999. AFter a Verdict in an Action of Trespass and Ejectment it was moved in Arrest of judgement that the Lease was altered after pleading Arrest of Iudgement in Trespass and Ejectment On the other side it was moved for judgement 1. Because the Lease was only amended in matter of form and not in substance 2ly Because by the rule of Court the Defendant is to confesse the Lease and so it is not material whether the Lease be good or no. But Roll chief Iustice answered that the Lease was amended in matter of substance and if the Lease be defective we can give no judgement Amendment Iudgement Confession and by your own shewing it is not good and the rule of the Court doth not bind the Defendant to confesse the Lease otherwise than you have made it and therefore let the judgement be stayed Fowke and Boyle Mich 1652. Banc. sup Trin. 1652. rot 460. THe Plaintif brought an Action upon the Case for selling unto him false Bills of publique faith to the value of 800 l. knowing them to be false Demurrer to a Declaration in Action upon the case with an intent to deceive him The Defendant demurs upon the Declaration And Babington of the Inner Temple offered these Exceptions to it 1. That the Ordinance of Parliament for the bringing in of money plate into Guild hall and giving the Commissioners authority to give these bills to them that brought it in for re-payment thereof with interest at 8 l. per centum per â—â—num was mis-recited for it is said that the Ordinance was made by both Houses of Parliament whereas it should be by the Lords and Commons in Parliament for the Houses are the places where they sit and can make no Ordinances and he cited Mich. 13 Car. Tydalls case 2. The Aldermen that are the Commissioners are not called by their Christian names as they ought to be but only by their Sirnames 3ly It is not shewed in what manner the Bills were assigned to him but he says only that they were assigned in due form of Law which is too generally expressed and to this he cited Mich. 10 Iac. Banc. Reg. Glass and Gowes case To these exceptions Latch answered That the mentioning of the Ordinance of Parl. and of the Aldermen is but by way of inducement to the Action and nothing to the ground of it and therefore there need not be so punctual a recital as is surmised neither is it necessary to shew how the Bills were assigned and they are the Defendants own words nor is it material how the money was to be paid Râ—â— chief Iustice The ground of the Action is the deceit in assigning over false Bills and affirming them to be true Inditement Confession and the other matters are meerly matters of inducement and used only by way of recital and not material to the Action And you have confessed the deceit for which the Action is brought by your general demurrer upon the Declaration And therefore let judgement be for the Plaintif except better matter be shewn Postea Wood against Holland Mich. 1652. Banc. sup Trin. 1652. rot 1061. VVOod brought an Action of Trespass and Ejectment against Holland Demurrer to a Replication in Trespass and Ejectment The Defendant pleads that the Plaintif did disseise I. S. of the Land and then made a lease of it to him and that afterwards the land did descend to the Plaintiff The Plaintiff replyes that he was seised of the lands and traversed the disseisin supposed to be made to I. S. And to this the Defendant demurs add for cause shews that he ought to have traversed the descent and not the disseisin But Roll chief Iustice said That the traversing of the disseisin makes an end of all and therefore it is well taken as being the most material matter Traverse Se sin Descent although that the descent might have well enough been traversed And therefore let the Plaintif have Iudgement nisi Reckwitch and Moyle Mich. 1652. Banc. sup Trin. 1650. rot 503. A Writ of Error was brought to reverse a judgement given in an Inferiour Court A Writ of Error to reverse a judgement given in an inf riour Court and the Writ of Error was to remove a Record quod coram vobis residet de placito in Curia manerii de Cuttingbye whereas the Record was de placito in Curia Custodum libertatis Anglae authoritate Parliamenti de Cuttingbye And therefore against the writ of Error it was objected that there was a variance between the writ of Error and the Record and therefore that the writ of Error was not good But against this was cited Lodge and Goodales Case in this Court 23 Car. that it is not necessary to recite in a writ of Error all the words 〈◊〉 the description of a Court and here the writ is not to remove a Record out of an inferiour Court but the writ of Error is to reverse a judgement in a Record quod coram vobis residet Hales answered That here is a right description of the Court in regard of the place where it was held and of the Iudge of it but not in regard of the Lord of it and therefore he conceived it a material objection because a part of the stile of the Court is mistaken not only an additional description of it Roll chief Iustice answered Variance If it be but an additional addition or description it is well enough as it is but we will see what hath been done in like Cases heretofore but me thinks that it shall be intended here to be Curia Custod libertatis Angl. c. for here it is in a Writ of Error which will not lie if it be not a Court of Record But Nicholas and Ask Iustices said It cannot be intended a Court of Record but a Court Baron
expressed by them And how can we take notice here that there was not fair play in the running of the race and I doubt of the books cited by Latch Bar. Auditors Accompt for where matter may be pleaded in Bar the party shall not be compelled to come before Auditors for that were unreasonable If I deliver goods to deliver over and the party do it not he is accomptable to me but if he deliver them over he is not for he may plead this in bar of the Action and so is it in the Case at the Bar and you might have given the special matter in evidence here by the meal Act Plea and this plea here before the Auditors is cleerly void The main doubt here is whether there be apparent matter to the Court to hinder the Plaintiff from his Iudgement I conceive the Articles shall be interpreted fairly and that there ought not to be fowl play according to Common intendment and it is material to shew there was fowl play in the replication and so the issue is well joyned and Iudgement ought to be for the Plaintiff Ierman and Nicholas Iustices to the same purpose as Roll. Mich. 1652. Banc. sup IT was moved for Coronel Baxter that he was elected high Steward of the Town of Colchester in Essex Motion for a mandamus to Colchester to swear the high Steward there and therefore that the Court would grant a mandamus to be directed to the Maior there to swear him in that place Roll chief Iustice If he be duely elected and he refuse to swear him take a mandamus Iaques Mich. 1652. Banc. sup IN the case of one Iaques in an Action of Trespass quare vi et armis What plea amounts to not guilty for the entring into his Land It was said by Roll chief Iustice That if in an Action of Trespass vi armis for entring into land the Defendant plead his entry by virtue of a lease for years this amounts to no more than not guilty and the Plaintiff may demur upon the Plea Demurrer◠and shew it for cause of demurrer that it amounts to no more Mich. 1652. Banc. sup IN the case of one Poynes Mawrice it was said Where one cannot be declared against in Custodia that if one be committed to the upper Bench prison for a misdemenour and not for debt one cannot declare against him as against one in Custodia Mich. 1652. Banc. sup THe Court was moved on the behalf of the Defendant Motion for a certiorari to remove endictments for a certiorari to remove certain endictments preferred against him in London for selling of leather to the end he may have an indifferent tryall notwithstanding the Statute which directs that the endictment be preferred in the County were the offence was committed Roll chief Iustice The Statute was made for the ease of the Defendant and therefore he may remove the endictment otherwise he shall be in worse case than he was before the Statute Therefore take a Certiorari Yongue and Petit. Mich. 1652. Banc. sup Pasc 1652. rot 159. YOngue brought an Action of debt against Petit upon an Obligation and declares Demurrer to a replication in debt upon a Bond. that whereas at the request of the Defendant he did become bound with a third person for the payment of a certain sum of mony unto I. S. at a certain day the Defendant became bound in an Obligation to the Plaintiff the condition of which Obligation was that if the Defendant did pay the mony unto I. S. at the day limitted for which the Plaintiff was bound and in the mean time should save him harmlesse that then the Obligation should be void and for not performing this condition he brought his Action The Defendant pleads that he caused the party with whom the Plaintiff was bound to submit himself to Prison and that the Plaintiff was not damnyfied The Plaintiff replyes and denyes not the Bar but sayes that a latitat was sued out against him and that he feared to be arrested and upon this replication the Defendant demurs and these exceptions were taken to it 1. That he doth not say he took out a latitat prout patet per recordum 2ly It was questioned how the words in the mean time shall be understood For the first exception Latch held it not material Relation and for the second he held that they refer to the whole condition Roll chief Iustice said it is not necessary here to plead non damnificatus if the party be in prison and the words in the mean time refer to the last words only of the condition But one hath pleaded an ill plea and the other hath alleaged an ill breach therefore nil capiat per billam nisi Yet we will advise Mich. 1652. Banc. sup AN endictment was quashed for not repairing a highway Endictment quashed because it did not set forth from what place to what place the way did lead The Maior and Commonalty of London against Hatton Mich. 1652. Banc. sup THe Maior and Commonalty of London brought an Action of Covenant against Hatton Demurrer to a Plea in Covenant for not paying a rent reserved by them upon a lease for years made unto him of the Garblers office The Defendant pleaded that this office was an office of trust reposed in the City of London and could not be let for years and consequently there was no ground of Action To this plea the Plaintiff demurs Hales held that this office may be let for years because the Maior and Commonalty of London have a Fée simple in the office by their charter and that they have not only a meer trust reposed in them to execute it And 2ly If it could not be granted yet here is no forfeiture for this lease shall be accompted but a deputation and not a granting over of the office And 3ly The Lessees covenant shall bar him from pleading this plea. Wadham Windham prayed a day to be heard Roll chief Iustice It will be hard for you to maintain the Defendants plea Deputation Lease For without doubt the Maior may make a Deputy to execute this office But here he hath a Fée simple in it and may thereby make a lease of it and the Lessees Covenant will bind him to pay the rent Iudicium pro querente nisi At another day Wadham Windham put the Case and argued that the office of Garbler is not grantable because that this office is an office of trust reposed in a corporation and it is so reposed for the publique good and the office it self is not vested in the Maior and therefore he cannot grant it although he may make a Deputie to execute it for there the Acts of the Deputie do light upon the Master to be answerable for 29 H. 6 44. Dyer 238. a Maior of a Town may make a Deputie but he cannot grant this office or make a revenue of it Roll chief Iustice
too generally expressed and cannot be levyed equally by such a tax 5ly The Plea sets not forth that there was any notice given to Whitley of the tax made before the distresse taken as there ought to have been and for these reasons he concluded that the Plea was not good Bacon Iustice held first Waiver that the Party had waived his benefit of the Plea given him by the Statute by pleading specially and he ought to make good his plea as he hath pleaded it at his own perill He held likewise that there ought to be notice given of the tax and a demand of it before any distresse might be taken and that the Plea was defective in this 3ly Notice That he cannot sell a strangers goods for the tax as Whitley is for ought that appears in the Plea 4ly Demand By the Plea it appears that he hath distrayned one Acre of Land for all the tax which ought not to be and upon these exceptions the rule was for the Defendant to shew cause before the end of the Term why the Plaintiff should not have Iudgement Sr Maurice Abbot Pasc 23 Car. Banc. reg SIr Maurice Abbot had a Iudgement against one and dies Motion to Vacate a Iudgement and three years after Execution is taken out in his name upon the Iudgement the Court was moved to vacate this Iudgement but would not for they said that there was no help in this case but by bringing a writ of Error ☞ Error except there can be any fraud proved in the proceeddings and then the Court will take order to help the Party grieved Fraud And thereupon ruled to examine the Attorney and the Partyes whether there was due proceedings or no. Vill de Charleton in Kent Pasc 23 Car. Banc. reg A Man was killed at Charleton in Kent Motion to quash a presentment and take off Amercements upon which the Coroner takes an inquest and returns it into the Crown Office upon this a presentment was drawn up in the Crown Office against the Vill. of Charleton and found and thereupon issues went out against the Vill It was moved for the Vill to have them discharged by reason that the presentment was not good for it was grounded upon the Statute of 3 H. 7. chap. and sets forth that such a person was killed at Charleton and that the murderer fled away in the night by which it appears that the Vill. is not lyable to be amerced within the Statute for the murtherer ought to escape in the day by the Statute Amercements and not in the night and for this it was quashed and the Amercements discharged 23 Car. Banc. reg THe Court was moved to quash an order of sessions For quashing an order of the Sessions of Peace for keeping a Bastaâ—d made for the keeping of a Bastard Child and these exceptions were taken to the order First the order was that the Party should pay a weekly sum for the keeping of the Child whereas no such order could be made without the Parties consent for by the Statute he is only compellable to secure the Parish where the Child was born that it should not be any charge to the Parish Another exception was that it appears not that the Iustices had any power to make any order at all in the case for it appears not where the Child was born and so it may be it was born in an other County where these Iustices have no authority to Act any thing concerning it Vpon these exceptions it was quashed THe Court was moved for a certiorari to the Court of Sandwitch For a certicratio to remove Endictments out of one of the Ciâ—que-ports to remove four Endictments there for shooting in a Gun and pulling up of a post because the facts for which the Party was Endicted were not done within the Iurisdiction of the Court But because Sandwitch was one of the Cinque-ports and it had been a question heretofore whether this Court could send such a writ thither The rule was only for cause to be shewn why a certiorari should not be granted Tory. Pasc 23 Car. Banc. Reg. TOry brings an Action of Trespass and false imprisonment against I. S. simul cum aliis c. The Defendant pleads not guilty Arrest of Iudgement in an Action of Trespasse and a Verdict is given against him for the Plaintiff It was moved in Arrest of Iudgement that the declaration was not good because it declares against I. S. by name solely and it ought to have been joyntly against him with the others naming them also because the trespass was joynt and not against I. S. alone but the Court held that the declaration was good because it was with a simul cum although the Persons were not named Declaration and said that this was the constant course of the Common Pleas And that an ejectione firmae against one simul cum had been ruled to be good Ejectio ne â—â—mae and so used in the Common Pleas although heretofore it hath been adjudged to the contrary yet the Iudgement was stayed till the other should move Jones against Young Pasc 23 Car. Banc. Reg. Hill 22 Car. rot 1857. IOnes brings an Action of Assault and Battery against Young Young justifies as servant to I. S. because Error to reverse a Iudgment against the Plaintiff in Trespasse that Jones came to fish in the several Piscary of his Master Iudgement was given for the Defendant A writ of Error was brought and two exceptions taken 1. That whereas Young had in his Plâ—a of Iustification entitled his Master to the several Piscary by the Kings Letters Patents he had not shewn that the King was seised of this several Piscary jure Coronae and so it might be the King had no power to grant it 2ly He doth not shew his Letters Patents which he ought to do because he derives a title by them Title The rule was to shew cause Saturday next why the Iudgement should not be reversed The Earl of Lecester against Mrs. Samford Pasc 23. Banc. Reg. IN a Trover and Conversion brought by the Earl of Lecester against Mrs. Samford for certain Iewels the Trover being laid to be in Kent but the Offring the goods to sell being the Conversion of them being in London It was doubted where the tryal should be and the Court sayed that generally a transitory Action is to be laid where the fact was done Venire yet the Party is not tyed to lay it there but may lay it in another County and in this case it was held by the Court that the Plaintiff may bring his Action where the Iewels were sold and that was in London as well as in Kent where the Trover was laid Trover for part of the ground of the Action to wit the Conversion was in London though part of it namely the Trover was laid to be in Kent Basely and Baseley Pasc 23
here for the first words Iudgement and not for the second the Damages being severall but if the Damages had been intire there if Iudgement could not be given for both the words it cannot be given at all Bacon Iustice much to the same purpose as Rolle and said that the first words shall be meant that he added words of his own invention without any instruction of the party for oftentimes dubious words shall be taken in the worse sense upon consideration of the Circumstances that accompany them and he was also of opinion that the second words were actionable and are as scandalous as the former Iudgement was given for the former words and for the latter the Court would advise Barrett 23 Car. Banc. Reg. AN Action of Trespasse was brought for digging in his land Arrest of Iudgement in Trespass and carrying away a certain number of loads of earth and a Verdict was for the Plaintiff It was moved in arrest of Iudgement that the declaration was incertain for the Trespasse is laid to be done in land lying in divers Towns 2ly It is not shewed what kind of soil the earth was that was caryed away but both the exceptions were over-ruled and Iudgement ruled to be entred nisi causa c. Conisby and Fairfax Pasc 23 Car. Banc. Reg. A Iudgement was given in an Action of Trespass in the Court of Owse-bridge in York Error to reverse a Iudgement in Trespasse a writ of Error was brought in this court to reverse the Iudgement many exceptions not material at all were taken and many others that were helped by the Verdict but the three chief Exceptions were 1. The Damages were declared to be ad valentiam quingint librar instead of quingent for there is no such word as quingint to express any number for if it be meant to express Fifty it ought to be quinquagint but quingent signifies 500. 2ly The Venire was directed Balivis de Wapentagio whereas there is no such word for the word to express a Wapentake is Wapentachium so that it ought to be de Wapentachio and not Wapentagio 3ly The Venire is Venire Venire facias de baliva and sayes not what Baliwick which is uncertain and it cannot be known whither it extends and upon these Exceptions the Iudgement was ruled to be reversed except better matter shewn Saturday following Pasc 23 Car. Banc Reg. VPon a motion for quashing an Endictmet against a Baker For quashing an Endictment for using the Trade of a Baker these Exceptions were taken 1. He is indicted for using facultatem pistoris and doth not say panis humani 2ly It is for baking panis tritici Anglice Houshold bread whereas it signifies only bread made of Wheat and not Houshold bread for that may be made of other corn 3ly For baking panis Assis without a dash for panis Assisae Vpon these Exceptions it was quashed Pasc 23 Car. Banc. Reg. VPon a motion for quashing an Endictment against one for apprehending I S. unprisoning him For quashing an Endictment for aresting and imprisoning one these Exceptions were taken to it 1. It sayes that he apprehended imprisoned the party without a Warrant whereas it ought to have been absque aliqua rationabili causa for in some Cases a man may be apprehended and imprisoned without a Warrant but in no Case without a reasonable cause 2ly The Endictment is that he did not shew him the cause why he apprehended and imprisoned the party and that he is not bound to do and yet the party may be lawfully imprisoned 3ly The Endictment doth not say that he apprehended and imprisoned the party falsely as it ought to have done Vpon these Exceptions it was quashed Drake and VVhitacre 23 Car. Banc. Reg. Hil. 22 Car. Rot. 1318. AN Action upon the Case was brought Arest of Iudgment in an Action upon the Case for words and a Verdict found for the Plaintiff for these words Margaret Whitacre viz. meaning the Plaintiff did steal my Wood and I will send her to Bridewell It was moved in arrest of Iudgement that the words were not actionable for doubtfull words as these are ought to be taken in mitiori sensu and Wood here may be understood standing Wood and not Wood cut down and so it could not be Theft but a Trespass on the other side it was answered that Wood shall here be understood Wood cut down and not standing and being coupled with the words Margaret VVhitacre is a Thief which are scandalous words they shall be interpreted equally scandalous Ayre Higgins his Case was cited to prove it where it was adjudged that these words He is a thief and hath stollen my Corn shall be understood of Corn cut down and not standing and therefore are actionable Roll Justice said it was a strong Case that the action will lye Case Notwithstanding Iudgement was arested till the other should move This was again moved Trin. 23 Car. and the Court held that the first words alone were actionable but whether coupled with the other they were actionable the Court was divided viz. Bacon a gain the Action and Rolls for it Pasc 23 Car. Banc. Reg IN an Action of Trover and Conversion and a verdict for the Plaintiff Arest of Iudgment in Trover and Conversion it was moved in arrest of Iudgement that the Plaintiff did declare for Books for Stockings found converted and doth not shew what Books viz. whether English or Latine or what other Language nor whether Law books Divinity Physick or of any other Subject and because he doth not declare what sort of Stockings they were whether wollen wosted or silk c. But the Court over-ruled the Exceptions and said that Books were not things of divers species Species be they of what Language or subject they may be of neither the Stockings for were they silk or wollen or wosted they were but Stockings and so ruled Iudgement to be entred The King and Place Pasc 23 car B. R. PLace was endicted before the Lord Finch and Iustice Crawley for speaking words against the Queen Mother of France Error upon a Iudgement given upon an Endictment for words the words were these The Queen Mother is the Whore of Babylon she is a Whore and hath had a Bastard upon this Endictment jugement was given against the Defendant A Writ of Error was brought in this Court to reverse the iudgement The Errors assigned were 1. That the proceedings upon this Endictment were too speedy and so illegal for the whole proceedings upon it were acted in one day 2ly The Endictment lyes not for it is founded upon the Statute of Scandalum magnatum Scandalum magnatum and here can be no such great Scandal for that is for words spoken of a Peer of the Realm and the Queen Mother is not so 3ly There is no Capiatur upon the Roll as it ought to have been the Defendant being not in Prison at
the mony is not paid a Iudgement is obtained against White for the mony White makes his will and makes his Heir at law his Executor and dyes leaving lands to descend White as Heir brings a Writ of Error to reverse this Iudgement It was argued by the Councell of the Plaintiff in the Writ of Error that the Writ did lye because although the Action in the former Iudgement was but a personal Action yet in this Case the Land of the Heir may be charged by the Iudgement Heir Elegit for an elegit may be thereupon taken out to charge â—is Lands and therefore the Iudgement concerns him as Heir as well as Executor and therefore it is reason he should bring a Writ of Error to reverse the Iudgement because he may be prejudiced by it Executor And a Case in Trin. 29 Eliz. rot 631. Banc. Reg. was cited that the Heir is pridy to the Iudgement and therefore shall have a Writ of Error Error and he is not meerly terr-Tenant 13 E. 4.2 Roll Iustice the terr-Tenant sole shall not have a Writ of Error upon an extent Error And in the Case at the barr the Heir is not privy to the Iudgement and the extent is only upon him as terr-Tenant and he is not made privy to the Iudgement by the extent but after Execution he may have a Writ of Error and he said Bail the Bail cannot bring a Writ of Error upon the Iudgement given against the Principal and the same reason is here and it will be very hard to maintain this Writ of Error Adjourned to the next term Terry and Baxter Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 394. TErry brings an Action of Debt upon an Assumpsit against Baxter Demurrer upon an Dclaration in Assumpsit to stand to an award to stand to an Award The Defendant pleads nul arbitrement the Plaintiff sets forth the award and assigns a breach The Defendant demurs and for cause shews that part of the award was to pay 5 l. to the poor of the Parish of D. which was not within the submission and so the award was not good Rolle Iustice answered if the award be void to the 5 l. Award good in part i a good award awarded to be paid to the poor yet it is good to the rest for it is perfect as to the ending of all differences between them which are submitted and therefore shew cause on Monday next why judgement should not be given for the Plaintiff Morefield and VVebb Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 50. VVEbb brings an Action upon the Case against Morefield in the palace Court at Westminster Error to reverse a Iudgement in an Action upon the Case and hath a Iudgement Morefield brings a Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. It is not shewed in the Declaration that the cause of Action was infra jurisdictionem palatii But Rolle Iustice answered Iurisdiction that it was shewed to be infra jurisdictionem Curiae and that was good enough for the Court is alleged to be held by Letters patents Retorn A 2d Exception was that there was not fifteen dayes for the retorn of the Venire facias as there ought to be But to this Rolle Iustice also answered that the Court is held by Letters patents and therefore it may be retornable within fifteen dayes though by the usual course of the Common law it cannot And therefore ordered the Plaintiff in the Writ of Error to shew better matter otherwise Iudgement should be affirmed against him The King and Holland Trin. 23 Car. Banc. Reg. THe Case between the King and Holland was moved again For quashing an inquisition for the King Inquisition and the Councell against the King moved that the inquisition found for the King to entitle him to the use of the Copyhold might be quashed because the King cannot be intitled to such a use because it is a thing in privity only and cited the Statute of 27 H. 8. of uses Vse and Cooks 1. rep 123 and said that the King cannot be intitled ot Copyhold lands of an Alien much lesse to the use of Copyhold lands Copyhold King VVrong Protection Trust if he should 1. The Lord would be wronged which the King ought not to do but to protect his subjects for the protection of the subject is not only matter of honour to the King but also of trust in the Crown 2ly A stranger is wronged by it 3ly The Copyholder of the Manor cannot have remedy for the injury done him Sute for he ought to sue in the Lords Court and not else where and here he cannot do it and the rule in law is de minimis non curat lex and it is much lesse for the honnour of the King to have a Copyhold estate Honour which is a base tenure But it may be objected that if the King shall not have this use he shall be in a worse condition than a subject To this it is answered that he shall be so in cases which touch his royalty and may be a disparagement to him Copyhold which indeed doth not make him in a worse condition though it may seem so but it is more for his honor and a Copyhold is an estate at the will of the Lord and ought to be protected by the Lord and the King cannot be Tenant at will to any Alien Trust and therefore cannot have a Copyhold estate and an Alien is not capable of a trust because it is a thing in Action which an Alien cannot have and therefore he cannot derive it from him Twisden for the King in his Argument considered 1. Whether the King can have a use at the Common law which is for an Alien 2. Whether a trust differs from a use for the first he said that an Alien may purchase lands Alien Praerogative and a use at the Common law but he cannot retain them therefore the King shall have them by his Praerogative and a use is not a thing in privity but is an Antient inheritance at the Common law 2ly There is no confidence annexed to cestui que use or to the Feoffor but may be disposed of 3ly Things privity in Action may be given to the King Privity and a use is an inheritance in the nature of a Chattell 4ly A use is grantable over Privity and therefore may be given to the King and the meaning of the word lost in the Statute is to be intended that it may be lost for the difficulty of finding such subtile conveyances and not that the right was really lost Trust And for a trust it is but a new name given to a use and invented to Defraud the Statute of uses and a trust of a Copyhold is all one with another trust for it is the taking of the profits of the land and not the Estate in
to alter all or any part of the settlement made at any time during his life The verdict finds further that there was an Ordinance of Parliament made in the year of our Lord 1645. that Sir Thomas Morgan should forfeit all his lands and estate which he was then seised or possessed of or had been seised or possessed of from the year 1641. and that by the same Ordinance the lands in question were given to Mr. Pym that by virtue of the said Ordinance he encred was seised pro ut that Mr. Pym died so seised after whose death the Plaintifs lessor as his heir entred made a lease to the Plaintif after that Sir Tho Morgan died Mary the Defendant claiming as tenant in remainder for life after the death of Sir Thomas her father by vertue of the settlement made 13 Carol. entred into the lands in question and the Plaintif as lessée of Pym brings the action Vpon this special verdict the Question was Whether by the Ordinance of Parliament made not till the year 1645. yet looking back to the year 1641. the remainder of the lands in question which was setled 13 Car. being before the making of the Ordinance and also before the time to which the Ordinance looks back be forfeited by the Ordinance or not Forfeiture Latch of Councel with the Defendant argued That it was not forfeited 1. Because that the Ordinance is penal and retrospective or looking back and therefore it is odious in Law and shall not be largely interpreted but as strictly as may be 2ly The preamble of the Ordinance sets forth 2. things as the reasons why the Ordinance was made 1. Mr. Pyms deserts to whom the lands were given 2ly Morgans offences for which he was thus punished and both these grounds for making the Ordinance can extend no further than to the year 1641. and so not to the time of the settlement made 13 Car. by Sir Thomas Morgan for then neither of these causes alleged were in being 2ly The purview of the Ordinance is double 1. punitive 2ly remunerative 1. the punitive part which concerns the punishing of Sir Thomas Morgan 2ly the remunerative part concerning the rewarding of Mr. Pym and the punitiue part made in the year 1645. cannot reach the estate setled upon Mary his daughter so long before viz. 13 Car. for it can reach no further back than to the year 1641. at the most to which time and no further the Ordinance is retrospective and in the Statute of 23 H. 8. general words of an Act are restrained Besides there is a demonstration in the Ordinance that shews the Ordinance doth not extend to the estate of the Defendant as may appear by the provisoes conteined in it for although the children of Morgan are to be punished within the Ordinance by the second proviso of it yet this extends not to so long time as to 13 Car. when the estate was setled but only to the estate as it was in the year 1641. And therefore prayed Iudgement for the Defendant Wadham Windham on the other side argued that the estate of Morgan though it was said to be setled 13 Car. was forseited by the Ordinance Because the estate was not absolutely setled at that time for there was a proviso in the conveyance to revoke the settlement so that at the time of the Ordinance made the estate was in Sir Thomas Morgan absolutely to dispose off as he pleased and by the words of the Ordinance all Morgans estate is passed without any saving and the provisoes of the Ordinance do prove that the Children of Sir Thomas Morgan were excepted out of the savings made to preserve the estates of others Also Boons and Favours bestowed use to be amply expounded and this being a Boon bestowed by the Parliament shall receive as large a construction as is possible Besides Morgan was a Papist therfore it may well be supposed that he intended not this for any real settlement but only by way of subtility for some private reasons for we know that Papists do use to make such settlements as this was to preserve them from penalties of the Law And the words of the Ordinance are accumulative to convey all Morgans estate and there are no restrictive words and if there were they should be void here for the Manor of Callidown being the Lands in question are expresly given by the Ordinance and as to these Lands the rights of all men are bound and therefore if there were a saving it would be void as it is Cook rep Alton Woods Case And an act of Parliament sometimes is as a conveyance sometime as a judgment and both waies a saving in it is void and srivolous 1 Rep. 4. A conditional estate or a right may be saved by Iudgment or fine but not an entire estate or interest Saving and therefore the estate of Mary in the Manor of Callidown cannot be saved by any proviso and he cited Alton Woods Case for authority in the principal Case f. 51. But admitting a general saving had been good to save Maries estate yet as the words of the Ordinance were penned her estate is not saved by it for the words were put in the Ordinance for the advantage of Pym and not to provide for Mary for she claims from Thomas Morgan and so prayed Iudgement for the Plaintif Roll chief Iustice said that the provisoes in the Ordinance are not void to all persons as Windham argued for Strangers are clearly provided for by them But let the Case be argued again Saturday fortnight Postea Hatwood against Payte Mich. 1649 Banc. sup Entred Hill 24 Car. rot 78. THe question insisted upon in this Case was Whether Tithes be extendible upon an Elegit whether upon a recovery in an Action of Debt against a Parson the Tithes be extendible by Elegit Hales of Councel with the Plaintif held that they are because that Tithes may be said to be Tenements and the Parson hath a Free-hold in them although he hold them jure Ecclesiae But Roll chief Iustice said Elegit that a Parsonage cannot be extended but that the Debt may be levyed out of the profits of it by the Sherif as it was wont to be done Extent for now there being no Bishops the profits cannot be sequestred by the Bishop of the Dioces Sequestration as they used to be But Ierman and Nicholas Iustices doubted Clergy Ask Iustice agreed with Roll and said that by the Common-law the Clergy are no more privileged from paying their debts than Lay men are Roll chief Iustice said it hath been heretofore questioned whether a Clergy-man be subject to watch and ward or to contribute to satisfie for a robbery done within the Hundred but now it is no question but they are subject and shall contribute Adjourned till Saturday to be argued again Postea Tyndal and others against Harington Mich. 1649. Banc. sup TYndal brought an Action of Debt
the tax by prescription and it is not necessary to shew in what place of the Poe-Dike the breach happened Roll chief Iustice said the prescription here is waived for you say that it was not an inevitable breach and so you are at the Common law and not upon a custom and then the tax ought to be equal and according to the number of the Acres and it is not so here And it appears not that the breach is within the Hundreds whence the Iury came and so they have no authority to enquire Hales said that there is a clause to help this for there is a power in the Commissioners to ease them that have wrong done to them Roll chief Iustice This will not help Tax for the tax ought to be well and equally laid according to the Statute viz. upon the number of the Acres and here it is laid upon the persons of the inhabitants Therefore make a new tax Archer against Holbidg Mich 1649. Banc. sup IN this case the Action being an Action brought upon the Statute of 1 R. 3. Cap. 3. and a verdict for the Plaintif Arrest of Iudgement in an action upon the Stat. of 1 R. 3. cap. 3. it was formerly moved in arrest of Iudgment that the Statute was misrecited whereupon it was ordered the Parliament Roll should be brought in Court which was now done and read and upon the reading it appeared that it was misrecited for the Statute was for suspition of felony and the Declaration was for felony Misrecital whereupon it being held by the Court to be misrecited in matter of substance whereupon the Action was grounded The Court ordered a nil capiat per billam Mich. 1649 Banc. super AN Indictment was found against one for a forcible entry The Defendant traverseth the Indictment For restitution upon an Indictment of forcible entry Restitution and enters his traverse pleads The Plaintif moved the Court upon a suggestion that there had been divers verdicts found for this land for the Plaintif that the Plaintif might have restitution But the Court would not grant restitution before the tryal because the Defendant had traversed and pleaded Mich. 1649 Banc. sup THe Court was moved to discharge the issues set upon the inhabitants of Bridgwater To discharge issues for not repairing the high way Quash for not repairing a High way and to quash the Indictment upon a Certificate that the way was repaired The Court answered that further process should be stayed and the issues discharged But we cannot discharge the Indictment if you have no exception to take against it Mich. 1649. Banc. sup THe Court was moved to quash an Indictment against a Baker for selling of bread under the Assise To quash an Indictment for selling bread under the Assise The exceptions were 1. That it doth not say what Assise whereas there be divers Assises of bread 2ly The Indictment doth not shew where he sold the bread not to whom Roll cheif Iustice said to the first exception It is good enough to say he sold the bread contra assisam although it say not what assise but upon the second exception the Indictment was quashed Earl Rivers against More Mich. 1649. Banc. sup THe Earl Rivers was taken by a Latitat and committed to the Marshalsea The Earl by his Councel pleaded his privilege of Peerage and prayed he might be set at large Privilege of Parliament pleased Roll chief Iustice asked How is the plea now amended for yesterday you pleaded in abatement of the writ and now you pray to be delidered upon a bare suggestion Wild of Councel with the Defendant held that a Capias doth now lye against an Earl for comes dicitur a Comitando-rege Capias cessante rege cessat comes And demurred to the plea for want of form Roll chief Iustice said That Earls and Barons are antient titles of the Realm But let him plead as he will stand to it and advise well of the plea before the Demurrer joyned for we can give leave to amend the plea. Amendment VVare against Chappell Mich. 1649. Banc. sup VVAre brought an Action of Debt for 500. against Chappel Demurrer to a plea in Covenant upon an Indenture of Covenants between them viz. That Ware should raise 500 Souldiers and bring them to such a port and that Chappel should find shipping and victuals for them to transport them to Gallicia and for not providing the shipping and victuals at the time appointed was the Action brought The Defendant pleaded that the Plaintif had not raised the Souldiers at that time and to this plea the Plaintif demurs Windham of Councel with the Plaintif held that the Defendant ought to have provided the shipping and victual against the time though the Souldiers were not raised for the not raising of the Souldiers can be only urged by way of mitigation of damages and not pleaded in discharge of the breach assigned Yard of Councel with the Defendant held the plea was good in barr of the Action for the Covenants of each part have relation one to the other and there is a condition precedent made by the words to find shipping for the Souldiers so that the Defendant was not to find shipping Precedent condition except the Plaintif raised the Souldiers neither is there any notice given us how many Souldiers he had raised Roll chief Iustice held that there was no condition precedent but that they are distinct and mutual covenants and that there may be several actions brought for them Notice and it is not necessary to give notice of the number of the men raised for the number is known to be 500. and the time for the shipping to be ready is also known by the Covenants and you have your remedy against him if he raise not the men as he hath against you for not providing the shipping Ierman and Nicholas Iustices held against Roll that there is a precedent condition Ask Iustice was of Roll the Chief Iustices opinion Nicholas changed his opinion and so judgment was given for the Plaintif except better matter were shewn Jenkinson against Porter Hill 1649. Banc. sup Pasch 1649. rot 237. THese Errors in the Record were assigned to reverse a judgement given in the Court at York in an Action of debt Error to reverse a Iudgement in debt 1. That the time of the Iudgement is in figures 2. The sum recovered is in figures 3ly Venire is not good for it is Venire facias duodecim c. which is not good with an c. in an inferiour Court 4ly It doth not appear that the cause of Action is infra jurisdictionem Curiae And for these errors the judgement was reversed nisi c. Weston against Plowden Hill 1649. Banc. sup Mich. 1649. rot 503. THis case formerly spoken to was again moved which was this in effect Plea in abatement after imparlance Weston brought an Action of debt against Plowden upon
14. 4ly He prescribes that the lands are not pleadable elsewhere which is not true for in some cases they are pleadable here in this Court Nat. Brev. 19 D. and so prayed judgement for the Plaintif Roll chief Iustice demanded why is there not a special demurrer here Special Demurrer After imparlance one may plead that the lands are antient demesne for a plea of lands in antient Demesne to the jurisdiction of the Court differs from other pleas pleaded to the jurisdiction of the Court It is true that parcel of a Manor of antient demesne is pleadalbe at the Common Law but lands held of the Manor are pleadable in the Court of the Lord. Adjourned to be heard Tuesday following Afterwards it was moved again and Roll chief Iustice said that after imparlance this plea is not good because by it he hath admitted the jurisdiction of the Court And therefore lâ—â— him shew cause why he should not plead in chief Pascall against Sparing Hill 1649. Banc. sup Pasch 1649. rot 75. A Writ of Error was brought to reverse a Iudgement given in an Action in Bristow upon a Concessit solvere by the Defendant Error to reverse a judgement in Debt for Concessit solvere Declaration Roll chief Iustice said that an Action of Debt did well lie upon a Concessit solvere by the custom of Bristow and so is it in London 28 H. 6. 1 E. 4. f. 6. Another Error assigned was that it is said that the party recovered the damages per juratores Compert whereas it ought to be Assess for this is the proper word but this exception was also over-ruled Latch took another exception that there wants the words pro misis et custagiis in the assessing the damages and so it doth not appear for what the damages are assessed And for this the Iudgement was reversed except better matter shewn Damages Iennings against Lee. Hill 1649. Banc. sup GEnnings brought an Action of Trespaâ—s of an assault and battery against Lee and his wife Whether an issue well joyned for an assault and battery made by the wife the Feme pleads a special plea of justification that it was in defence of her Husband The Plaintif replies de injuria sua propria upon this there was an issue joyned and a verdict for the Plaintif it was moved in Arrest of Iudgement that the issue was nor well joyned because the replication was not good and so the verdict not good and so there can be no Iudgement Serjeant Parker prays judgement for the Plaintif for he held the replication was good and so a good Issue joyned and if there be not yet it is helped by the Verdict Issue or else by the Statute of Ieofails or if not yet it is at least good in part And the issue here doth imply a negative although there be not a direct negative but an affirmative in the words of it And 6 E. 4 16 b. in a Replevin and 9 H. 5. f. 1. b. there are good issues joyned in the affirmative because they imply a negative Trin. 18 Jac. Banc. reg Aldridge and Walthalls case and here wants only a Traverse which is but only matter of form and not material 2ly The Verdict hath made the issue good although it be not well joyned 5 H. 7. f. 15. 3ly If the Verdict helps it not yet the Statute of Ieofails helps it 5 Rep. Nichols case 19 Eliz. Dallisons Reports 8 9 Eliz. Bendloes Reports and 14 Car. Banc. Reg. 4ly If the Statute help not yet it is well enough because it is good in part and for part it is well found and damages shall be intented to be given for that which is well found Damages 9 H. 7. f. 4. 16 H. 7. f. 1â— 10 Rep. James and Osburns case 3 Iac. Banc. Reg. Bigrane and Selling Mich. 1649. Desmond Osborn this case the Court denied Roll chief Iustice said Issue if there be 2 issues and one issue is not well joyned and damages be given entire this is not good but will make all naught 40 Ed. 3. f. 40. 18 Iac. Aldridges case 16 Iac. Iones and Gates adjudged and he said that the material thing is not here put in issue and so the issue is immaterial and there is a Ieofail and the damages being given entire there can be no judgement given Jeâ—â—ail Ierman Iustice did differ in opinion and said if the Defendant plead an immaterial thing and the Plaintif joyn issue and it be found for him he shall have judgement otherwise where the plea is partly material partly immaterial for there the issue ought to be upon the material thing otherwise there can be no judgement It was adjourned till Thursday following The Case was this An Action of Assault and Battery and wounding was brought the Defendant pleads non cul to the wounding and justifies the Assault and Battery in defence of her Husband in keeping possession of certain lands The Plaintif replied de injuria sua propria and doth not traverse absque tali causa The Iury find entire damages for all whereas there is not a perfect issue joyned as to the Assault and Battery for want of the Traverse Postea Hodges against Iane. Hill 1649. Banc. sup IN an Arrest of Iudgement in this case the question was Whether debt lie against an Executor sur concessit solve of the Testator Wager of Law Debt Executor Whether an Action do lie against an Executor upon a Concessit solvere of the Testator upon a special custom Roll chief Iustice held that it doth not for this would be to charge an Executor in an Action of Debt where he may by the Law wage his Law and an Action of Debt lies not against an Executor upon a simple contract made by the Testator And he said that the reason for Ley gager is because it is intended that as well as the contract to pay money may be in private so may also the payment be made in private Adjourned Giaves against Drake Hill 1649. Banc. sup IN an Action of Trover and Conversion for divers parcels of Houshold stuff an Exception was taken to the Declaration Arrest of Iudgement in a Trover and Conversion because the Plaintif amongst other things had declared pro sex parcellis plumbi cinerii Anglice Pewter Porringers whereas the word parcellis is uncertain for a parcel doth consist of many things in number and so sex parcelli cannot be properly applyed to six Porringers but if it had béen sex peciis it had been better though that be also incertain Hales held it was all one as if it had béen pro sex peciis plumbi Cinerii Roll chief Iustice enclined it was well enough because though the words are not so proper yet the description is good enough Declaration Words Ierman Iustice was of the same opinion But Nicholas Iustice held that the Latin is not good for if there be proper words for a thing they ought to
him out of any County to the Courts at VVestminster notwithstanding the Statute Hamond against Kingsmill Pasc 1649. Banc. sup HAmond a Iustice of peace brought an Action upon the Case against Kingsmill Arrest of in an action â—â—r words for speaking these several words of him viz. Mr Hamond did of his own head put into Mores confession that he stole the Lambs And 2ly That he was a debauched man and is not fit to be a Iustice of Peace Vpon not guilty pleaded and a verdict for the Plaintiff The Defendant moved in Arrest of Iudgement that none of the words were actionable or at least the last words are not and so Iudgement cannot be given For the first words he said they ought to be taken in mitiori sensu and they may have a good construction viz. that he framed the confession without being helped by any other body And for the second words that he was a debanched man they cannot touch his office at the present Mich. 24 25. Eliz. C. Banc. 1. because they are spoken in the preterperfect tence not in the present tence The Court said that the words was a debauched man are incertain words Therefore take Iudgement for the first words and nil capiat per billam for the second except cause shewed to the contrary Iennings against Lee. Pasc 1649. Banc. sup IEnnings brought an Action of Assault and Battery against Lee For a repleader because an immaterial issue joyned The Defendant pleaded non cul to the Battery and pleaded a special justification as to the Assault It was prayed there might be a repleader granted because the issue joyned is immaterial The Councel on the other side prayed for Iudgement Wild held that there is an Issue joyned for the Record faith so and the Iury have found the Issue and if it be ill it is not helped by the Statute and so there can be no Iudgement All issues are not joyned by an expresse affirmative and an expresse negative for if it be but by implication it is good enough An immaterial Issue is not helped by the Statute but an informall issue is helped and here the issue is immaterial 32 Eliz. Lovelace and Griffin rot 934. Trin. 22 Car. Coles case rot 932 Banc. Reg. 23 Car. More and Clipson and prayes for a repleader Serjeant Parker on the other side said the cases cited were not to the purpose as to the Case at the Bar for here is a good issue joyned to one thing pleaded if not to the rest Roll chief Iustice held that where there is an immaterial issue there ought to be a Repleader and it is not helped by the Statute and there can be no Iudgment for the matter is not putin tryal Repleader and for this cause it would be unreasonable to give Iudgement Ieofail Issue and this is an immaterial issue Trin. 9 Car. entred Mich. 8 Car. rot 366. Tayler and Sparks an affirmative and an implyed negative make a good issue though it be not an express negative Therefore replead Hurd against Lenthall Hill 1649. Banc. sup Entred Mi h. 1649. rot 568. VPon a special verdict in an ejectione firmae Question upon the words of a will whether a joyntenancy or a tenancy in Common The Case upon the words of a Will was this Lands were devised to two daughters equally to be divided and to the Surviver of them and to the Heirs of the Body of the Surviver of them Maynard held that here is a joyntenancy because otherwise the Will cannot take effect in all parts Hales held that there is a tenancy in Common and not a joyntenancy nor any crosse remainders Roll Chief Iustice said That the words equally to be divided in a Will Ioyntenant Tenant in common do make a tenancy in Common by construction but in a grant it would be otherwise but here upon the entire Will it doth not appear that the Lands should be divided but that there should be a Surviver And the Land was intended for a security for a portion and that the devise should stand till the monyes should be paid And in a Will the last words of it do explain the first words but it is not so in a grant Will. Grant All the Iudges agreed in opinion with the chief Iustice and Iudgement was given for the Plaintiff nisi causa c. Pasc 1649. Banc. sup THe Court was moved for a Certiorari For a certiorari to the Lord Maiors court of London Certiorari to the Lord Maiors Court of the City of London to remove an information exhibited in that Court against a Woodmonger of London grounded upon an Act of Common Councell The Court answered we cannot do any thing in it if it should be removed hither if it be grounded upon an act of Common Councel but if the Act of Common Councell be against Law we may grant a Certiorari Adjourned till Friday next to hear Councell on both sides Lamb against Duff Pasc 16â—â— Banc. sup VPon an Affidavit the Court was enformed that Lamb had arrested Duff after a verdict found for Lamb against him to the intent For false practice that he may have him in Custody when the Iudgement is entred against him and for no other cause as appears by his own confession it was therefore prayed the party may be set at large The Court made answer that this was a strange and an irregular course and ought not to be If one take out a latitat against one and have no cause of Action against him the party may have an Action of the Case for it Case Attach nt Take an attachment if he will not discharge the party or else let him shew cause to morrow why he should not discharge him Hollingworth against VVhetstone Pas 1649. Banc. sup HOllingworth brought an Action of Debt upon a single obligation against Whetstone Demurrer to a plea in debt upon a single obligation Bar. Abatement The Defendant pleaded payment of part of the sum since the Action brought in Bar of the Action To this Plea the Plaintif demurred The Court answered the plea was not good in Bar of the Action but in abatement of the Writ it had been good Therefore let the Defendant shew cause why Iudgement should not be against him upon the demurrer Gibbon against Kent Pasch 1649. Banc. sup Pasch 24 Car. rot 60. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas Error to reverse a judgement in debt upon the Statute of 2 Ed. 6 in an Action of Debt brought upon the Statute of 2. Ed. 6. for the not setting forth of Tithes The Errors assigned were 1. That it doth not appear that the Lands sowed do lye in the Parish that is laid in the Declaration 2ly The Plaintiff hath not intitled himself well to his Action for the Statute of 3â— H. 8. is taken away by the Statute of 13 Eliz. 3ly The Statute is
pacty who is to assign the dower may agrée that the dower shall be assigned without bounding it For consensus tollit errorem But dower ad ostium ecclesiae must be more certain Dower Mich. 43 44 Eliz. Bullock and Finches case Hill 4 Iac. C. B. Roll chief Iustice Of Common right a feme ought to be endowed per metas bundas where the Sheriff assigns dower who is an officer of the Law and ought to prevent incumbrance and disputes But it may be assigned generally of the third part in some cases Consent and the partyes may agree against Common right and here both partyes agreed to take dower in this Manor And though here the termer for years of the land who is a third person be prejudiced by this assignment yet this alters not the case because it is only an estate for years and toucheth no freehold Nicholas and Ask Iustices as Roll. Ierman Iustice If dower be of a third part it ought to be by metes and bounds generally but if it be of a moyety it is not so or if the partyes consent it shall be otherwise Roll if the Sheriff assign dower and do it not per metas bundas it is Error Error if it might have been so assigned and where a feme cannot be endowed per metas bund as she may enter without assignment Iudgement was given for the Defendant nisi c. Smith against the Earl of Dorset Trin. 1651. Banc. sup SMith moved the Court against the Earl of Dorset Motion for an attatchment for disobeying a rule of Court Attatchment for an attatchment for disturbing of him in the possession of certain Lands contrary to the rule of this Court for the Plaintiff to have possession The Court answered that for only disturbing his possession there ought not to be an attatchment granted but if he be put out of possession he shall have an attatchment The Councel replyed that the partyes cattel were driven off from the land which they conceived was an ousting of the party from his possession To this the Court answered that this seemed to be a putting out of possession And therefore ordered that the Defendant should shew cause why an attatchment should not be granted Owen against Ievon Trin. 1651. Banc. sup Pasc 1651. rot 211. THis case formerly spoken unto in arrest of Iudgement and then stayed Iudgement prayed in an Action for words was again moved and Iudgment prayed for the Plaintiff by Serjeant Glyn who argued that the words were actionable because if they were true the party of whom they are spoken is punishable by the Statute of 7 Iac. with corporal punishment and besides the words were spoken since the last Statute made against Adultery which doth aggravate the words and make them more actionable Iudgement was given for the Plaintiff nisi In this case it was said by the Court that it was adjudged in one Thecker and Duncombes case that a woman may have a child in 38. weeks and that a woman by cold or hard usage may go with child above 40 weeks Antea Nelson against Tompson Trin. 1651. Banc. sup Trin. 24 Car. rot 343. NElson brought an action of the Case against Tompson Demurrer in an Action upon the Case upon a promise and did declare that the Defendant in consideration that the Plaintif would cease to prosecute a sute in Law against him did assume and promise unto the Plaintif that he would pay unto him 8 l. the charges of sute which he had been at for breach of this promise Actio acrevit sets forth his damage To this Declaration the Defendant demurs in Law takes this Exception viz. That there is no time nor place set forth where or when he did forbear to sue the Defendant as it ought to be because it is a traversable matter But Roll chief Iustice answered It is not necessary to allege a place of a negative thing to be done viz. to say that he did not prosecute the sute in such a place or at such a time for he ought to surcease prosecution in all places and at all times Therefore let judgement be for the Plaintif except better matter be shewn Friday next Lydaâ—e and Lyster Trin. 1651. Banc. sup Mich. 1650. rot 387. AN Action of Debt was brought upon an Obligation made to a Bishop and his Commissary for the payment of Debts and Legacies Iudgement in Debt upon a Bond reversed the Action was brought by an Executor and judgement given by Default against the Defendant the Iudgement was reversed by a Writ of Error because the Action was brought in the Debet and Detinet whereas it ought to have been brought in the Detinet only because it was brought by an Executor Saunders against Ritch Trin. 1651 Banc. sup Hill 1649. rot 758. IN an Action of Trespass and Ejectment upon a special verdict found The Case fell out to be this Special Verdict in Trespass and Ejectment A man by his last Will and Testament devised all his Fée simple land wheresoever to his Brother upon condition that he suffer his wife to enjoy all his free lands in Holford during her life and the jury found that the Testator had only a portion of tithes in Holford The question was whether the portion of tithes did pass to the wife by this devise Merifield held That the Tithes passed not by the devise because the word lands cannot extend to tithes for that would be a very forced construction and cited Trin. 17 Iac. Banc. Reg. Knight and Knights case and Mich. 39 40 Eliz. Entred 38 Eliz. rot 269. Yow and Hardings case Banc. Reg. That Houses are not devisable by the name of lands and he said that the word wheresoever makes no difference as to make the tithes pass and though there be an implication and an intent in the Testator here to dedevise the tithes yet that will not serve because there wants words to express this intent and though this be in a will yet there must be words used to support the intent of the Testator for wills must be ruled by the rules of the Common Law Ashinghurst and Curtice his case Mich. 7 Iac. Hob. rep 34. the last Edition Mich. 42 43 Eliz. Banc. Reg. a devise of Lands extend not to tithes for tithes are not lands but a meer collateral thing to them and have no relation to them Mich. 1. Iac. rot 192. Mills and Hides case Banc. Reg. 11 Rep. Bridle and Napers case f. 13. b. Trin. 42 Eliz. B. Reg. Sherwood and Winston held that tithes cannot be appendant to a Manor 1 Rep. 111. Albanies case and here are no words in the Proviso to pass the tithes It is true that tithes may lie in tenure and that an Action of debt lies for them but that is by the Statute 19 Eliz Dyer f. 354. The word land in a will doth not extend to tithes and heirs ought not to be
him Wild in Arrest of Iudgement takes these Exceptions to the Declaration 1. It saith that the Principal rendred himself in Execution to discharge his Bail and saith that afterwards he escaped whereby he could not have him in Execution which séems contradictory to what he formerly said 2ly He saith that he rendred himself to the Mareschall whereas he ought to say that he rendred himself to the Court for it is the Act of the Court that turns him over to the Mareschal Roll chief Iustice He cannot render himself to Sir Iohn Lenthal in discharge of his Bail Bail for only a Iudge can take and discharge a Bail and not Sir Iohn Lenthall but here it is that he did it in Court and therefore it is well enough for he may render himself to Sir Iohn Lenthall in Court though out of Court he cannot and therefore let the Plaintif have his Iudgement Rogers and Done Trin. 1652. Banc. sup Pasch 1652. rot 354. IN an Action of Trover and Conversion for 3 Cart loads of Dats Arguments upon a Demurrer to a Plea to the jurisdiction of this Court Barlie and Pease The Defendant pleaded a special Plea to this effect That the land where the Trover was supposed to be is 5 acres of land lying in B. and that is within the County Palatine of Chester and that he holds the land for term of years and by vertue thereof did sow and take the Corn thereupon growing and traverseth the Conversion out of the County Palatine and avers that there are Courts of Iustice held within the County Palatine so that Iustice may there be had and says that he ought to be sued within the County Palatine and not elsewhere and therefore demands Iudgement if he ought to be sued in this Court. To this plea the Plaintif demurred and shewed for cause that the Action being for a transitory matter it may be tryed out of the County Palatine as well as within although if it were for a local matter it would be otherwise and the party here hath pleaded not guilty which may be tryed any where Cooks Instit 282. In some Cases an Obligation hearing date at Chester may be sued in another place 19 E. 3. Fitz. Oar. 29.45 Ed. 3. Fitz. visne 50.9 Iac. C. B. Richardson and Meares a Battery in Chester tryable out of it 11 H. 4. f. 40. Crompton Iuriâ—diction of Courts f. 213. Transitory things emergent in the County Palatine of Chester may be tryed else-where 45 E. 3. f. 17. And so it was prayed the Defendant might plead over Serjeant Glyn on the other side held that this plea was a good plea to the Iurisdiction of the Court. Here are many matters of fact confessed and the matter in Law is whether the title of the land within Chester shall be tryed out of that jurisdiction In 31 Ed. 1. in the Exchequer it is clear they have conusance of Pleas. Roll chief Iustice to that answered but it is not that they shall not be removed thence Serjeant Glyn proceeded said that also upon a reference to 4 Iudges by Queen Elizabeth it was certified that all Actions real and personal arising in Chester are tryable there and not elsewhere 22 E. 4. Fitz. Iurisd 61. 21 H. 7. f. 23. 1 H. 7.26 10 H. 6.14 a H. 4. f. 25. As to the Objection that this is a clear personal Action and therefore transitory 1. I deny the authority of Cook in his 4 Institutes cited on the other side Next the Action here by the pleading of it is made real and then though Cooks opinion should be Law it comes not home to our case and a transitory action may be made real by the pleading of it 27 H. 6. f. 1. Hill 38 Eliz. Banc. sup Hill 2 Car. in Belamy and Bolthorps case in this Court 6 rep 14. A thing is tryable there where the best conusance of it may be had 6 H. 7. 3 2ly The averment of the party here is that all actions personal and real within Chester are tryable there and this being matter of fact is confessed by the Demurrer 9 H. 7. Porter Nicholls in the Exchequer 10 Car. And it would be a great inconvensence to try the title of lands lying within Chester out of it for so all causes real may as well be tryed in forein Counties even through all England which would be very mischievous Roll chief Iustice Tryall If we can avoid it it is not good to try causes in forein Counties but here you have by your demurrer confessed that all causes real and personal shall be tryed there and what say you to that 2ly Traverse Waiver Issue It is to be considered whether your Traverse be not repugnant to your Plea for you have waived the plea to the jurisdiction of the Court and put your self upon an issue by the traverse which you ought not to have done but you ought to have relyed upon your plea to the jurisdiction of the Court for as the traverse is taken untill a tryall be had in the cause we cannot tell whether the Trover and Conversion be within the County Palatine or out of it and this is matter of substance and tryable and therefore it would be hard to maintain your plea. At another day the case was argued again and first by Twisden for the Plaintiff and he took thrée things into consideration 1. Whether the plea were a meer plea to the jurisdiction 2ly Whether it be made good by the demurrer 3ly Whether the traverse have not spoiled the plea. 1. He held the plea was not good because the Action is meerly transitory and may be laid in any place 2. Mar. Br. traverse 983. Cooks Lit. f. 202. and the Defendant cannot plead that the cause of Action lyes in any other place than where the Plaintiff layes it Cooks Iurisd of Courts is full authority in point what ever is objected against it 30 H. 6. f. 6. I admit of the jurisdiction of the County Palatine but yet it must not entrench upon the Common Law and I admit all the books cited but they are of other local matters or of things transitory which are fixed to Chester by the pleading of them and Dyer 122 comes not to our case nor crosses the case of 10. Iac. 3. rep Ridgwayes case and here it shall be intended that the Iury may there have best conusance of the matter where the Action is laid and not else-where although the Action do savour of the Land For the second matter the demurrer makes not the plea good for the law sayes it is not good and the partyes cannot alter the Law Burtons case 5. rep f. 59. 5 H. 7.1 3ly The traverse makes not the plea good for the traverse is waived and he relyes upon another matter 5. Car. rot 817. Burton and Cornish the traverse taken took away the justification before pleaded so doth it here and the traverse here is not good because it is in a
arrears are which are accrewed since the purchase Award for how can he know when the purchase was made for it is made by a stranger and what if the stranger will not tell him when he made it so that me thinks the Award is unreasonable and then it cannot be good The rule was Nil capiat per Billam Nisi c. Hill 1652. Banc. sup THe question being upon a motion in Arrest of judgement in an Action brought for money paid upon a Bill of Exchange brought by a wrong person Question in Arrest of Iudgement in an Action upon a Bill of exchange to whom the Bill belonged not and a verdict for the Defendant Twisden said That if money be paid to a wrong person upon a Bill of Exchange if the wrong person do shew the Bill by the Custom of Merchants this is a good payment and the party that paid it shall not be charged again Wild It is doubtfull whether the Custom be so or not But Roll chief Iustice said Custom here is a verdict for the Custom and therefore it were well if the parties would agree to a new tryal but if they will not take your judgement because the verdict hath found it a good custom Custodes against the Inhabitants of Stoneham in Suffolk Hill 1652. Banc. sup THe Inhabitants of the Parish of Stoneham in Suffolk were indicted for not repairing a High-way Motion to set a fine upon a conviction for not repairing a High-way and a verdict found against them The Court was moved that a good fine may be set upon them because the way is not yet amended and a Traveller that passed that way hath lost his horse since the Tryal by reason the way was so bad so that the Horse brake his Leg. Twisden on the other side moved the fine might be respited because there was a contest between this Parish and another which of them ought of right to repair the way and in regard this Parish is very poor and lastly because the way cannot be amended until Summer and then it shall be done Roll chief Iustice The fine shall be set upon you for not repairing it already because the verdict found you ought to do it and the Country suffers by your neglect Fine Distringas Therefore take a Distringas to levy a fine of twenty pounds of the Parishioners for not repairing it Hill 1652. Banc. sup VVIld moved the Court that paying costs the Plaintiff might have a rule to discontinue his Action because there is such a travers now taken that the title of the land in question can never come to be disputed Roll chief Iustice Motion for the Plaintif to discontinue his Action You may do this by the course of the Court without motion therefore why move you for it But I conceive your reason is because there is a peremptory rule of Court upon you to try the cause this next Term and now you move to avoid the contempt you may fall into for disobeying that rule Contempt if you should not go to a tryal Yet pay good costs and discontinue your Action Q. Nota. Hill 1652. Banc. sup THe Court was moved that a Feme that was sued only as an Executrix might be discharged upon putting in Common Bail Motion that Common bail might be accepted Roll chief Iustice It is the common course if there be no special cause of Action against an Executor as a Devastavit or the like for Common Bail to be admitted Hill 1652. Banc. sup HOdsden One of the Attorneys of this Court For an Imparlance was together with another made a Lessee in an Ejectment Lease and would not grant an Imparlance to the Defendant as the usual course is because he is an Attorney of this Court and so claims his privilege Privilege that the Defendant may answer him this term or else he will enter judgement against him for want of a plea. Q. what was done hereupon Hill 1652. Banc. sup IN the case of one Hoff the Court was moved to confirm a rule made between the Plaintifs Attorney and the Defendants Motion to confirm a rule for a Tryal at the Bar. Roll chief Iustice Let it be so for if the Attorneys agrée to reasonable things we will not oppose them Rule But the Attorneys ought not to make rules of themselves Hill 1652. Banc. sup BOynton moved for a Deer-stealer that was convicted at the Sessions in London upon an Endictment preferred against him upon the late Act made against stealing of Deer and removed hither by a Habeas Corpus Exceptions to a retorn of a Habeas Corpus that the Retorn might be filed and took this Exception viz. That it appears not in what Parish the offence was committed as it ought to doe Roll chief Iustice Here is a conviction and a judgement in the Case and the party is in Execution and therefore bring your writ of Error if the judgement be erronious for we will not overthrow it for a fault in the retorn of the Habeas Corpus But because it did appear to the Court that the party was convicted behind his back they moved the Councel to advice of a way how he may come to a fair tryal for the satisfaction of the party Error and of the people For it is a hard case and let the Marshal take him in the mean time And we will also advise Hill 1652 Banc. sup BY Roll chief Iustice If a sum of money be to be levied upon a Corporation it may be levied upon the Maior or chief Magistrate How money is to be levied upon a Corporation or upon any person being a Member of the Corporation This was spoken in the Case of the Town of Colchester in Essex Nota. Hill 1652. Banc. sup THe Court was moved that a Sherif might be ordered to retorn a Writ upon a pain Motion for a Sheriff to return his writ Pain Affidavit Sugestion But Roll chief Iustice answered let him return it but not upon a pain because here is no Affidavit to prove that he refused to return it but only the suggestion of the Councel at the Bar. Hill 1652. C. B. BY Pinsent protonotary of the common place Who may defend a title in Trespasse and ejectment If one move that the title of land doth belong unto him and that the Plaintiff hath made an ejector of his own and thereupon prayes that giving security to the ejector to save him harmlesse he may defend the title this Court will grant it but will not compell the Plaintiff to confesse the lease entry and ouster except he will be ejector himself But it is not so in the Court of the upper Bench for there in both cases they will compell him to confesse lease entry and ouster But Q. for I have not known it so ruled Hill 1652. Banc. sup AN order of Sessions made at Arondell in Sussex for paying so much money
Iustice answered Denied It appears not to us but that the Parliament was sitting at the time and peradventure it will be made appear at the tryal Therefore plead and go to tryal and then move in Arrest of judgement if you have any thing to move Page and Parr Hill 1654. Banc. sup Trin. 1654. rot 1687. PAge brought an Action of Covenant upon a Covenant conteined in an Indenture of a demise for years Covenant upon an Indenture for the not paying the rent reserved by the Indenture according to the Covenant The Defendant pleads in bar that the Plaintif entred into part of the land demised before the rent due for which the Action was brought and so had suspended his rent The Plaintif replyed the Defendant did re-enter and so was possessed as in his former estate Suspension of ren and to this replication the Defendant demurred and for cause he shewed that here was no confession and avoidance or traverse of the plea in bar Roll chief Iustice Have you shewed that he continued in possession until the rent grew due for you ought to shew that he entred and was possessed untill after the rent-day but here you have only said that he was possessed in his former right Nil capiar per Billam Therefore nil capiat per Billam nisi Hill 1654. Banc. sup VPon an Affidavit read in Court Not to plead till costs paid assessed in a former Action that 20 l. costs were taxed upon a non-sute in an Action of Trespass and Ejectment brought to the Bar and that the Plaintif had not payed them nor was to be found and yet had brought another Action for the same land The Court was moved that the Defendant might not be ruled to plead to this second Action until the Plaintif had paid the costs taxed upon the former non sute and that another Plaintif might be named or that security might be given to pay the costs if the Plaintif should be non-sute again Shew cause The rule was to shew cause why it should not be so Hill 1654. Banc. sup DArcy moved that an Endictment of Michaelmas Term last might be amended in the Caption But Roll chief Iustice answered To amend an Endictment of a former Term denied It cannot be if it be of the last Term but had it been an endictment of this Term it might have been amended Hill 1654. Banc. sup THe Court was moved to quash an Endictment for entring forcibly upon a Tenant for years against the Statute of 21 Iacobi To quash an Endictment and the Exception was that the Endictment doth not say that he entred manu forti Roll chief Iustice answered The Statute is only that if one enter by force and the words manu forti are not expressed in the Act Therefore move it again if you will Hill 1654. Banc. sup A Habeas Corpus cum causa was granted for Elizabeth Bayne To discharge a prisoner turned over to the Mareschal For a habeas corpus ad subjiciendum to the intent to charge her with an Action and upon the return thereof she was committed to the Mareschal Wild moved that she might be discharged because the return of the Habeas Corpus is erronious But Roll chief Iustice answered It could not be whereupon he moved for another Habeas Corpus for her ad subjiciendum to be directed to the Mareschal which was granted Hill 1654. Banc. sup THe Court was moved to quash an Endictment preferred against one for practising Phisick not being skilfull in the profession To quash an Endictment for practising Phisick without licence and not having a License to practice from the College of Phisicians The Exceptions were 1. That no Endictment at the Common Law lies for the offence supposed to be committed for it is not an offence against the Common Law and 2ly an Endictment upon the Statute lies not and so no Endictment lies And upon these Exceptions it was quashed The Protector and Hart. Hill 1654. Banc. sup ONe Hart committed to the Gatehouse appeared in Court upon the return of a Habeas Corpus granted for him To remand a prisoner appearing upon a Habeas Corpus and turned over Denied and upon the prayer of his Councel the return was filed upon which it was moved on his behalf that he might be remanded to the Keeper of the Gatehouse and not turned over to the Mareschal to the intent to save his fees but the Court said it could not be because upon filing of the return there ought to be entred upon it a Committitur to the Mareschal whereby he becomes his prisoner Torret and Frampton Hill 1654. Banc. sup Trin. 1653. rot 178. VPon a special Verdict the Case was this Special verdict upon a Devise A man deviseth his lands to his wife for her life the remaindar to A. B. and C. and their heirs respectively for ever The question was whether A. B. and C. were joynt tenants or tenants in common Serjeant Twisden held that they were joynt renants Whether joynt tenancy or a tenancy in common and that this case differs from Radcliffs case and cited Wilds case in the 6 Rep. that a Will must be clear and conspicuous but so it is not here and here is no enforcement by these words respectively and they do relate to the persons and not to the lands bequeathed and a Covenant made by three respectively is a joynt Covenant and not a several Covenant and the word respectively hath relation to the survivorship which may happen betwixt the parties and a devise to one and his heir is a fee-simple Latch For the Defendant held that here is a tenancy in Common and not a joynt tenancy for the Estate ought to be whole out either a tenancy in Common or whole out a joynt tenancy and this of necessity for there cannot be a joynt tenancy for life and several inheritantes in the remainder and Littletons ground proves this to be so And 2ly It is against all construction to be otherwise as the word respectively is here placed and Ratclifs case which is not so strong a case as this case proves it to be so and although the word respectively may sometimes make a distribution of heirship as hath been objected viz. of several heirships yet here the placing of the word respectively shews it cannot be so Distribution of heirship and this using of the word is not operative but idle if here should be a joynt tenancy for the law says as much though the word respectively were left out and the word would be the more idle in explicating a thing so obvious to common understanding and no ways doubtfull and therefore we cannot think but that these extraordinary words do enforce an extraordinary construction and not a common one and an idle application and this comes not within the rule objected for the certainty for this word hath a proper meaning to make a several distribution
to the surrender or otherwise the admittance is not good Thurle and Madison Mich. 1655. Banc. sup IN a Tryal at the Bar between Thurle and Madison Enrolment of a Deed. It was said by Glyn chief Iustice that if divers persons do seal a Deed and but one of them acknowledge the Déed and the Déed is thereupon enrolled this is a good enrollment within the Statute and may be given in evidence as a Deed enrolled Evidence at a Tryal It was then also said that if a deed express a consideration of money upon the purchase made by the Deed yet this is no proof upon a tryal Consideration that the monies expressed were paid but it must be proved by witnesses MEorandum Copy proved That upon the same Tryal an Act of Parliament produced in point for the selling of Delinquents estates was sworn to have been examined by the Parliament Roll and that it was a true Copy before it was read in evidence Nota. VVood and Gunston Mich. 1655. VPon a motion for a new tryal between Wood and Gunston Memorandum New tryal for miscarriage of the Iury. upon a supposition of excessive damages given by the Iury in an Action upon the case tryed at the Bar for words viz. Calling the Plaintif Traytor c. 1500 l. being the damages given It was said by Glyn chief Iustice that if the Court do believe that the Iury gave their verdict against their direction given unto them the Court may grant a new Tryal And a new Tryal was gronted in this Case after a full debate had by Councell on both sides Culliar and Iermin Mich. 1655. Banc. sup CUlliar brought an Action upon the Case upon a promise and declared Arrest of judgement upon a promise that the Testator of the Defendant in consideration that the Plaintif would mary such a Woman did promise that he would leave him half his Estate at his death and thereupon he did mary the party and yet he did not leave him half his estate at his death Vpon a verdict found for the Plaintif it was moved in arrest of judgement that the Declaration was not good for whereas the promise was that the Defendant should leave him half of all his estate which might be intended both of his real and also of his personal Estate and of any estate in reversion as well as of an estate in possession the Plaintif only says that the Testator died worth 3000 l. in possession and that he did not leave him half of that estate and it may be he left him part of his real estate or estate in reversion to the full value of half his whole estate But Glyn chief Iustice disallowed the exception and gave judgement for the Plaintif Iudgement Lance and Blackmore Mich. 1655. Banc. sup Hill 1654. rot 191. LAnce an Executor brought an Action upon the Case against Blackmore Arrest of judgement in an Action upon the Case upon a pro and declared that in consideration that the Testator would suffer the Defendant to enjoy such a Close of land the Defendant did assume and promise to pay 53 s. a year for the rent thereof for so long time as he should enjoy it and for so much rent due for it for so long time in the Testators life time and for so much rent due since his death he brings the Action Vpon non assumpsit pleaded a verdict was found for the Plaintif and entire dammages given It was moved in arrest of Iudgement That an Action of the Case doth not lie it being for the non-payment of rent which follows the nature of the land and doth sound in the realty for which a personal Action lies not 2ly Here doth not appear by the Daclaration Personal act on Consideration to the any consideration to ground the promise upon for the Declaration is that if the Testator in her life time would permit the Defendant to enjoy the Close then c. and it is not averred Averment that the Testator did in her life time suffer the Defendant to enjoy the Close Glyn chief Iustice If a promise be made to the Testator the Executor may have an Action Executor and it is a good consideration as to him for the executor is representative of the Testator And 2ly An Action upon the Case will not lie for rent upon a promise in law but upon a special promise of the party to pay it Promise in Law Special as our Case is it will lie Ingram and Fawset Mich. 1655. Banc. sup IN this Case it was said by Glyn chief Iustice Administratâ—r must shew how Administrator That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintif to shew by whom the letters of Administration were granted unto the Defendant but he must shew by whom the letters of Administration were granted to himself to entitle himself to the Action for if it appear not to the Court that he is Administrator he cannot sue by that name Mich. 1635. Banc. sup IT was said by Wild and agreed by Whitwick one of the Masters of the Vpper Bench office How far special bayl is lyable for the principal that if an Attorny do appear for one in the Vpper Bench special bayl is entred for his Clyent to that Action that that Bayl is not bound to stand Bayl to all other Actions that shall be declared in against the party upon the by but the Attorny for him is bound to appear for him in all such Actions and to put in Common bayl Wagstaff and Tempest Mich. 1655. Banc. sup IT was said by Glyn chief Iustice upon evidence given in a Tryal at the Bar Dispensation with a forfeiture of an Estate bayl between VVagstaff and Tempest that if tenant for life do levy a Fine of the Lands he is so seised of whereby he should forfeit his estate yet if he in the remainder will joyn with the Tenant for life in declaring the uses this is a dispensation with the forfeiture and Le Gay Mich. 1655. Banc. sup THe Court was enformed For a time to accompt before Auditors that in an Action of Accompt brought there was a verdict that the Defendant should accompt before Auditors and that Auditors were assigned and the parties were now before the Auditors and thereupon it was moved on the Defendants part that this Court would grant him time to accompt for the reasons alleged But Wild answered that it was not proper to move here for the Auditors are now Iudges of the matter Auditors Iudges by the Statute and may give time if they see cause To which Glyn chief Iustice agreed and said the Auditors are Iudges by the Statute and therefore move before them and trouble not us with it Sergeant Bradshaw and Procter Mich. 1655. Banc. sup IN the Case of Sergeant Bradshaw and Mr. Procter of Grays Inne Challenge to an array no part of
for the acquittance and the bond Ask I have not a book but I think the case is as it hath béen put and here is no Covenant that the Defendant should receive the 110 l. at the day Nil caplat per Billam Glyn chief Iustice Nil capiat per Billam nisi c. Clark and Fitzwilliams AN Action of Trover and Conversion was brought by Clark against Fitzwilliams for divers goods and houshold stuff and amongst the rest the Plaintif declared of a Trover and Coversion of 6 Tuns Arrest of Iudgement in a Trover and Coversion After a Verdict for the Plaintif it was moved in Arrest of Iudgement that the Declaration was uncertain for it cannot be known what is meant by 6 Tuns and upon this the judgement was stayed till the Plaintif should move Whereupon Serjeant Twisden at another day moved for judgement and said the Declaration was good enough for it is known that the 6 Tuns are Brewers Vessels or else they signifie nothing and then no damages are given for them according to Osborns case and the case where the Action was pro viginti ulnis instead of ulmis Windham on the other side said that a Tun is a measure and well known so to be and you ought to shew certainly of what you doe demand the quantity of six Tuns and it cannot be said that the six Tuns shall signifie nothing as Serjeant Twisden supposeth for here the words are substantive and signifie by themselves and not adjective and Osborns case cited was adjudged upon another reason for fulcrum lecti signifies a Bedstead and the Anglice which was added viz. Curtains and Valence were a meer addition and no part of the Declaration and besides they were in English which ought not to have been Glyn chief Iustice The Court hath delivered their opinion already That it is incertain what the Plaintif doth mean by the words 6 Tuns for this case is not like the cases put where a thing is mentioned which doth signifie nothing for there damages cannot be given for such a thing for the word Tun doth signifie divers things but it is incertain what it doth signifie here Nil capiat nisi and therefore Nil capiat per billam Ask Iustice ad idem Fox and Swann Mich. 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Fox Plaintif and Swann Defendant exception was taken against a witness that was produced to prove the lease of ejectment Exception against a wâ—â—nesse because he had the inheritance in the lands let but it was urged by the Councel on the Plaintifs side that the Defendant did claim under the same person that the Plaintif did and thereupon the witness was admitted to be sworn and in this case it was also said that if Lessée for years do covenant with the Lessor not to assign over his Term without the Lessors consent in writing A Devise is not an assignment and do afterwards without such consent devise the Term to J. S. this is not a breach of the Covenant for a devise is not a lease It was also said that if a lease for years be forfeited and the rent for the land let be afterwards received by the Lessor or by his assent the lease is made good again by this Act of the Lessor Lease forfeited revived and the forfeiture is dispensed withall Nota. Mich. 1655. Banc. sup VPon Articles exhibited in this Court against one Alwin an Attorney of this Court for false practice and Barratry Attorney convicted upon Articles turned over the Bar. and proved against him by divers Affidavits read in Court Iudgement was pronounced against him by the Court that he should be put out of the Roll of the Attorneys and be fined 50 l. and turned over the Bar and stand committed He was turned over the Bar accordingly at the West end of the Bar by the Tip-staffs of the Court. Martyn and Miller Mich. 1655. Banc. sup THere were two several causes tryed betwixt Martyn Plaintif Arrest of Judgement upon an Error of a Clark and Miller Defendant and thereupon there were two venires and two Distringasses taken out and by the mistake of the Sherif a wrong Distringas was filed to the Venire viz. that which should have been filed to the Venire in the first cause was filed to the Venire in the second cause and this was moved in Arrest of Iudgement Glyn chief Iustice This is as if there was no Distringas and is therefore helped by the Statutes of Ieofails but if it were an erronious Distringas it could not be helped and here was a good issue joyned and a good tryal of that issue and it was but the mistake of the Sherif and may be amended by taking off the wrong Distringas from the Venire and fixing the right Distringas in the room of it No Rule and therefore this is no cause to arrest judgement FINIS An Alphabetical TABLE OF THE SEVERAL HEADS Contained in the following TABLE A ABatement 1 Abreviation 2 Action 3 Accessory vid. Principal 4 Accompt 5 Acquittance 6 Addition 7 Adjournment 8 Administration and Administrators 9 Admission 10 Admiralty 11 Affidavit 12 Alien 13 Amendment 14 Amercement 15 Amoveas manum 16 Annuity 17 Apparance 18 Appeal 19 Appendant and Appurtenant 20 Arraignment 21 Arbitrator 22 Arbitrary 23 Arrest 24 Arrest of Iudgements vid. Iudgements 25 Assets 26 Assise 27 Assignment 28 Assumpsit vid. Promise 29 Attachment 30 Attaint 31 Attorney and Attornment 32 Audita querela 33 Auditor vid. Arbitrator 34 Averment 35 Authority 36 Antient demesne 37 Award or Arbitration 38 B BAnkrupt 1 Baron and Feme 2 Bargain and Sale 3 Bastard 4 Beggar vid. Vagrant 5 Bayl 6 Bailif 7 Breach vid. Promise 8 Byâ—law vid. Law 9 C CApias 1 Case 2 Certificate 3 Certainty and Incertainty 4 Certiorari 5 Cestuy que use 6 Champerty 7 Challenge 8 Chancery 9 Chappel 10 Charges 11 Chattel 12 Clergy 13 Common and Commoner 14 Commissions and Commissioners 15 Commitment vid. Imprisonment 16 Common right vid. right 17 Consession 18 Condition 19 Confession 20 Consent 21 Consideration 22 Conspiracy 23 Construction 24 Contempt 25 Continuance 26 Contract 27 Copyhold and Copyholder 28 Copy 29 Corporation 30 Costs 31 Covenant 32 Courts 33 Custom 34 D DAmages 1 Date vid Tyme 2 Declaration 3 Decree 4 Deed 5 Delivery vid. Deed 6 Demand 7 Demurrer 8 Denison and Denisation 9 Departure 10 Depopulation 11 Devastavit 12 Devise 13 Debt 14 Descent 15 Discharge 16 Discontinuance 17 Discretion 18 Discription 19 Disfranchisement 20 Dispensation 21 Disseisor and Disseisin 16 Distress 22 Distringas 23 Destruction vid. Extinguishment 24 Donative 25 Dower 26 E EIectione firmae 1 Election 2 Elegit 3 Endictment 4 Engagement 5 Engrossing 6 Enquiry 7 Enrollment 8 Equity 9 Error 10 Escape 11 Estople 12 Estreate 13 Evidence 14 Examination 15 Executor 16 Execution 17 Exposition vid. Interpretation 18 Extent 19
remedy for the damage he suffred in the losse of his Credit and the damage in his Trade for in the former Action he recovered no damages for that for the Iury never took that into their consideration for they had no power to take any damages into their consideration which happened after the Trespass done for which the Action was brought but only for the breaking open of the Shop and the taking away of his Goods and although he might at the first have brought his Action upon the case as he hath now done yet he was not commpellable thereto but had his Election to bring either an Action upon his case or an Action of Trespass as should most make for his advantage Election of Actions for this Election of Action belongs to every subject as his birth right and he is not to be hindred from it Adjournatur Remington and Kingerby Mich. 18 Car. rot 72. REmington grants a rent out of certain Lands to Fawne with a clause of distress Error upon a Judgement in an Annuity in the Common pleaâ— and a nomine poenae in the deed for the non payment thereof according to the time lymited the rent is behind after the time lymited by the nomine poenae Fawne brings a writ of Annuity in the Common Pleas for the Arrerages of the Annuity and for the moneys due upon the nomine poenae and hath Iudgement Remington brings his writ of Error in this Court to reverse this Iudgement and Assignes for Error that the writ of Annuity did not lie for the nomine poenae though it did for the rent for though it was in the Power and Election of Fawne to charge either the land out of which the rent was to issue with the rent behind by distress and so to make it a rent charge or else to bring his writ of Annuity for it against Remington and so to charge his person yet he had no such Power for the nomine poenae because it was in the nature of a rent and was necessarily to issue out of the Land Nomiâ—e yoe 1 ae and not to be charged upon the Person and it was further alleged that a nomine poenae was an uncertain thing and comes not within the Statute of 21 H. 8. touching Avowries as a rent charge doth which is certain Another exception was that it appears notin the Record that Fawne did make a good demand of this nomine poenae upon the Land out of which the rent was issuing as he ought to have done before he could bring an Action for it for though there do appear to be a demand yet if it appear not to be a legal demand it is Null and the party shall take no benefit by it Adjourned Nuls and Cheney 21 Car. B. R. AN Action of the case was brought for these words Arrest of Iudgement in in Action upon the case I do accuse you to be a Witch and require you to be searched and a verdict was given for the Plaintiff the Defendant moves in Arrest of Iudgement that the words are not actionable because it is not averred that the party accused had done any hurt to Cattell or otherwise or hath had any Communication wit the Devill And so the Court held because the words spoken did not bring the Party of whom they were spoken within the Statute of 10 Jac concerning Witch-Craft Wingfield and Sherwood VVIngfield brings an Action of Covenant against Sherwood his Lessee for yeers Error upon a Iudgement in an Action of Covenant and declares that he had Covenanted by indenture that hee would not cut down more tymber growing upon the lands demised than sufficient for needful and necessary reparations of the houses and buildings let unto him and for breach Assigns that he had cut down tymber to the value of ten pounds and had converted them to his proper use and upon this hath a Verdict and a Iudgement against him Sherwood brings a writ of Error in this Court to reverse this Iudgment and Assigns for Error that there was variance between the Covenant expressed in the lease and the Covenant set forth in the declaration whereupon the breach was assigned and so the Iudgement was not given upon a breach of the Covenant expressed in the lease viz. That he should not cut down more tymber than was necessary for reparations for by this breach the Plaintiff supposeth that the Defendant had Covenanted not to cut down tymber to employ to his own use which is not the Covenant expressed in the lease but another And though the Defendant had cut down tymber and converted it to his own use Covenant this was not a breach of the Covenant expressed in the Indenture except it be averred that he cut down more than was necessary for reparations and converted it to his own use and for this Error the Iudgement was reversed Whitwell and Short Trin. 21. Carl. rot 227. WHitwell brought an Action of Trespass for assaulting beating Arrest of Iudgement in an Action of Trespasse and wounding him against fowr several persons three of them plead not guilty and are found guilty and the fourth pleads not guilty to part and iustifies for the rest viz. The wounding and is found guilty as to the wounding only yet the verdict was fond generally for the Plaintiff and intire damages assessed and Iudgement given and a writ of Error was brought and the Error assigned was that the damages ought not to be entire against all because that the fourth person was only found guilty of part of the trespass to wit the wounding and therefore as to him the damages ought to have been severed in relation only to the wounding and not as it is for so damages should be given twice for the same thing Several damages First against the three and then against the fourth which the Court granted and reversed the Iudgement VVard and Coggin Pasc 22 Car. rot 257. VVArd brings an Action of debt in the Common pleas against Coggin Error upon an action of Debt and declares that the Defendant in consideration that he the Plaintiff at the request of the Defendant had sold certain wares to I. S. did assume and promise to him the Plantiff that he would pay such a sum of money for them and for non payment accordingly he brings his Action and hath a Verdict and Iudgement The Defendant brings his writ of Error in this Court to reverse this Iudgement and Assigns for Error That an Action of debt lyes not in this case because the debt which the Defendant promised to pay and for which the Action is brought was raised and became a duty before the promise made for the payment of it and so an Action of debt cannot be grounded for it on the promise And the words in the declaration do sound meerly upon a promise upon which a good consideration for an Action of the case may be grounded Case but not to bring an
the goods were found by the Baron and Feme and were converted ad usum suum whereas it ought to be in the plural number to wit ad usum eorum or ad usum of Pew and his wife for as it was it supposed the Conversion to be made only by the Husband which is contrary to the Action it self which is brought against both Upon this Iudgement was stayed till the other should move Long and Bennet 23 Car. Banc. Reg. LOng brings an Action upon the Case against Bennet and declares that he would not suffer him to take unum Acrum ligni which he had sold to him in such a place Arrest of Iudgement in an Action upon the Case After a Verdict for the Plaintiff it was moved in Arrest of Iudgement that the Declaration ought to have been unum Acrum bosci and not ligni for that was uncertain The Court said they would Advise of the exception Declaration because it was in an Action of the Case The same Term Iudgement was given because Damages only were to be recovered and the words used were but inducements to describe the thing for which Damages only were demanded yet it might have been more properly expressed Barker and Martyn Pasc 23 Car. Banc. Reg. THe Plaintiff brings an Action of Trespasse Arrest of Iudgement in an Actâ—on of Trespass and declares against the Defendant for breaking his house and taking away quinque Instrumenta ferrea Anglice Fetters and a verdict was for the Plaintiff It was moved in Arrest of Iudgement that the word Instrumentum is not a word that signifies Fetters but that it is so general a word that it may expresse any other thing as well and that the Anglice joyned with it to interpret what it means cannot help it because there is a proper Latin word which might and ought to have been used to expresse Fetters by Rolle Iustice said that by the Statute all pleadings ought to be in Latine Pleadings and every particular thing therein ought to be expressed by a Latin word if there be a proper Latin word for it as here there is and therefore the proper Latin word being not used but another which cannot signifie the thing the Anglice doth no good but part of the Declaration shall be judged to be in English and so it cannot be good And judgement thereupon was stayed till the other sould move Curtice and Columbine Pasc 23. Car. Banc. Reg. Mich. 22 Car. rot 433. CUrtice brings an Action upon the Case against Columbine upon an Assumpsit by paroll to find meat drink lodging Error to reverse a Iudgement in an Action upon an Assumpsiâ—â— c. for the Plaintiff and to teach him the trade of a mercer This agreemet was afterwards by consent of both partyes put into writing Vpon the tryal the Plaintiff obteins a Verdict upon the paroll agreement and hath Iudgement thereupon The Defendant brings his Writ of Error in this Court and Assignes for Error that there was no Assumpsit declared upon or proved sufficient to warrant the Verdict and Iudgement because that by reducing the Agreement to writing the paroll agreement became ipso facto void and so no Action could be brought upon it but it ought to have been brought upon the Agreement expressed in the deed and the issue ought to have been joyned upon that and not upon the verball Agreement which is void The rule of Court was to shew cause why Iudgement should not be reversed Barker and Martin Pasc 23 Car. B. R. BArker brings an Action of Trespass for an Assault and Battery against Martin simul cum Arrest of Iudgement in Trespasse c. and hath a Verdict against him It was moved in Arrest of Iudgement that the Action ought to have been brought particularly against the other Trespassors together with the Defendant and not against the Defendant in particular with a general simul cum against the rest which is uncertain and signifies nothing against the rest and the rather because the Action is commenced by bill and not by original although it could not be good though it were by original but it was said by Rolle Iustice that it may be the Plaintiff could not Arrest the other Trespassors Trespasse and that he will do it when he can and that he may well proceed against them at divers times as he can take them but that whensoever he shall have had satisfaction for the Trespass done him from any one of them he cannot proceed against any of the rest and it was ruled that Iudgement should be entred Cook and Allen. Pasc 23 Car. Banc. Reg. A Iudgement given in an inferior Court was reversed in this Court Iudgement reversed because the Venire was ill inferior Court Common pleas because the Venire was Venire facias c. and did not shew from what place the Venire should bee which by Rolle Iustice ought to have been expressed at large it being in an inferior Court and not with an c. although the use of the Common pleas be to make the Venire short with an c. The King and Holland Entred 16 Car. Argued Pasc 23 Car. Banc. Reg. THe case was in effect this An argument upon a special Veâ—dict A Copyhold was surrendred to I. S. in trust that Holland an Alien should take the profits thereof to his own use and benefit upon this an inquisition was taken for the King and this matter found whereupon the lands were seised into the Kings hands and upon a tryall concerning these lands a special Verdict was found comprising the aforesaid matter The case was argued against the Kings Title by Mountague of the Middle Temple and for the Kings title by Hales of Lincolnes Inn. The substance of Mountagues Argument was 1. To consider the nature of the trust 2. The nature of the land out of which the trust was raised and for the first he held because it was a trust for an Alien to take the profits of the land and in that the Alien had no estate in the land therefore the King could not have it as he might have had the land if the Alien had had any Estate in it and he said that this trust was a thing only in Action and lies in privity and not to be seised upon by another and said a Villein was a parallel Person in law to an Alien in respect of purchasing of lands and had a Copihold been surrendred thus in trust for a Villein the Lord should not have seised it and this is but a trust not Executed which is in the nature of a use at the Common law and not as it is now by the Statute besides this trust is raised out of Copyhold lands and therefore the King cannot seise the lands which the Alien hath not for if he should the Lord of whom the land is held would be preiudiced and he cited Beverlyes case 4. rep 126 and a case in 23 Eliz
Hales on the other side Argued that the King shall have the trust and laid these two grounds 1. That there may be a trust raised upon the surrender of a Copyhold and 2ly that the surrender settles the trust in the Alien and cited 11 H. 4.26 and he said these things were considerable 1. Whether the King shall have any thing and what he shall have 2. Whether he shall have a use for an Alien at the Common law or a trust 3. Whether he shall have a trust raised out of a use And for the first he said that the trust was not a thing meerly in Action but an hereditament and partly in possession and cited Cooks Institutes 469. and said the reason why an Alien may not purchase lands is because that this Kingdom might not be impoverished thereby by transporting the revenues of the land into a forein Country and putting a part of it under the subjection of a forein Prince and the same reason comes to the case in question and therefore is not to be suffered and every Alien that purchaseth is said to purchase to the use of the King and so shall it be in this case and although a thing meerly in Action is not transferable to a Common person yet is it transferrable to the King but this case is stronger for the King for here is not a thing meerly in Action but mixed with an interest and it is no reason but that the law which was made to meet with the subtility of such Alien purchasors should take place here and it cannot be said that that law was made to give remedy to the King for that he had before and a Feoffment now made in trust for an Alien is all one with a use at the Common law and he cited 19. Jac. that trusts made to St. Iohn Daccombe of Annuityes for the Lord Summersett attainted of Treason were adjudged to be forfeited and he held Daccombe that there is no difference between a trust raised out of a Copyhold and other lands and if he hath an interest here in the profits the seisure is good though he have no interest in the land for the land may be seised by the profits 5 H. 5. fol. 9. Title But Rolle Iustice demanded of Hales how the King shall be intitled to the profits of the land where he is not intitled to the land it self and said that the Chancery cannot compell one to Execute a trust for an Alien Chancery and that a trust was invented only to avoid the Statute of uses and said that a trust is not a thing in Action Trust but may be an inheritance or a Chatell as the case falls out Adjourned postea White and Pynder Pasc 23 Car. Banc. reg Mich. 22 Car. rot 440. IN an Action of Trover and Conversion Demurrer upon an evidence there was a demurrer joyned upon the evidence and thereupon the Court directed the Iury to find damages for the Plaintiff if upon the argument of the demurrer the law should be adjudged for him and then the parties desired the Iury might be discharged and referred the matter to the Iudges to determine the law upon the evidence In this case Rolle Iustice took this difference to wit between pleading of a Record Record and giving a Record in evidence to a Iury. Plea If it be pleaded it must be sub pede sigilli or else the Iudges cannot judge of it But if it be given in evidence though it be not sub pede sigilli the Iury may find it Evidence if they have other good matter of inducement to prove it And the partyes in this case were advised by the Court for their own expedition to let there to be issued a venire facias de novo and to waive the demurrer upon the evidence because it was not good nor could bring the matter in question before them that they might determine it for one party saith there is a writ and the other saith there is not a writ which is bare matter of fact and not for us to determine but for a Iury and the demurrer ought to have been whether the writ be good or whether it be bad and should have admitted that there was a writ tyel quel and then had the whole matter come legally before us to wit whether the evidence given to the Iury be sufficient for them to find a verdict for the Plaintiff upon the issue joyned or not But the Court will advise Hamond and Kingsmill Pasc 23 Car. Banc. Reg. HAmond brings an Action upon the case against Kingsmill for these words Arrest of Iudgement in an Action of the Case for words spoken of him in relation as he is a Iustice of peace to wit Mr. Hamond did put in of his own head these words in an examination taken by him viz. I. S. did steal twenty sheep of such a mans and for speaking these other words of him Hamond was a debauched man and is not fit to be a Iustice of peace and hath a verdict against the defendant who moves in Arrest of Iudgement that neither the former nor the latter words were actionable for for the former words that he did of his own head put in words into the examination are words uncertain and dubious what is meant by them whether that he added any thing of his own invention to the examination which was not confessed by the examinant or that he only put the substance of the matter confessed into words of his own endicting and if he did no more that was justifiable and so it shall be taken here rather than in a worse and strained construction to ground an Action upon and for the second words to say that he was a debauched man and not worthy to be a Iustice of peace they cannot be scandalous for they are spoken of him in relation to what he was in time past before he was a Iustice of peace and not as he was at the time of the speaking and it is no scandall to say a man hath been debauched for it may be he is now otherwayes But for the first words it was answered by the Councel on the other side that they were actionable for they must be taken according to Common construction viz. that he had added not only words of his own invention to the examination but the matter it self expressed in those words which was not confessed by the examinant And as to the latter words it was answered they were also Actionable and a Case was cited where Iudgement was given against the Defendant for saying of one that he was a corrupt Iudge Rolle Iustice was of opinion Case that the first words were Actionable but not the second for words saith he ought to be taken according to usuall and Common construction though they are not to be strained for otherwise a man may be abused by subtility and shall have no remedy and Iudgement may be given
E. s Brook Covenant 4. was cited Next the Plea doth not say that the Armed men with Prince Rupert were Aliens or Enemies of the King Allen. Enemy but only that Prince Rupert was so But to this exception Roll Iustice answered that they shall be so intended if they be his Army with which he invaded the Land Plea Another exception was taken that the Plea gives no answer at all for one Quarters rent demanded which incurred after the time that he was kept out by Prince Rupert The Councel for the Defendant in defence of the Plea urged that it was not necessary to aver that the Army with Prince Rupert were Aliens and cited 3 H. 6. 61. and the Councel took a difference between an Enemy and a Rebel Rebel and though in the case of a Rebellion this might not be a good Plea yet in case of an Invasion he conceived it was Remedy because he could have no remedy against the party and resembled this case to cases of like nature cited out of 9 E. 3. 7. 40 E. 3 6. 33 H. 6. 1. VVaste and said that where waste is done in the Lands let for years by one again whom the Lessee can have no remedy over there the Lessée for years is not chargeable for the waste except he be bound by a particular Covenant to keep the Lands let without waste Also by the Law of Reason it seems the Defendant in our case ought not to be charged with the rent because he could not enjoy that that was let to him and it was no fault of his own that he could not Civil law Canon Moral Innundation and the Civil-law and Canon-law and Moral Authors do confirm this and Dyer 56. 11. Ass 13. were cited and it was said there is no difference between an innundation and this invasion and had the Lands been surrounded by water the Lessee should not have been chargeable for the rent during that time neither as I conceive shall he be here Next consider the nature of the reservation 10. Rep. 1 28. Rent Payment A rent is not to be paid untill it may be intended that the Lessee might have received the profit of the thing for which the rent is to be paid 27 E. 3.81 8 H. 4.6 Fitzh Execution 146.9 E. 3.16 neither by the Martial law is the Defendant chargeable Martial Law Law of Nature Covenant and that Law is the Law of Nature as well as of Nations But Roll Iustice answered that the Plea was not good for he hath not pleaded that the Army were Aliens and unknown as he ought to have done and the pleading that it was hostilis exercitus makes not the Plea more certain than before and if the Tenant for years covenant to pay rent though the Lands let him be surrounded with water yet he is chargeable with the rent much more here Therefore let the Plaintiff take his Iudgement Fremling and Clutherbook Mich. 23 Car. Banc. Reg. FRemling and his Wise Arest of Judgment in Trover and Conversion Executrix of A. B. bring an Action of Trover and Conversion against Clutherbook for Goods of the Testators found and converted by the Defendant and obtained a verdict against him The Defendant moved in arrest of Iudgement and took these Exceptions 1. That the Declaration was of a joynt possession of Goods of the Husband and Wife and dammages are given to the Husband and Wife whereas the Goods properly belong to the Wife only as an Executrix and not to the Husband and Wife Possession 2ly It doth not set forth how the Feme came to the possession of the Goods But to this Roll Iustice answered that the possession of the Wife Dammages as Executrix was also the possession of her Husband and that the dammages recovered shall be to the estate of the Testatour and so may concern them both And for the second exception this being a possessary Action only it is not necessary to shew how the possession of the Goods was gained Stayed till the other should move Parmiter and Cressy Mich. 23 Car. Banc. Reg. PArmiter brings an Action upon the case upon an Assumpsit and declares Arest of Iudgment in an Indebitatus Astumpsit that the Defendant in consideration that the Plaintiff had sold and delivered unto him such a number of pieces of Stuffs the Defenant did assume and promise to the Plaintiff to deliver unto him the value of the Stuffs in such Pipes of Wine lying in Bradgates Cellar in London as the Plaintiff should make choise of and for not performing the same brings this Action The Plaintiff obtains a verdict The Defendant moves in arrest of Iudgement and shews these causes 1. That the Plaintiff doth not aver in his Declaration that he made any election of the Pipes of Wine Averment and before such election the Defendant was not bound to deliver them nay it was impossible for him to perform the agreement before the election 2ly Election The Plaintiff doth not set forth that he made his election where the Wine was which he ought to have done because of the insupportableness of the commodity to be brought to him to make his choice The Court held that here ought to be a special request made to deliver the Wines Request special because it is upon a Contract and an Action of Debt lies not for them and thereupon arrested the Iudgement till the Plaintiff should move The same Term Iudgement was given against the Plaintiff Quod nil capiat per billam Mich. 23 Car. Banc. Reg. THe Plaintiff brings an Action of the Case against the Defendant Arest of Iudgment in an action upon the Case forwords Words Tryal False Doctria for speaking these words against him being a Minister He is an Adulterer Whoremaster Drunkard a common Swearer and a Preacher of false Doctrine The Plaintiff hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actionable because the matter expressed by them is merely Ecclesiastical and not tryable at the Common law and it was said that a man may preach false Doctrine and not be punished for it if he be not a beneficed man and it doth not appear here Heresie that the Plaintiff had any living and besides it is not said he was a Preacher of heretical Doctrine but of false Doctrine which words are more ambiguous The judgement was stayed till the Plaintiff should move Mack and Cubitt Mich. 23 Car. Banc. Reg. Pasc 23 Car. rot Q. MAck brought an Action upon the case against Cubitt for speaking these words of him Arest of Iudgment in an action upon the Case for words You are a branded Rogue and have held up your hand at the Bar VVords and deserve to be hanged and shall be hanged The Plaintiff hath a Verdict The Defendant moves in arrest of Iudgement that the words were not actionable for they are all but words
Iudgement of Law it is presumed that the Covenant shall not be broken and that it shall not be respected in regard of the incertainty whether it shall be broken or no but the Law takes notice of the Will and it is of temporal conusans 2 Rich. 3. 11 H. 7. f. 12. and it takes notice of a legacie to try the right of it and to discharge it and the Executor here is compellable to pay the legacies and cannot refuse it neither by the Common law nor by the Spiritual law Covenant but it is objected that it is inconvenient that one shall avoid his own Covenant by his own devise To this I answer he might have done it in his life by giving away all his goods and 2ly There shall not be intended to be fraud in the Will and there are more inconveniences of our part in not paying the Legacies than on their part by paying them for by this means men shall have no power to dispose of their own Goods by Will by reason of Covenants in Leases and Déeds made by them and the Spiritual Court cannot compell a Legatée to put in security for his Legacy Security as is surmised Adjourned to the next Term to give Iudgement Mich. 23 Car. Banc. Reg. THe Court was moved to deliver their opinion in a Case formerly moved VVhether an Attornment good or not wherein the Question was whether an Attornment made by a Lessée for years the same day that the rent was due to be paid upon his Lease to him that had purchased the reversion of the Land let unto him and for which the Purchaser had brought his Action Attornment be a good Attornment Roll Iustice said that it is a good Attornment by the averment made and by the finding of the Iury and that Iudgement ought to be for the Plaintiff Bacon Iustice agrees and said the Attornment shall be intended to be before Sun set and not afterwards Therefore let the Plaintiff take his Iudgement Parmiter against Cressey Mich. 23 Car. Banc Reg. THe Defendants Councel upon a former rule of Court to shew cause Cause why Iudgement should not be given in an Action upon an Assumpsit Averment Notice Request offered for cause why the Plaintiff should not have Iudgement 1. Because the Plaintiff had not averred that he did make any election of the Wines that the Defendant was to deliver unto him 2ly He doth not aver that he gave the Defendant any notice of his election and there being a Condition precedent to be performed on the Plaintiffs part implyed the Defendant cannot perform the Bargain without notice of that performance 2ly Here is no good request expressed either in substance or circumstance for for the circumstance there is but two daies to do it in which it cannot be well intended it could be done 2ly It is said he did not deliver vinum praedictum which is an incertain implication of a Request for the word deliberare is not a proper term to express the Request and the verdict doth not help it Bacon Iustice There ought to be an election by the Plaintiff but the Defedant ought first to shew the Wines and it was of his part to have appointed the time when he would shew them Roll Iustice The Promise and Request was at Norwitch and it was sufficient for the Plaintiff to make the Request there but the Defendant ought to shew the Plaintiff the Wines Election without which the Plaintiff can make no election and the substance of the Declaration is to this intent Iudgement was given for the Plaintiff Mich. 23 Car. Banc. Reg. BY the rule of the Court VVâ—â— a Prohibition should not be granted this day cause was offered to be shewn why a Prohibition should not be granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half-blood when there was a Brother of the whole-blood who sued for them and was denyed The cause shewed was that it is in the power of the Ordinary to grant Administration either to the Brother of the whole-blood or to the Sister of the half-blood at his election because they are in equal degrée of kin to the Intestate And to this the Court agreed But Bacon Justice said that in the Case at the Bur Letters of Administration are granted to the Husband and his Wife and so to one viz. the Husband who is no kin at all to the Intestate but a Stranger and if he survive his Wife he shall have all the Goods and all the kindred will be defrauded which is not reasonable and therefore the Administration is not good And for this reason a Prohibition was granted Mich. 23 Car. Banc. Reg. IT was moved in arrest of Iudgement Arrest of Iudgement in Trover and Conversion that the Plaintiff had declared of the Trover Conversson of a cetrain number expressed in the Declaration of pieces panni lanii Anglice of red yellow and black Coath which is incertain and cannot be used as it is here to expresse Cloaths of divers colours for panni lanii signifies only wollen Cloaths But Bacon Iustice said all is but wollen Cloath though they be of divers colours and therefore it is good enough Hodsden the Secondary said sometimes the colours are used to be expressed and sometimes not Bacon It is better to express the Colours than not yet it is good enough without the expressing of them Therefore let the Plaintiff take his Iudgement Willison and Crow Mich. 23 Car. Banc. Reg. VVillison brought an Action upon the Case against Crow Arrest of Iudgment in an action for words for speaking these words of him You are a bankrupt Skrub and hath a verdict it was moved in arrest of Iudgement that the words are not actionable because they are Adjective words and so are not positive enough to ground an Action But the Court held they were actionable for the word Banckrupt in it self was not an Adjective and the joyning of it with Skrub made it not so but it should be understood as much as to say You are a Skrub and also a Banckrupt And judgement was given accordingly The King against Holland Hill 23 Car. Banc. Reg. THe Court delivered their opinions in the Case betwéen the King and Holland formerly argued And first Bacon Iustice said Iudgement given in the Case between the King and Holland that there can be no Iudgement for there is a mis-tryal in it for first there is no Venire facias and secondly there is a discontinuance because the Venire should be to retorn duodecem probos legales homines quorum quilibet habet 40 s. lands by the year at the least it is every of whom having 4 l. lands by the year which is contrary to the direction of the Statute To this Roll answered that he held the Venire to be good and so the tryal good for if the Iury hath every of them 4 l. a year in
declared and the Defendant hath emparled and after emparlance he pleads that the lands are antient demean Plea which is a dillatory plea. Roll Iustice It is a good plea after imparlance for it goes in bar of the Action it self and not in abatement of the Writ The King and Holland Hill 23 Car. Banc. Reg. ROll Iustice said Opinion of the Court for restitution in this Court not in Chancery Iudgement Restitution that in this case formerly argued restitution ought to be given to the party for the same Iudgement shall be given here which should be given in Chancery and all the Record is here before us and they in Chancery cannot do any thing in the cause for they have nothing before them And it appears to us that the Declaration was insufficient and so we cannot give Iudgement for the Plaintiff but against him notwithstanding the inquisition found for the King Therefore let the party have restitution except cause shewed the first Friday in the next Term. Hill 23 Car. Banc. Reg. THe Court was moved to discharge a prisoner brought to the Bar For discharge of a prisoner by a habeas Corpus committed by the Committee of plundred Ministers and these exceptions were taken to the retorn 1. There is no time expressed how long the party shall stand committed Commitment so he is committed without limitation of time which is not legall 2ly He is committed by the name of Mr. Smith and his name of baptism is omitted which ought not to be Vpon these exceptions the Court held the commitment illegal and discharged the party Weekes and VVeekes Hill 23 Car. Banc. Reg. VPon the retorn of a certiorari to remove orders made by Commissioners of Sewers Against a retorn of orders of commissioners of Sewers Retorn Notice It was moved that the retorn was not good because it was not made by the partyes to whom the certiorari was directed for it was directed to the Commissioners and the retorn is made by the Clark of the Sewers But the Court said the retorn was good enough for all the retorns are so and the Clark is an officer of whom the Law takes notice of and it belongs to him to do it Pasc â—4 Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in an inferiour court in an Action upon the case Error to reverse a Iudgement in an inferior court in an Action upon the case Retorn Day in court and the Error assigned was that the habeas corpus was not well retorned for it is not retorned to be in omnibus servitum et executum as it ought to be and as the usual form is Maynard of Councel against the Writ of Error argued that it was well retorned notwithstanding those words were omitted because the Iury did appear full and no issues were lost and the Iury have day by the roll 3 H. 7. 14. per Hussey and 9 E. 4. 14. it is made a question but not resolved 2ly Though it be a Sisp yet it is within the Statute of 21. Iac. and is helped by it for that Statute extends to more than Writs as may appear by the Statute and the Statute of 18 Eliz. Bill Original writ recâ—ipt touching original Writs extends to faults of bills although original Writs are only named for a bill is the same in substance with a Writ so here the Writ and precept are of the same substance 3ly it is the intent of the Statute and the Statute shall be taken by equity Hill 13. Iac. in this Court in Gregory and Brookes case this question was stirred but not resolved and Hobart denyes the 5th report f. 61. to be Law and there is no proceedings properly in superiour Courts by plaint Roll Iustice The Statute extends not to point of equity in inferior Courts for their proceedings are not so regular as the proceedings in the high Courts here at Westminster but they are by short notes Bring us books and move it again Creswell against Ventryes Pasc 24 Car. Banc. Reg. CReswell brought an Action upon the case against Ventryes for speaking these words of him Arrest of Iudgment in an action upon the Case for words Thou didst and dost receive thief stollen goods witnesse a feather bed tick in thy house and the cloath which thy mans suit was made of and thou knewest they were stollen The Plaintiff hath a verdict the Defendant moves in arrest of Iudgement that the words are not actioanble for one may receive stollen goods and yet not be guilty of Felony Becon Iustice The receiving of stollen goods is not felony but the receiving and comforting of the Felon is Felony Felony The Iudgement was stayed till the other should move Thynn against Thynn Pasc 24 Car. Banc. Reg. THynn brings an Action against Thynn to reverse a Iudgement given in the Comon pleas in a writ of Dowr Error to reverse a Iudgement in Dowr Hales of Councel with the Defendant in the Writ of Dowr in answer to the exceptions formerly taken said that the summons was well enough retorned as it is because it was made upon some part of the land within the Vil Long quint. E. 4. 2 H. 4. 13. 39. E. 3. 7. 2ly It is not necessary to make the Proclamation Proclamation where the summons is for the Statute intends not to alter the course of the summons 2ly The words of the Statute are satisfied for the actual summons in one Vill is a summons in the other Vills 3ly The meaning of the Statute is satisfied and the mischef intended to be satisfied by the Statute Hob. 173. Allen and Walkers Case Demand For the 2d exception to the Demand he held it good enough for in a Writ of Dower a Demand needeth not to be so particular as in other Writs so is it in an Assise 11 E. 3. 18. 43 E. 3. 6. 3 Ed. 2. Dower 161. and the reason is because the Wife demands not the whole Land nor can have the Charters which concern the Land to enable her to make so precise a Demand as may be in other Writs And as to Harpers Case that is objected I answer it agrées not with our Case Regist f. 36. 16 E. 3. Fitzh Quar. Imp. 147. and it is certain enough because it is of a Rectory and not of Tithes in gross 3ly The demand of Tithes is surplusage and it is all one as to say the Rectory cum pertinentiis Then as to the Objection that one thing is twice demanded I answer it is not so â—â—aâ—ement Dammages but demanded as part of a thing demanded in the Writ and a Demand in a Writ of Dower shall not abate the Writ though one thing be twice demanded for dammages shall not be twice recovered 4 E. 3. f. 52. Mich. 9 Iac. in the Common-pleas agreed so by the whole Court In Bluers Case 8 Car. one thing was twice demanded and yet the Writ was not
Feme being a Feme Covert could have no Corn of her own for it was her Husbands Corn and so there could be no stealing of her Corn. But the Court answered that in common intendment the Corn is hers and her Husbands Corn though in legal construction it be not so and the Scandal is great although it appear that the words were spoken by a Feme covert Therefore let the plaintiff take his Iudgement except cause be shewn to the contrary Iudgement was given the same Term because the last words were held to be accumulative Mich. 24 Car. Banc. Reg. THe Clark of the Errors in the Common-pleas attended here upon a rule of this Court Clark of Court ought â—oâ— to move the Court. Whereupon one of the Clarks of the Court gave notice of it to the Court and prayed he might be heard But the Court answered that Councel ought to move it and not be The King against Doctor Trigg THe Court was moved for Doctor Trigg to estreate the Fine into the Exchequer which was set upon him by the Court upon his conviction upon an informaiton preferred against him upon the Statute for practising Physick in London without a licence from the College of Physicians For the estreating of a Fine Hales of Councel with the College of Physicians moves it may not be estreated for it is not necessary and here the Iudgement is not only for the King but it is tam pro rege quam pro c. Fine Estreat and so part of the Fine doth belong to the Subject and for that part the Prosecutor may have a privy Seal here to recover it Estreat but if it be estreated into the Exchequer be cannot there have it and so he shall lose his reward and therefore he desired the Fine might be respited But the Court answered we cannot respite the Kings part nor the other part for there is an execution out for the whole Fine which cannot be stayed Heyford against Hobson Mich. 24 Car. Banc. Reg. HEyford brought an Action of Trover and Conversion against Hobson in the Common-pleas for taking away and converting of divers of his Goods and Chattels particularly named Arrest of judgment in Trover and Conversion and had a verdict The Defendant moved in arrest of Iudgement that the Declaration was incertain for amongst other things the Plaintiff in his Declaration declares for the taking de duobus castoribus Anglice Hats whereas castor is not a proper word for a Hat 2ly de uno servitio argenteo Anglice one silver Salt and there is no such word for a Salt but there is another proper Latin word for it viz. salinarium 3ly De duobus catenis Anglice two silver Dishes which is no word for a Dish much less a silver Dish Roll Iustice said one may describe a thing in a Declaration Declaration if there be not a proper word to express it and if it be so described that the Iury may know what is meant by it it is well enough But let the Iudgement be here be stayed for we will advise Wood against Clemence Mich. 24 Car. Banc. Reg. THis Case formerly viz. this Term moved and spoken to touching the validity of an Award made touching the fraight of a Ship Exceptions to an award was again moved and Exceptions taken to the Award 1. That the award is repugnant in it self And 2ly It is not final and so not good The Court answered if the Award be ill as of your own shewing it is then you have no cause of Action Iudgement Submission and so you cannot have Iudgement although the Defendants bar be not good and a submission made by one for himself and another is good to bind the party that submitted But move it again and we will advise in the mean time Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible Entry after the party endicted had pleaded To quash an endictment of forcible entry and a verdict against him Roll Iustice We must not be so curious in the framing of Endictments as to quash them for every small fault and in this Case it was said by him that if one interrupt a long possession by force and the other regain it with undue means an Endictment lies not against him for this for this is but vim vi repellere and after a verdict and before Iudgement upon an Endictment of forcible entry Restitution the party ought not to move for restitution Banister against VVright Mich. 24 Car. Banc. Reg. IN a Tryal at the Bar between Banister and Wright in an Action upon the Statute of 2. Ed. 6. for not setting forth of Tithes Lands free from tithes It was said by the Court that Tithes which lye not within any Parish are due to the King and that Lands must be parcel of a Parish either by prescription or by Act of Parliament and that Lands lying within a Forest and in the hands of the King do not pay Tithes although they be within a Parish Tithes but if the Lands be dis aforested and be within a Parish they ought to pay Tithes for their not paying Tithes being in the hands of the King is but an immunity for that time only Mich. 24 Car. Banc. Reg. A Baker was presented in a Court Leet for selling Bread under weight Arrest of judgement in an action for a Fine set at a Court leet Fine Amercement Presentment and a Fine set upon him and an action brought against him for this Fine and a verdict given against him It was moved in arrest of Iudgement that the presentment upon which the Action was founded was not good and so there was no ground of Action and so there ought to be no Iudgment But Roll Iustice answered that the Action is for the Amercement which is a collateral thing and the presentment is not now to be called in question if it be only avoidable for some fault in it but it were otherwise if the presentment were utterly void But speak again to it at another time Mich. 24 Car. Banc. Reg. THe Court was moved for a Habeas Corpus for one committed at Norwitch for Treason in speaking words against the Queen For a Habeas corpus to remove a Prisoner committed for Treason Endictment Tryal because be could not be tryed there Roll Iustice answered he cannot be endicted here except the fact were done in Middlesex therefore advise with the Kings Councel and prefer a Bill of Endictment where the fact was and then you shall have a Writ ad delibrandum directed to the place where the fact was and this is at the Kings sute and the Sherif shall be allowed his charges upon his accompt or else the Iustices may try him by their Commission of oyer and terminer Smith and Hancock and others Mich. 24 Car. Banc. Reg. SMith brought an Action of Trespass against Hancock and others For a new tryal
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
are only put in agrravation of dammages 7 H. 6. f. 34. and so prayes judgement for the Plaintiff Green of Councell with the Defendant prayed the Writ might be abated Because 1. here is not any thing laid that the Defendant hath positively affirmed the Plaintiff to be a Bankrupt 2ly There are general words in the former Action namely alia enormia which words do comprehend the matter for which this Action is now brought and he denyed the differences taken by the Councell on the other side And it doth here appear to the Court that the former Action of Trespasse was brought for the same things and damages were therein given for them and it is unreasonable to punish one twice for one and the same offence and the averment is good and doth shew that both Actions are for one and the same cause and he hath recovered damages already for all the wrong he sustained and here is no conversion alleged in the Case nor is it vi et armis and the Law hates double vexation 2. H. 6. f. 54. Brook brev 397 3 H. 7. 4. Brook brev 77. and damages might well enough be recovered in the first Action for all the damages sustained 19 H. 6. f. 44. And if this Action now brought had been brought for calling the Plaintiff Bankrupt the Action would have lien but not as it is here brought and one entire Action shall never be divided to put the party to a double vexation as it is in our case 41 Ass pl. 16. Brook brev 309. â— rep Hudsons case and in the first Action the words alia enormia were purposely put in that all matters touching that Trespass might be brought in question to encrease the damages 9 E 4. Brook Tresp f. 1â—9 and so all the damages were recovered in the former Action And he agreed Laicons case put by Shafto that the Plaintiff might recover damages as well for the value of the Sheep as for the chasing of them and prayes the Writ may be abated Roll chief Iustice said it is hard to maintain Laicons case for cepit er abduxit intends that the owner hath not the Sheep again otherwise it would be if the Action had been for the driving of them only And Mr. Shafto hath taken a good ground viz. that the Actions are for severall things and the Declaration is in part but an inducement to increase the scandall and to prove it and the words alia enormia shall not be intended of collateral matter but of matter incident to the Act done And one and the same thing may give several causes of Action and one Action is not to be confounded with another Action Ierman Iustice said Laicons Case was not like this Case for the question here is whether the Plaintiff can recover damages in this second Action which he hath by intendment recovered in the former Action and he inclined that it may be so here and that there is a recovering of the same damages in divers manners for the same thing Nicholas Iustice said he may bring severall Actions although he might have joyned them both in one Ask Iustice said That one Act may be divided into divers Actions and so it is here and well enough Roll chief Iustice said the Plaintiff in this Action cannot recover damages for his Goods so that this Action is brought for another matter Therefore plead in chief if cause be not shewed to the contrary for the Action doth well lye Meers against French Hll. 1649. Banc. Reg. IN an ejectione firmae Arrest of judgement in an ejectione fiâ—â—ae and a verdict for the Plaintiff The Defendant moved in arrest of Iudgement that there is no certainty in the Declaration neither of the place nor of the quantity nor of the quality of the Land whence the Plaintiff was ejected for it is eâ—dnobus Acris fundi Anglice a hopground which is not warranted by the Latin and so it is incertain and it is also dimisit unum croftum and a peice of Land and the quantity is not expressed for it is per estimationem sive plus sive minus medietatem sive unam partem is also incertain Twisden answered it was certain enough because it is expressed by a certain name Declaration Grant But Roll chief Iustice said it is good in grants but not in a Declaration for there is required more certainty and the Anglice here doth not help it for the Anglice is not to interpret a Latin name by which it is called And the sive plus sive minus is also ill but if it had been so many Acres per estimationem it had been good Therefore advise better of it Antea Vaux and Vaux against Draper Hill 1649. Banc. sup Entred Trin. 1649. rot 1104. VAux and Vaux brought an Action upon the Case against Draper Arrest of Iudgement in an action upon the case upon a promise upon a promise and declared that the Defendant in consideration of ten pounds paid by the Plaintifs unto the Defendant did assume and promise unto the Plaintifs to procure certain Cattel of the Plaintifs taken from them by a third person to be redelivered unto them by such a time and for not performing this promise they brought their action Vpon Non assumpsit pleaded there was an issue joyned and a verdict found for the Plaintifs after this case had béen twice spoken unto The Defendant moved in arrest of Iudgment that thâ—â— Action was not well brought joyntly by the Plaintifs but that they ought to have brought two several Actions Joynt action in regard that the promise upon which the Action was founded was not an entire promise but was a several promise made to each of the Plaintifs The Councel on the other side prayed for Iudgement and said the promise was intire made to both and not several and so the Iury have found it which shall be intended to be true and if it should not be so it would be disadvantagious for the Defendant Hales said on the other side that the assumpsit is several and the acts to be done by the Defendant to the Plaintifs are several although the assumpsit sounds as a joynt assumpsit Roll chief Iustice said That the Consideration given is entire and cannot be divided and there is no inconvenience in joyning in the Action in this case but if one had brought the Action alone it might have been questionable Nicholas and Ask Iustices of the same opinion But Jerman Iustice differed and said that they are several promises viz. to deliver such Cattel severally to each of them as did belong properly to them and so there must be two several Actions But Iudgement was given for the Plaintif except better matter shewed Antea Spry against Mill. Hill 1649. Banc. sup Pasch 1649. rot 208. IN a Writ of Error brought to reverse a Iudgement given in a Trover and Conversion at Launceston in Cornwal upon a nihil dicit Error to reverse a
take a procedendo nisi causa ostensa fuerit in contrarium Antea Davis against Ockham Hill 1650. Banc. sup Mich. 1650. rot 557. DAvis brought an Action upon the Case against Ockham for speaking these words of him Demurrer to a plea in an Action for for words The knave the Apothecary that married my sister hath poysoned my Vncle and I will have him taken up again to hang him The defendant pleaded an accord betwixt him and the Plaintiff that whereas the Plaintiff had done a Trespass against him that one Trespass should be set against the other To this plea the Plaintiff demurred and Twisden said the plea was not good and cited 16 Ed. 4. f. 89. and prayed Iudgement for the Plaintiff Latch of Councell with the Defendant said that the Accord was executed on the Defendants part and therefore may be pleaded in Bar. To this Roll chief Iustice answered Bar. how have you discharged the Accord for you do not shew it Latch took Exceptions to the Plaintiffs Declaration 1. That the words set forth are not actionable for it doth not express that the Plaintiff wittingly poysoned the Defendants Vncle or that he did dye of the poyson and cited Hob. rep 8. Miles and Iacobs case and 275. Fleetwood and Caveleys case 2ly There is no Communication expressed in the Declaration to be of the Vncle and it may be spoken of another Vncle and the innuendo will not helâ— it because he may have divers Vncles Twisden answered that it is implyed in the sence of the words that he poysoned him feloniously and so consequently wittingly And 2ly He saith that he will have him digged up and so it must be intended that he dyed of the poyson Roll chief Iustice held that the words are actionable Case Bar. And 2ly That the Defendants plea in Bar is not good Ierman Iustice held the plea in Bar not good but he doubted whether the Declaration was good for it doth not appear thereby whether the party dyed of the poyson and the latter words help it not Nicholas Iustice and Ask Iustice agreed with 〈◊〉 Roll in all and thereupon the râ—le was Iudicium nisi Lundi Suivant Custodes c against Maine and Serjeant Hill 1650. Banc. sup A Ioynt Information was exhibited against Main Serjeant 2 Iustices of Peace for not enquiring of a Ryot and a verdict found against them Arrest of judgment upon an information found The Defendants move in Arrest of Iudgement and by Hales shew for cause that the information ought not to have béen joynt against them but several because their offences are several and not joynt and here one of them is acquitted and so judgement cannot be given against the other that is found guilty Roll chief Iustice answered That as an Attachment in a Prohibition is several Execution so the execution here may be several and it is not material though one be acquitted and the other found guilty Ierman Nicholas and Ask Iustices to the same purpose It was then said that it is not necessary that the next Iustices only should remove a force but all the Iustices of the County are bound to it Force And these words in the Statute viz. That the 2 next Iustices shall do it are put but for conveniency and the more speedy execution of Iustice Nicholas Iustice doubted of this Judicium nisi pro custodibus Ailet against Watless Hill 1650. Banc. sup Trin 1649. rot 200. IN an Action of Trespass and Ejectment Special Verdict in Trespass and Ejectment there was a special verdict found upon which the case fell out to be this An Infant bargains and sells land and is vouched to warranty and comes in upon the Voucher and thereupon a common recovery is had and upon this the question was whether this be such a recovery that the Infant cannot avoid by Entry Hales held it could not be avoided but did bind the Infant during his life but I could not hear his reasons Wild of Councel on the other side argued that the Infant was not bound by the recovery because as an Infant cannot alien his lands so neither can he suffer a common recovery and cited 6 rep 28. 2ly No record made by an Infant can bind him and for this he cited 26 Ed. 3. Fitz. per que serv 24.41 E. 3. f. 3.44 E. 3.10.9 Ed. 4 3â— and though it be breve Amicabile and by consent yet it binds not and 9 Car. Newports case where a recovery suffered by a Guardian was adjudged good comes not to our case and for the intended value in a recovery that is not material to make it binding for it is but a fiction and not a real value Roll chief Iustice demanded whether a fine be not breve amicabile Fine Error Recovery and yet he said that that binds an Infant until it be avoided by writ of Error And he said that the Infant is not bound here but the question is whether he can avoid the recovery by Entry or must bring a writ of Error to avoid it And he held that a recovery suffered by a Guardian is not good notwithstanding the opinion in Newports case Hales replyed that the recovery here is binding till it be avoided by a writ of Error and that the Infant cannot avoid it by his Entry though an Infant may avoid a deed by Entry although it be enrolled And here appears no consent of the parties and the party cannot shew it and here is a formal judgement given which binds till it be reversed by a writ of Error Roll chief Iustice Entry An Infant may avoid a matter in paiis by Entry but not a matter of Record and here is a proper way by the law to avoid it namely by a writ of Error which is also matter of record and of as high a nature Ierman Nicholas and Ask Iustices to the same effect and so judgement pro Defendente nisi Powell against Hopkins Hill 1650. Banc. sup Hill 23 Car. rot 787. IVdgement was given in an Action of Trover and Conversion for the Plaintif The Defendant brought a writ of Error Error to reverse a judgement given in a Trover and Conversion and the Exception taken was to the Declaration wherein the Plaintif among other things declared of a Trover de ducentis ponderibus aeris ducentis ponderibus plumbi Anglice of Brass and Lead and there wants an Anglice for the ponderibus so it is uncertain what the quantity of either are And upon this Exception the rule was that the Iudgement should be reversed nisi c. Denton against Caket Hill 1650. Banc. sup Trin. 1650. rot 150. DEnton brought an Action upon the Case against Caket for speaking these words Demurrer to a plea in Bar of an Action upon the case for words He and his fellows have stollen her having speech of a Cow of the Defendants and I do charge him with flat felony By reason of which words
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
his promise to take notice of her coming Roll chief Iustice answered if all the Declaration be considered together here is a good consideration expressed for this is not like to the case of tender of money And the words obtulit se in maritagium conjungi shall be intended to the Defendant himself Consideration and then he must néeds have notice of her coming thither D ves of Counsel with the Defendant took this Exception that the Plaintif in setting forth her offer of mariage doth not say tunc et ibidem soe there is neither place nor time set forth Roll chief Iustice answered it is after a Verdict and you move this Exception too late Advantage and you have now lost the advantage of taking it If there be a sufficient notice it is well if not it is not good for there ought to be a notice for she may come to his house in private so that he cannot take notice of her coming thither Notice The question only is this whether notice be sufficiently and necessarily imployed in the words obtulit se in maritagium conjungi Curia advisare vult Postea King against Weeden Pasch 1651. Banc. sup IN Arrest of Iudgement upon a Verdict found for the Plaintif in an Action upon the Case upon an Assumpsit brought by an Administrator Arrest of Iudgement in an Action upon the Case 2 Exceptions were taken 1. That the Plaintif did not shew his Letters of Administration and 2ly That there is no good consideration set forth to ground the Assumpsit upon for it is that the Defendant did promise that if the Plaintif would forbear to take his course for the monies he would pay them which words are uncertain and he should have said his course in Law and not generally his course Roll chief Iustice to the 1 answered It is not necessary here to shew the Letters of Administration for they are but inducements to the Actio◠and not the ground of it And for the second exception the consideration is certainly enough set forth Consideration although the Latine be not very proper Therefore let the Plaintif have his judgement nisi c. Sawyer against Russel Pasc 1651. Banc. sup SAwyer brought an Action upon the case against Russel Arrest of Iudgement in an Action upon the Case for taking away certain Cattel and obtained a Verdict against the Defendant The Defendant moved in Arrest of Iudgement and took exception to the Plaintifs Declaration for the incertainty thereof The Plaintif declared of a Trover and Conversion de ducentis Averiis viz. bobus juvencis Anglice Steers Iuvencis Anglice Runts Iuvencis Anglice Heifers which is uncertain and so judgement cannot be given for it is uncertain for what number of each of the Steers Runts and Heifers judgement should be given Roll chief Iustice enclined that it is certain enough Averment and that the number may be averred and the Cattel are all of one kind yet The Court would advise afterward it was ruled Iudicium nisi Shedlock and La. Pere Pasc 1651. Banc. sup Hill 1650. rot 211. IN a Writ of Error brought to reverse a Iudgement given in an inferior Court The Error assigned was Error to reverse a judgment in an interior Court Iudgement Error Abatement that the Iudgement is quod recuperare debeat whereas it ought to be recuperare debet Roll chief Iustice answered That if it be so there is no Iudgement given and so no Writ of Error lies therefore let the writ be abated For the Writ of Error supposeth a Iudgement for the words of it are si judicium redditum sit and in 3. Iacobi in the Exchequer Chamber the very case was adjudged so Collins against Sillye Pasc 1651 Banc. sup Hill 1650. rot 302. THe Case was this Demurrer upon an entry upon Lessee for years Lessée for years by indenture covenants with the Lessor that he will not assign over the land let nor any part thereof without the consent of the Lessor The Lessor during the term enters into part of the land let the Lessee assigns over the remainder of his term in the rest of the land without the consent of the Lessor and the Lessor thereupon brings an Action of Covenant against the Lessee the question was whether it did lye in regard that the Lessor had entred into part of the land Covenant Roll chief Iustice held that the Covenant was collateral and therefore it is broken by the assignment notwithstanding the Lessors entry into part of the land And the rule was judicium nisi Custodes against Monger Pasc 1651. MOnger was endicted for forgeing a presentment to a Iury in a Court held before Commissioners of sewers Exceptions to the setting forth of a presentment against Monger for casting of 10 loads of soil into the Thames Exceptions were taken that it doth not appear by the endictment by what authority the Court was held where the presentment was found 2ly It is not averred that the presentment did present the casting in the soil to be any annoyance 3ly There doth not appear to be any process in the case against the party upon the presentment To the first it was answered by councell on the other side that it is not necessary to shew by what authority the Court was held for their Authority is by Act of Parliament and it is a publique Act to be taken notice of Roll the chief Iustice answered That it is a private Act made for the City of London and concerned the Lord Maior though part of it be publique Statute for part of an Act may be publique and another part of it private and of that part which is private we are not bound to take notice and it was here said that in criminal causes Errors in proceedings are not helped by a verdict Notice Roll took an exception that the endictment was only contra pacem publicam Ieofail Indictment whereas at that time when it was preferred it ought to have been contra pacem nuper domini Regis contra pacem publicam nunc Adjourned 23 Car in the Kings Bench. Pasc 1650. rot 414. Cremer Plantiff in a Replevin Burnet Avowant in a Replevin THe Plaintiff complains for the taking of his Cattell Whether a copyhold estate be extinct by the Kings leasing it for life to wit a Horse Colt and three Mares the 13 of Ianuary 21 Car. at Chingford in the County of Essex in a close there called Pipers down THe Defendant avows the taking of the Cattel in loco quo c. as Bailiff unto Thomas Boothbye as damage feasant in the Close aforesaid being the soil and the freehold of the said Thomas Boothby Vpon the pleading the case appeared to be as followeth KIng Henry the 8. being seised in Fée in the right of his Crown in the maner of Chingford Comitis in the County of Essex of which manour a certain tenement called Lormiers
and upon it the case sell out to be thus Special verdict in an ejectione firmae A having lands in see simple and also goods and chatels to the value of 5 l. only in Tavestock made his Will and devised to his wife totum statum suum viz. his whole Estate paying his Debts and Legacies and his Debts and Legacies did amount to the value of 40 l. Hales made 2 questions 1. Whether the lands passe to the wife by the Will or not 2ly If they do what estate passeth to her in the Lands For the first he argued that the lands do passe to the wife 1. Because the generality of the words do include the lands as well as the goods for the words are his whole Estate so that nothing is excluded 9 E. 4. a release of all Actions is held a release of all Actions that the party had in all his capacities 2ly The ordinary maner of spéech doth shew that he intended to devise his lands as well as his goods Riches case Mich. 45. Eliz. C. Banc. A devise of all his rents was held to passe all the partyes lands Also the subject matter in fact doth prove this to be his intent and although here is not a collateral averment to prove the intention but a collateral proof to declare the Testators intent this may be admitted to ascertain the Court of his meaning as it is in the case of proving an Act of Parliament In the Lord Cheneys case an averment standing with a Will was accompted allowable though an averment against a Will be not In Cooper and Lanes case 35 Eliz. a devise seigniori puero where the Testator had a Son and a Daughter was held a good devise to the Son although puer signifies as well a Daughter as a Son and the Daughter there was elder than the Son and Hill 8. Car. In Bartler and Rodes case in B. R. a devise of all his lands in Dale if he had leases as well as lands there passed not the leases For the 2d point he argued that a fee simple passed 1. Because his whole Estate is devised and that is to be applyed as well to the lands as to the goods 2ly Because in regard that there is a consideration for it to wit that the wife shall pay his Debts and discharge his Legacies and whereas it is objected that it is not said she shall pay all his Debts I answer that it shall be so intended Here is land and goods mentioned and not land only and it is found that the goods only are not sufficient to pay the Debts and also the goods were liable to the payment of the Debts without this expression in the Will and therefore the land must be intended to be devised And for the verdict it is not material to find the lands to be held in socage for they shall be intended to be so held because it is the most antient Tenure for where the Law creates a Tenure it shall be socage Tenure 2ly Lands may possibly be deviseable although they be not held in socage for if they be neither held by socage nor chivalry yet they are deviseable Dyer 307. Neither is it material to find the Debts and Legacies paid for it is a condition here an not a limitation and there is a person to take advantage if the condition be broken this is a special verdict the breaking of the condition if it had béen broken would have appeared upon evidence therefore it is not necessary to aver it it is in case of a Fee simple which is an Estate intended to continue Devise Roll chief Iustice held that the lands did passe for so he said the common understanding imports and the words do go to the value of the estate 1. It comprehends the thing to wit the land 2ly The extent of the Estate given viz. Fee simple and so it shall be here intended and the words paying his Debts and Legacies doth enforce this construction for they are to be paid presently which cannot be if the lands passe not in Fee and so the aberment it is but to supply the meaning of the Testator and stands very well with the Will and is not so collaterall as it is in Cheyneys case And for the verdict the lands shall be intended to be socage lands Intendment as being the most Common Tenure except the contrary were shewed on the other part Denham and Bakers case Mich. 24 〈◊〉 entred Trin. 23. rot 12.80 and the words paying his Debts and Legacies are words of condition and not of limitation Ierman ad idem and said Condition̄ Limitation when we say a man is a man of a great Estate we mean his Estate in lands as well as goods Nicholas and Ask Iustices to the same effect but Ask said he doubted of the verdict because no Legacies are found and this is part of the case Iudicium pro querente nisi Antea Pickering and Emma Trin. 1651. Banc. sup EMma obteined a Iudgement against Pickering For a supersedeas upon an audita querela brought and had satisfaction upon it and gave a release to the Defendant yet afterwards takes out a capias ad satisfaciendum against him whereupon he brings his Audita querela and moves the Court that he may have a supersedeas to the capias ad satisfaciendum The Court desired to see the release and upon view thereof The rule was that the party should proceed in his audita querela but said they would grant no supersedeas because the release was ambiguous Custodes c. against Rivett Trin. 1651. Banc. sup VPon a rule of Court to shew cause why an Attatchment should not be granted against one Cause why an Attatchment should not be granted for proceeding to a tryal in an iuferior Court notwithstanding a habeas corpus directed to remove the cause An Affidavit was made that the proceeding to tryal was because it was supposed the habeas corpus was against the Statute of 21 Iac. The Court answered you ought to have returned this matter upon your return and not to have proceeded against the habeas corpus but let the Secondary examine the matter and then move again Return But it is dangerous to execute the Iudgement if the Statute be not against the habeas Corpus The Custodes against my Lord Morley Trin. 1651. Banc. sup THe Court was moved on the behalf of the Lord Morley for a Certiorari to remove an Endictment preferred against him at the Sessions of Peaco at Hicks Hall upon the Statute against hearing of Mass For a Certiorari to remove an Endictment The Court answered that they would advise but that they did not see how a Certiorari could be granted at the prayer of the party but they said at the prayer of the Councel for the State it may be granted Baker against Smith Trin 1651. Banc. sup BAker brought an Action upon the Case against Smith and
in London and the Bill was found against him But Roll chief Iustice answered It cannot be granted upon a motion Good behaviour but you must prefer Articles against him here upon Oath and then you may move for it and if there appear cause in the Articles it shall be granted Mich. 1651. Banc. sup THe Court was moved for a writ to swear one in the Office of a Maior For a Writ to swear one in the Office of a Maior of a Town to which he was elected for the Borough of Trevenny in Cornewall because the old Maior did not swear him in due time as he ought to do but did adjourn the Court before it was done Roll chief Iustice answered that there is no president to swear such an Officer yet ordered that notice should be given to the Town and presidents to be brought into Court if any were to warrant it Whitway against Pinsent Mich. 1651. Banc. sup Pasc 1651. rot 61. A Man made a lease of lands for years by deed Demurrer to a plea in Covenants and covenanted that the Lessée his Assigns should enjoy them during the Term the Lessor made the Defendant his Executor dyed The Lessee assigns over his Term a Stranger enters upon the Assignee the Assignee takes 40 l. in satisfaction for his being ejected of the Assignor and afterwards brings an Action of Covenant against the Executor of the Lessor the Defendant The Defendant pleads the acceptance of the 40 l. of the Assignor in satisfaction of the wrong done him in Bar of the Action and to this plea the Plaintiff demurred Bar. The question here was whether the Action of Covenant did lye against the Defendant since that the Plaintiff had received 40 l. of his Assignor in satisfaction Roll chief Iustice said that here is a double Covenant one of the Lessor and the other of the Assignor and therefore the party may have two Actions Action and therefore he is not here barred to bring this second Action though he have barred himself by the acceptance of the 40 l. from bringing an Action against his Assignor and the Defendant hath not pleaded that the 40 l. was given in satisfaction of both the Covenants for then it had been otherwayes Ierman Iustice to the same effect That they are several Covenants by several deeds and both the parties are severelly bound and satisfaction given by one of them is not the satisfaction of the other And he said if Lessee for years assign over his Term the Lessor having notice thereof and he accept the rent from the assignee he cannot demand the rent of the Lessee afterwards yet he may sue other Covenants conteined in the lease against him as for reparations or the like The rule was for the Plaintiff to take his Iudgement nisi Mich. 1651. Banc. sup SErjeant Glyn moved for a certiorari to remove an endictment of forcible entry that was once before removed hither For a certiorari to remove an endictment and after sent down by a procedendo because the Iustices below will not grant restitution Roll chief Iustice answered There is a plea put in and in such case it is not usual to grant a certiorari yet it may be that it may be granted therefore let the other side shew cause on Monday next why it should not be granted Cantrell against Stephens Mich 1651. Banc. sup CAntreli brought an Action upon the case against Stephens for stopping his way in a Meoow called Madbrook in the parish of Redriff in Kent Arrest of judgement for an Action upon the case for stopping a way upon not guilty pleaded and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the Plaintiff as Lessee to the Haberdashers company of London claimed to have a way for them whereas they having let the land cannot have the way but the Lessée in possession 2ly The prescription is not rightly applyed for it ought to be for them to have a way pro tenentibus et occupatoribus suis which is not so here Twisden answered it shall be intended Tenants and Occupyers to the Haberdashers though it be not said suis Latch said that a prescription per que estate is good in an Action upon the Case because no land is claimed and Green on the same side said the exception taken was helped by the verdict Wild on the other side said that it doth not appear that the Tenant who brings the Action comes in by the Haberdashers who claim the way and so he cannot prescribe to have it Prescription and the prescription ought to be laid pro tenentibus subtenentibus which Roll chief Iustice denyed and said that it is laid that the Haberdashers were seised in Fée postea huc usque and so they have the Fée at the time and may prescribe but it had been better for the party to have shewed that he was their Tenant but it being after a verdict the question is whether it be not helped Vpon reading the Record Roll chief Iustice observed that it appeared not whose Occupyer and Tenant the Plaintiff is but only by way of argument but said the question is whether the verdict do help it and he inclyned it did not Verdict because the Action is brought by the Tenant who hath not entitled himself to the Action for he hath made only a title to the way in the Haberdashers Title but hath derived no Estate from them to himself At another day Roll chief Iustice said we must not take things by intendment and here is a failer in the very gist of the Action for the Plaintiff hath not entitled himself to the Action for he hath no interest for it appears not how he is Ocupyer of the land for he doth not say he is Ocupator suus and as he hath laid the Declaration the Company ought to have brought the Action Ierman Iustice to the same effect and said that upon a demurrer it had been cleerly naught and the verdict here doth not help it for no title appears for the Plaintiff and the verdict cannot give him that he had not before Nicholas and Ask Iustices to the same effect Roll If it had been Ocupator suus I doubt it would not make the Declaration good because it shews not by what title So The rule was nil capiat per billam nisi Tayler against Web. Mich. 1651. Banc. sup Hill 1650. rot 240. IN an ejectione firmae upon a lease for 7 years there was a special verdict found Special verdict in an ejectione firmae and the questions in the Case grew upon the words of a Will that were false orthography viz. I do make my Cosen Giles Bridges my Solle Ayeare and my Yexecutor meaning my sole Heir and Executor Powis of Councel with the Plaintiff held that the Will was good to make Giles Briges the Testators Heir and Executor notwithstanding the mis-writing of the words
transitory matter Where one justifies a thing done it ought to be confessed that he did it so if he traverse that he hath not done a thing here it implyes it is done some where else Latch for the Defendant made this question whether upon the matter as it is here pleaded the jurisdiction of this Court be taken away and he held it is It is the honour of this court to imaintain the jurisdiction of all other Courts and therefore I hope it is not misbeseeming me to put it in mind of this honour that belongs to it I believe that according to the antient Law of the land actions ought not to be laid else-where then where the matter that caused them did arise although that now by custom it is grown otherwise Although the Plaintiff may fix a transitory Action where he pleaseth in ordinary matters yet he cannot do it where the matter ariseth within a speciall jurisdiction as the case here is It is not a good allegation that binds up the jurisdiction of this Court except where it appears that the allegation is true the allegation here may well stand with law it being in the Case of a County Palatine which hath such a jurisdiction incident to it this Court Ex Officio ought to take notice of the Iurisdiction of the County Palatine and that they have authority to hold pleas 45 Ed. 3. f. 10. 50 E. 3. pl. 1â— 10 H. 6.16 The averment is that the party remains within the jurisdiction of Chester that there may not be intended to be a failer of justice by the parties going out of the Iurisdiction where the offence was done 44 45 Eliz. Crisp and Deâ—â—â— Neither is the plea by the traverse become so vitious as to retain the Iurisdiction of this Court thereby For the County Palatine cannot give up their jurisdiction to this Court as antient Demesn Courts and other Courts may by the mispleading of the parties for their pleading is coram non judice 10 H. 6.13 b. 9 H. 7.12 45 E. 3. f. 7. 22 E. 4.23 31 H. 6.11 Nor doth the traverse here waive all the precedent matter but stands with it although it be made narrower by it but nothing is here waived Dyer 165 Here is an issue in substance which is good although not in the letter and the straightning of it shall not hurt and the Court is neither inveigled nor the party wronged by it Dyer 369 Hob. 119. This traverse binds not the other party to joyn issue upon it but there may be a traverse upon a traverse and he may plead another plea Hob. 18. New mans case Roll chief Iustice In your prescription you have averred that he was an inhabitant but you have not averred that they ought to hold plea of transitory matters if the party inhabit out of the jurisdiction and here the party ought to be summoned and if he dwell out of the jurisdiction what remedy can be had against him then for how can he be summoned And we cannot judge of the jurisdiction but by your pleading Tryall and by your traverse you have tripped up your own heels The reason why transitory actions may be laid in any County is because that otherwise justice might fail for the party may do a fact in one County and then remove to another so here the party may do wrong within the County Palatine and then go out of it to avoid justice At another day Wild argued for the Plaintiff and Shafto for the Defenddant Wild held that the plea was ill 1. In the inducement 2ly It is ill in the substance of it 3ly The traverse is not good The inducement is ill because it doth not confess a conversion but here is a general issue only pleaded 9 E. 4.5 12 E. 4.12 It is ill in the substance because the usage pleaded is against Law and will cause a failer of justice which ought not to be for the Law leaves no person wronged without a remedy 19 E. 3.29 Fitz. Iurisdict 50 E. 3. pl. 1â— 44. 45 Eliz. Crisp and Verols case 2 R. 3.4 Harid and Paytons case 24 Car. 48.2 instit 4. Cook jurisdict 213. 14 E. 4.25 Next the traverse hath waived all the matter pleaded before and because the plea was good before there was no necessity to take it 20 E. 4.2 and the traverse is also too straight for it hath tyed up the matter to Wellington and so he prayed a respondes ouster Shafto on the other side held the plea good and argued much to shew in the jurisdiction of the County Palatine and cited Cook jurisdict f. 219. 22 E. 4.34 per collow Dyer 156. Hill 8 H. 7. rot 228. and he said the plea is good though it be not confined to the inhabitants within Chester for there was no necessity to plead thus and it had been enough to have pleaded generally because this Court takes notice of the jurisdiction of Chester 11 Rich. 2. Fitz. breif and the pleading hath alwayes been in this maner as may appear by the Book of entryes 1 E. 4. f. 11. and this custom by construction of law is necessarily to extend to the inhabitants within the jurisdiction 21 H. 7.40 Dyer 46. Rastall 128 129. the privilege of Chester follows the persons of the inhabitants and so there can be no failer of justice as is objected And for the traverse though it be ill it shall do no hurt in this case to take away the custom for upon the entire record it doth appear that the Action lyes within the jurisdiction and if Iudgement be given here it is coram non judice and so the traverse is nor material 9 H. 7.12 37 H. 6. f. 26. Cooks Mag. Char. cap. 247 Mag. Char. f. 241. Westm I. C. 35. Bract. 260. Hill 7 Iac. Dymocks case in this Court Notice Nicholas Iustice answered the Iustices of this Court are not bound to take notice of the custom of Chester otherwise than as it is alleged Roll chief Iustice The matter is whether we can take notice of your case otherwise than you have pleaded it and your plea is naught and the party may demurr upon it for it appears not whether the custom extends to Wellington where the trover was because it appears not whether Wellington lie within the County Palatine of Chester or no Plea and the Plea cannot be good in part and ill in other part as is supposed Ierman Iustice The Declaration here is good and if the plea be not good to answer it then it is ill Nicholas Iustice The Plea is contrary to law and reason and Common sence and there ought not to be a failer of Iustice Ask of the same mind Confession Roll chief Iustice We must take all the matter as it is pleaded and if the Plea be ill the other party shall not be said to confess any thing And here you have pleaded a plea in Bar viz. Not guilty and you have also Pleaded to
more goods it is not necessary to do it And the law should do wrong if he should not be first satisfied for now he is a lawfull administrator and also a creditor of a higher nature than the other and because he cannot bring an Action against himself for his debt therefore he may by law retain the goods in satisfaction And he may satisfie a debt upon a specialty before a debt due upon a contract although a sute were commenced for the debt due upon the contract so here he may retain the goods Roll chief Iustice Why shall not here the administration purge the wrong which he did as Executor of his own wrong It is true indeed that he shall not abate the writ by taking letters of administration but he may plead this plea in bar of the Action and here it doth not appear but he is rightly Executor Abâ—tement Bar. without doubt the plea here pleaded had been good to a stranger without letters of administration and the law shall supply the retainer to him here and there is no wrong to the Defendant at another day it was moved again and the Court held the plea good and ordered Iudgement for the Defendant nisi Strode against Homes Trin. 1652. Banc. sup Hill 1651. rot 999. STrode brought an Action upon the case against Homes Arrest of judgement in an Action for words for speaking of these words of him in relation of his office he then being Church-warden of St. Clements Parish in Oxford Thou art a cheating knave and hast cosened the Parish of 40 l. Vpon not guilty pleaded and a verdict for the Plaintiff It was moved in arrest of Iudgment that the words were not actionable because here was no special losse alleged by the Plaintiff nor is he in any danger of corporal punishment by speaking of the words Pasc 10. Iac. Hopper and Baker Roll chief Iustice answered the matter is not so much the losse of his office as the losse of his credit in being accompted a cheater At another day Crook Senior moved for Iudgement for the Plaintiff and said the words are actionable for a Church-warden is not meerly a spiritual officer but an officer by the Common Law and also by the Statute Yarly and Ellis case Sir Miles Fleetwoods case Hob. rep Bray and Haynes Crook Iunior on the other side urged that this is not an office of profit but of trouble and burden and no special losse is alleged Roll chief Iustice Officers which have no benefit by their offices have more need to be repaired if they be scandalised in their Execution of them and here the scandal is great losse to an honest man and what other remedy can he have to repair himself Case but by his Action on the case Ierman Nicholas and Ask of the same opinion And so Iudgement was given for the Plaintiff nisi Trin. 1652. Banc. sup VPon an Affidavit read in Court made by divers prisoners in the upper Bench-prison against Coronel Keyes a prisoner that he is very unruly Motion to remove a prisoner out of the upper Bench prison to Newgate denyed abuseth his fellow prisoners it was moved he might be removed to Newgate But Roll chief Iustice answered if he be unruly the Gaoler must put on irons upon him and kéep him safely there for this is no cause for us to remove him for he lyes there under many actions and we must not remove him to another prison Trin. 1652. Banc. sup THe Court was moved that the party might not have a tryal at the Bar untill he had paid costs upon being nonsute in a former action for the same lands Roll chief Iustice He shall not proceed to another tryal Against a trial at the Bar till costs paid upon a former nonsute Costs untill he have paid his costs for by this means we shall incourage men to be vexatious Freind against Baker Trin. 1652. Banc. sup VVIld moved to amend a Record wherein a Iudgement was given in the Common Pleas For amendment of a record denyed after the Record was removed by a writ of Error into the Chequer Chamber the fault to be amended was that there is day given over to the parties from Easter Term to Michaelmas Term and so Trinity Term is left out which he conceived was but a misprision of the Clark and but a miscontinuance in giving a wrong day to the parties 2 H. 7.11 22 E. 4.3 But Roll chief Iustice answered Discontinuance that this is the act of the Court and by your reason you may skip over 3 or 4 Terms one after another without any continuance The giving of a day more than is necessary is no discontinuance but here wants a day which makes it not a miscontinuance but a discontinuance and so was it adjudged 1 Car. at Reading Term. Nicholas Iustice cited 21 H. 6. f. 16. to be adjudged that it is a discontinuance Roll chief Iustice A miscontinuance is where one processe is used for another and so the processe is mistaken but this is a discontinuance and cannot be amended Amendment For this is not upon a writ of Error out of the Common pleas as we supposed it to be and that the Record had been amended there for then we would have advised whether we would amend it here Miscontinuance but it is upon a writ of Error brought in the Chequer Chamber upon a Iudgement given here Brock against Vernon Trin. 1652. Banc sup BRock brought an action of Debt against Vernon as an Executor upon a bond entred into by Vernon unto the Testator of the Plaintiff Arrest of judgement in debt upon a Bond. the Defendant acknowledgeth the bond but sayes that he gave another bond in satisfaction of that Bond unto the Testator which the Testator did accept of in satisfaction Plea Thâ—ng in Action The Court held this plea ill and that the party might have demurred upon it and needed not to have joyned issue and put it to the Iury for it is no good plea to say that one did accept of one thing in Action in satisfaction of another thing in Action and here the Defendant hath confessed the debt and therefore his plea being ill Iudgement ought to be against him and Iudgement at another day was given accordingly Buckstone against Shuâ—lock Mich. 1652. Banc. sup Entred Trin. 1652. rot 177. A Writ of Error was brought to reverse a given Iudgment in the Common Pleas upon an information Error to reverse a judgment in the Common Pleas upon an information for selling of Wine without licence for selling of Wine without licence contrary to the Statute The Error assigned was that the information was brought in the Court of the Common Pleas which is in the County of Midlesex whereas the offence is alleged to be done at Lambeth in the County of Surry which ought not to be as Davisons case is in Hob. rep Roll chief Iustice How do you prove this
It is considerable in regard it is an office of trust whether it may be leased out although he may make a Deputy Therefore argue it again the next Term. Baker and Andrews Mich. 1652. Banc. sup Trin. 1650. rot 1469. BAker brought an Action of Trespass quare vi armis clausum fregit Demurrer to a replication in Trespasse vi et armis and for taking his Cattel the Defendant as to the force and arms pleads non cul and as to the rest he justifies that the Cattel went in through the defect of the Plaintiffs inclosures the Plaintiff replyes that the Cattel came in through another mans fence into his ground to this replication the Defendant demurs 〈◊〉 shews for cause that the Plaintif doth not assign where the place of the other Close lyes through which the Cattel came through Yard said it is not necessary to shew where it lyes for they went not in where the Defendant hath alleged so the traverse is well taken Wadham VVindham on the other side answered here is a new assignment and he answers not the Trespass for which the Action is brought and because it is a new assignment we must give a new answer and therefore you must shew the place where your new assignment lyes Roll chief Iustice He pleads no more but that the Cattel came in at another place than is pleaded and he needs not shew the place But here the Defendants plea is not good Plea for he pleads a prescription where it ought to be a custom that the occupyers of the land ought to make the sences and he ought not so prescribe in the person Iudgement for the Plaintiff nisi Mich. 1652. Banc. sup BY Roll chief Iustice Who may take advantage of a fault in a Plea Advantage If there be a fault in a plea in matter of form and after there is a fault also in the replication and the Defendant demurs to it but shews no cause of demurrer he shall take no advantage of this fault in the replication but he who joyns in the demurrer shall take advantage of the ill plea and so was it adjudged Pasc 1. Car. in this Court in Prat and Thimblethorps â—ase and he said that all faults in pleading are incurable at the Common Law and therefore those that are not helped by Statutes are left as they were at the Common Law Mich. 1652. Banc. sup ONe was made Constable by order of a quarter Sessions but the party refused to serve Motion to quash aâ— order of Sessions and removed the order hither by Certiorari moved to quash the order but the Court would not do it although ther were material exceptions taken against it but ordered him to plead because they perceived the party was stubborn and they would not give encouragement to such persons Heath and Vdall Mich. 1652. Banc. sup HEath a Caryer brought an Action of the Case against Vdall Arrest of Iudgement in an Action upon the case and declares among other things for plundering of him of viginti fardellas Anglice packs and in arrest of Iudgement it was moved that the words vinginti fardellas Anglice packs is uncertain But Maynard argued that it might be good because the Caryer could not declare otherwayes for he could not know what was in the packs and he cited one Bedingfields case Trin. 10. Car. Declaration where an Action was brought for a library of books and for apparell and adjudged good But Roll chief Iustice said it could not be good for the apparel Wadham Windham on the other side held the words uncertain as they are and said he ought to have shewed that they were packs with goods or have shewen what was in them for a pack is but a measure of a thing Roll chief Iustice answered if it be but a measure of a thing then no damages are given for them and then the Action is good for the rest But we will advise Afterwards in the same Term Maynard moved for the opinion of the Court and thereupon the Court held that the words are incertain as they are for he ought to have expressed what was in the packs and ruled a nil capiat per billam to be entred Levingston and Crompton Mich. 1652. Banc. sup LEvingston brought an Action in this Court against Crompton Exceptions to a plea of privilege The Defendant pleads that he is a Clark of the Chancery and that all Clarks of the Chancery ought to be sued in the Chancery only and not elsewhere and demands judgement if he ought to make any other answer in this Court Two Exceptions were taken to the plea 1. He saith That all Clarks of the Chancery have used to be sued in the Chancery and not elsewhere and doth not say nor any of them have been used to be sued elsewhere and though all of them have not been used to be sued elsewhere yet that hinders not but that some of them have been sued elsewhere 2ly He pleads that he is a Clark of the Chancery and ought to be impleaded in the Chancery held at Westminster before the Keepers of the liberty of England c. time out of mind which is not true Hales answered That this Court ought to take notice of the privilege of Chancery Notice Privilege although it be not well pleaded But Roll chief Iustice denied that they ought to do it and said That it is the Custom for the Clarks of the Exchequer when they plead their privilege to bring the red book wherein their privileges are written into the Court and upon sight of their privilege there written it is used to be allowed but it is not so of the privileges of the other Courts but they must be pleaded and so here And because it is not well pleaded here therefore shew cause why you should not plead in chief Pitton and Rey. Mich. 1652. Banc. sup PItton appeared to an Action brought against him at the sute of Rey Motion for the Plaintif to declare speedily but no declaration was put in against him Vpon an Affidavit that the Defendant was a Merchant speedily to go to Sea It was moved for him that the Plaintif might forthwith declare against him that thereby he might direct his Attorney what to plead and might have his liberty to be gone Roll chief Iustice By the course of the Court he hath thrée terms liberty to declare but this is an extraordinary Case Therefore let him declare Thursday next otherwise he shall not declare till he come back Nota. Mich. 1652. BY Roll chief Iustice A private Sessions of the Peace is not said to be held for the County Staples Case Mich. 1652. Banc. sup A Rule was read on the Capital side for Staples a Iustice of Peace of Sussex Cause why no Attachment against a Iustice of Peace to shew cause why an Attachment should not be granted against him for procéeding upon an Endictment of forcible entry and
be undestood eight hangings Roll chief Iustice A pair is properly when one of the things so called cannot be properly used without the other but yet the words may be also understood so many couple and here you cannot intend the words to mean so many suits of hangings and you might have expressed your meaning by so many pieces of hangings and therefore it seems doubtfull Ierman Iustice Here the words do not expresse the number of the things as they do when you say a pair of Oxen or the like Nicholas as Ierman Ask Iustice A pair is incertain for that word may be meant more than two in number as when you say a pair of cards and a pair of hangings in some places is meant a suit of hangings Roll chief Iustice If it be so then it is more incertain the word hangings may be good enough but how can the number be known Curia advisare vult Afterwards the Court moved the Defendant to suffer the Plaintiff to amend his Declaration and to plead anew and to consent to a new tryall Askwiths Case Hill 1652. Banc. sup THe Court was moved to quash an order of Sessions made at Durham against Askwith Motion to quash an order of Sessions for not serving the office of a Constable or finding an other able person to serve the place for him being elected according to the custom of the place where he was elected to serve The Exception taken was that it is not shewed that he was elected at a Court Leet and the Sessions have no power to elect a Constable Roll chief Iustice He is a Constable elected by a by-Law By Law it is not necessary there should be any other election then according to the custom and he must serve in his turn or contribute to the charge for another to serve for him Custom and this is a good custom used in many places and I do find one my self in my turn in one place and make no use of my privilege to avoid it Another exception was taken that the complaint made of the party was that he would neither serve the office nor contribute for another to serve it and the order is only that he refused to contribute and so is not warranted by the custom by which he hath an election to serve or contribute Quashed nisi c. Hill 1652. Banc. sup A Prisoner was brought into Court by a habeas corpus out of the Fleet to the intent to turn him over to the Marshalsea to charge him with an Action here Creditor examined upon oath it his debt were reall whereupon the creditor was examined upon his oath whether the debt was real for which he surmised he would bring his Action and upon making oath thereof the Prisoner was turned over accordingly Nota. Smith against Holyman Hill 1652. Banc. sup IT was moved in arrest of Iudgement in an Action upon the case upon an Assumpsit Arrest of Iudgement in Assumpsit False English and Exceptions taken 1. That the Defendants Christian name was mistaken And 2ly That the jurata was erroneous for it says in a plea of dept instead of a plea of debt and the Iudgement was arrested for dept written with a P. is no word though it sound like debt written with a B. Custodes and Howell Gwin Hill 1652. Banc. sup HOwell Gwin was brought to the Bar being convicted for forgeing of a deed Iudgement against one convicted of forgery and was demanded what he could say why Iudgement should not be given against him Boynton of Councel with the Prisoner moved the Court that in regard there was an information of perjury depending here against the witnesses upon whose Testimony the Prisoner was convicted of the perjury and that the Prisoner doth endeavour to proceed with all the speed that is possible against them in this information that the Iudgement may be stayed in the mean time against him Roll chief Iustice answered if they be found guilty of the perjury they shall be punished but we will give Iudgement against your Clyent in the mean time which was done accordingly in these words following Iudgement for forgery viz. you are convicted of forgeing a deed by putting a dead mans hand unto it therefore the Court gives this Iudgement against you that you are fined at a hundred pound and shall stand on the pillory two hours before the Hall dore with a paper on your head shewing the nature of your offence Memorandum the party cut off a dead mans hand and put a pen and a seal in it and so signed and sealed and delivered the deed with the dead hand and swore that he saw the deed sealed and delivered Mich. 1652 Banc. sup MRs. Lucy Fotherby was brought into Court to be turned over into the Marshalsea out of the Fleet with an intent to charge her with an Action of debt Against this it was urged that she was a Prisoner in the Fleet A Prisoner turned over committed thither by an order of the Court of Chancery Prisoner But Roll chief Iustice answered this order is nothing to hinder her turning over if the debt be reall and so upon proof that the debt was reall she was turned over Locky and Dumiloe Hill 1652. Banc. sup Hill 1650. rot 1462. VPon a special verdict in an ejectione firmae the case fell out to be this Special verdict in an ejectione firmae I. S. seised of lands in Fée makes a lease of it to I. D. at Will A. B. puts the Tenant at Will out of possession and after the Tenant at Will enters and takes a lease at Will of him that put him out of possession the question was whether he should hold the land by virtue of his first lease or by virtue of his second agreement To this Roll chief Iustice said if one make a lease at Will to one and he be ousted Will. Determination and then enter again and take a new estate the Will is determined but a stranger cannot determine his Estate without his consent but here he hath determined his first Estate by his new contract with the disseisor of his Lessor And he said if Livery and Seisin be made upon one Acre of land in the name of two Acres it is good for both the Acres for it is not necessary that the party that gives the livery should go to all the land mentioned in the deed of Feoffment Livery and Seisin And he also said that if Tenant at Will cuts down a tree upon the land which he holds at Will by this Act he hath determined his Will Drake and Drake Hill 1652. Banc. sup DRake brought an Action against Drake for these words Arrest of Iudgement in an Action for words viz. Thou hast preached lyes in the Pulpit the Plaintiff being a master of Arts and incumbent of a living Wadham VVindham held the words actionable because they were spoken of the Plaintiff in relation to his
professision and cited one Hinkes case where these words spoken of the Plaintif being a Brasier were held actionable viz. Thou hast cozened me of a Pan. And if one say to another Thou hast poisoned a man If the man be dead the words are actionable although he doe not say that he did it wilfully The Court enclined the words are actionable because they are scandalous And the rule was Iudicium nisi c. Hill 1652. Banc. sup VVAdham Windham moved for a Certiorari to remove an Endictment preferred against one in Newgate Motion for a Certiorari to remove an Endictment Roll chief Iustice He lies there for murder and is outlawed thereupon yet take a Certiorari to remove the Record for his fact was the stabbing of a man and stabbing is in its nature but felony Felony Murther and is not murther although the party cannot have his Clergy for it by reason of the Statute made by King Iames against Stabbing else by the Common Law he might have had it Ashworth and Sir Tho. Stanley Hill 1652. Banc. sup VPon a Verdict given for the Plaintif in an Ejectione firmae Arrest of Iudgement in an Ejectione firmae Damages Ejectione firmae It was moved in Arrest of Iudgement That the Ejectment is laid to be of three Messuages or Tenements and a Toft which as to the Messuages or Tenements is incertain Roll chief Iustice You move too soon for it may be the Plaintiff will release the damages as to the Messuages or Tenement and take his judgement only for the toft and the Action lies well enough for that Hill 1652. Banc. sup TWisden moved to discharge Sir Thomas Revell and others of their recognisances for the peace in which they were bound the last Michaelmas Term Motion to discharge recognizances of the peace because the Affidavit upon which they were bound was only to this effect That the Prosecutor goes in fear of his life when he goes into such parcels of land whereas in truth those lands are setled upon Sir Thomas Revell by decree in Chancery and the Prosecutor hath also brought 18 several Actions against the Tenants of the lands and hath declared against none of them and there are four Affidavits against the first Affidavit Green on the other side said that the party is in Court and says he is still in fear of his life Peace and prays he may not be discharged But because upon reading the Affidavits and examining the matter it appeared to the Court that they were bound to the peace upon malice and for vexation they were discharged Hill 1652. Banc. sup BY Roll chief Iustice Who ought to repair High-ways of Common right All High ways of common right are to be repaired by the Inhabitants of that Parish in which the way lies But if any particular person will enclose any part of a way or waste adjoyning he thereby takes upon him to repair that which was so enclosed Massey and Aubry Hill 1652. Banc. sup AN Action of Debt was brought upon an Obligation to stand to an Award Arrest of judgement in debt upon an Obligation to stand to an Award The Defendant pleaded that the Arbitrators made no Award The Paintif replies that the Vmpire made an award and sets it forth and assigns the breach and upon issue joyned and a verdict for the Plaintif It was moved in Arrest of Iudgement that the assignment of the breach was not good for the incertainty of it for the breach is assigned upon but a part of the Award for the breach assigned is that the Defendant should pay the Arrears of rent due after the purchase of certain lands and doth not shew what these Arrears are But Roll chief Iustice said That the words since the purchase thereof seem to make this certain yet stay till the other moves At another day the case was moved again and the same exception insisted upon by Barry of the Inner Temple who formerly moved it Hales held the Exception not good and that the breach was well assigned because though it seem uncertain of it self yet it relates to a thing which makes it certain As an Award for one to deliver to another all the goods in such a Shop which belonged to him hath been held to be good But Barry answered That it is utterly incertain and that there is nothing in the Award which can make it certain and here is a four-fold incertainty in the Award 1. It cannot be known what these arrears are that are awarded to be paid 2ly It appears not by the Award for what lands these arrerages of rent awarded to be paid are due for there are no lands mentiond but only two leases of land 3ly It appears not by whom the arrerages are due 4ly It appears not to whom the arrerages are due Roll chief Iustice All the matter is whether it appears that these arrerages of rent awarded to be paid were in question or no and it seems they were because the lease and the rent thereupon reserved are both in question but it is not certain what these arrears of rent are and so the party that is awarded to pay them cannot tell what sum of mony he is to pay Ierman Iustice said he may know because he was Tenant of the land Barry replyed he cannot know when the purchase was made and the arbitrement is that the party shall pay all the arrears since the purchase Curia advisare vult At another day the case was again moved by Barry and exceptions taken that the breach was assigned upon a thing not submitted unto or awarded to be performed And secondly The award is incertain in many things First It appears not what rent was due to be paid but only by implication which is not good Secondly It appears not for what the rent is due nor 3ly How much rent is due and Salmons case in the 5. rep was cited Also it was objected that the award was not finall and concluding and therefore not good Also the Award is unreasonable and for that cause also it is not good and he cited 21 E. 4. f. 40. and 17 E. 4. f. 51. and prayed for the Defendant that judgement might be stayed Hales on the other side prayed for judgement said That the Arbitrators were not to ascertain particularly the rent to be paid but it is sufficient for them to make the Award touching all the differences betwixt the parties and an averment may ascertain the particular things being they are only matters of fact although one may not be admitted by an averment to supply an Award in a matter wherein it was in the substance of it defective before Roll chief Iustice What certainty is there by the Award that the party shall enjoy all his right in the two leases in difference between the parties for the payment of the rent Both parties know what rent is due reserved by the leases but how can the party know what the
Banc. sup Pasch 1653. rot 116 or 117. A Writ of Error was brought to reverse a judgement given in an Action of debt for rent arrear upon two leases for years Error to reverse a judgement in debt for rent viz. upon a lease for 3 years of divers Copyhold Lands and upon a lease for 31 years for other lands Howell assigns for Error 1. That the Declaration is not good because that it is for an entire rent reserved for 2 several terms whereas one of the terms is expired here cannot be made any apportionment of the rent because it appears not which of the lands are Copyhold and which are Free lands Roll chief Iustice He ought to shew how much of the lands are Copyhold and how much Freehold Hales Here is but one entire rent reserved and it shall be paid as well after the expiration of the Copyhold lands as before Roll chief Iustice Discontinuance Then for what term shall the rent be reserved for it doth not appear to us Therefore you were best to discontinue your action otherwise if we give judgement upon the Exception taken you may lose your rent Hill and Dechair Trin. 1653. Banc. sup AN Action of debt was brought for 5 l. for selling of Wine without Licence Arrest of judgement in an Action upon the Statute for selling wine without license and a Verdict was found for the Plaintif It was moved in Arrest of Iudgement That the Action is not well brought because it is not by Original as it ought to be by the Statute of 18 Eliz. Wild on the other side answered that it is not necessary to be by Original for a Bill of debt as this is is in the nature of an Original writ if it should be otherwise the Statute would be repugnant for the debt one by Statute may be recovered in this Court by Information and this is the usual practice of this Court. Twisden took a difference between a penal Action and a popular Action A penal Action he said may be by Bill but not a popular Action 2ly It is not shewed that the party was not licensed to sell Wine 3ly The Verdict finds him guilty for selling of 5 pints of Wine between such a time and such a time Relation Action part where of was before the Information brought and part after the Information brought To the last exception Roll chief Iustice answered The matter shall relate to the filing of the Bail for then the Action beginneth not before But what say you to the other Exception Wild That is mistaken for the Action is upon another branch of the Statute Roll chief Iustice By an original Action it is meant in the Statute that the offence shall not be tryed upon a plaint in an Inferiour Court not to distinguish it from an information for a Writ Bill is all one in this Court Stat. 2 R. 3. A Bill is not an Original writ Writ Bill but an original Action and it is the common practice to sue in this Court in this manner But we will advise At another day the Court was moved for judgement because the Action is well brought though it be not brought by original and the Case urged of Winston against it is not to the purpose for that Case was not upon an information as our Case is but it was brought by the party grieved to recover his treble damages and in that case the party did not pursue the manner of suing for them as the Statute directed but we have here done it and it is the constant practice of this Court. Twisden answered that Winstons case is not answered for that was a popular Action as our case is Roll chief Iustice The question here is whether there be an original Action or not upon the Statute of 18 Eliz. C. 5. And I say it doth not appear whether that Statute meant to out this Court of its Iurisdiction or not but it is left at large in the Statute and me thinks it is an original Action Iurisdiction and Plats Case is that an original Action may be by Bill And I conceive the Statute intended only to exclude inferiour Courts and the constant course is that the party being in Custodia Marescalli he may be proceeded against by Bill and we will not suffer this Court to be excluded from its jurisdiction by obscure words in the Statute Therefore let judgement be for the Plaintif nisi c. Ricott and St. Iohn Trin. 1653. Banc. sup IN Action of Trespass an Ejectment brought by Ricott against St. Iohn Motion that the Defendant may plead as a third person shall direct the Court was moved for a third person that he will save the Defendant harmless and prays that giving him security so to do the Defendant may be ordered by the rule of this Court to plead as he should direct him and that he be not suffered to confesse a judgement Roll chief Iustice It is out of the way for you to give such security for there yet appears no collusion But you shall be made a party to defend the title and then move again Trin. 1653. Banc. sup IN the Case of one Clark it was said by Roll chief Iustice Where a day is taken inclusive where exclusive Arbitrement That if the submission to an Award be that the Award be made six days after the submission the day of the Award is to be taken inclusive and not exclusive so that if the Award be made the same day on which the submission was it is a good Award Ayre and Hauxesworth Trin. 1653. Banc. sup AYre brought an Action of Trespass against Hauxesworth for his Cattels damage feasant in D. the Defendant justifies in another County Whether a Traverse was well taken and traverseth absque hoc that he is guilty in D. or in any other place The question was whether the traverse be well taken or not Roll chief Iust answered he must take a traverse as this case is because the justification is local Traverse Discontinuance Therefore let the Plaintif take nothing by his Bill for he may not discontinue his Action because it is in Trespass Nota. Fletcher and King Trin. 1653. Banc. sup A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Action of debt 〈◊〉 â—â—â—ght upon an assumpsit to save one harmless Error to reverse a Judgement in debt upon an Assumpsit in disposing of certain good â—sâ—ised by an Order of thâ— Commissioners of Haberdashers Hall 〈◊〉 â—â—sendant 〈◊〉 that he had saved him harmess The Plaintif replyed that he was damnified the Defendant rejoyns by protestation that there was no Order of Haberdashers Hall for plea saith non damnificatus and upon this the Plaintif demurred in the Common Pleas and a judgement was given there upon the Demurrer for the Plaintif In the writ of Error here the Error assigned was that the rejoynder is a
mony and thereupon the Defendant moved to have the moniés out of Court Roll chief Iustice Peremptory The Plaintiff hath lost his mony â—y this verdict therefore let him shew cause why the Defendant should not have them for it is peremptory to the Plaintiff Franklin Mich. 1653. Banc. sup IN an Action of Accompt the Defendant was adjudged to accompt Motion for Merchants to be joyned to Auditors assigned to receive an accompt and Auditors were assigned The Court was moved that they would order to joyn some Merchants to the Attorneys on either side to help them to mannage the Accompt because the Attorneys were not skilfull in such businesses Roll chief Iustice We can make no rule for this but you may by consent advise with Merchants to assist you in drawing up the Accompts Mich. 1653. Banc. sup BY Roll chief Iustice One burned in the hand may be a Witness one that hath been burned in the hand for Felony may notwithstanding be a witness in a Cause for he is in a capacity to purchase Lands and his fault is purged by his punishment Townsend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. TOwnsend brought an Action upon the Case against Barker Arrest of judgement in an action for words that had béen a Copartner with him in trade for speaking these words of him You are a cosening Knave and did cosen me of 1200 l. at one time and that was in making an accompt in the year 1648. Vpon a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable because though they he spoken of a Tradesman yet they are not spoken of him in reference to his Trade but in reference to an Accompt and although by way of reduction and consequence they may reflect upon his honesty yet they are not actionable and though his reputation be impaired by speaking them yet he cannot be endicted for cosening in his Trade by reason of them because they are spoken of a singular and particular abuse and not of a general cosening used in his Trade and an Action upon the Case lies not for words which are only scandalous by way of reduction and if the words should hinder the party to get a Partner hereafter to trade with him yet he may use his Trade and so cannot be prejudiced nor are the words that he cheated him but that he cosened him which are not of so violent a construction Wild on the other side said that here is a Partnership which is necessary to the driving of a Trade and without which it cannot be so well driven and the Accompt is incident to all Partnerships and prayed for Iudgement Roll chief Iustice If the Copartnership continued the words were actionable without doubt for then they must be spoken of him in the way of his Trade Case but here the Partnership being ended makes the matter more considerable but yet as it is the words are scandalous and may hinder him from getting a Partner for the time to come and it may be he cannot mannage his Trade without a Partner and although an Accompt be a private thing yet the Plaintiff is disgraced by the speaking of the words and none will deal with a man that will cosen his own Partner and we must countenance Trade and Traffique and mens credits and the Accompt is not so collateral a thing to trade as Hales objects as is the hiring of a shop to trade in or the like German Iustice ad idem and said that Copartnership is necessary to support Trade and the keeping of a true Accompt is the principal thing between Partners Nicholas and Ask Iustices ad idem Judicium nisi pro querente Bird and Christopher Mich. 1653. Banc. sup IN this Case upon giving of an evidence in a Trespass and Ejectment Extinguishment of a Proviso in a Deed. it was said by Roll chief Iustice that if I do enfeoff I. S. with a Proviso contained in the Deed that it shall be lawfull for me to revoke this Feoffment and afterwards I levy a fine to I. S. of the same Land this is an extinguishment of the Proviso of revocation Olive and Tong. Mich. 1653. Banc. sup Trin. 1651. rot 1426. Vpon a special Verdict in an Action of Trespass and Ejectment Special Verdict in a Trespass and Ejectment the Case in effect was this One whose Sirname was Mills seised of gavelkind-Gavelkind-lands in Kent in fee by his last Will and Testament devised these Lands to Elizabeth his Daughter in tayl with a Proviso in the Will that if his Daughter Elizabeth did mary one of his own Sirname that then she should have the Lands in fee-simple Elizabeth maried one whose Sirname was Mill but commonly called and known by the name Mills also The question was whether she had maried one of such a Sirname whereâ—â— according to the Proviso in the Will she had a fee-simple in the Lands â—evised unto her or whether his Sirname should be accompted a distinct name from the Testators so that Elizabeth by the Will could only have an Estate in tayl in the Lands devised unto her It was argued first that the name Mill and Mills shall not be said to be one and the same name no more than if she had maried one of a clear differing Sirname in sound yet commonly called also Mills could she have been said to have maried one of his own Sirname and the Proviso here is not a particular pointing out of the person whom his Daughter should mary but a general limitation directing her to mary one of his own Sirname and this ought to have been punctually followed because the name was used to induce the affection of the Devisor to enlarge the estate given by him If he had devised his Land to his Daughter E. if she shall mary a Protestant or an Earl she must mary one that is really so and not one called or only reputed so And as to the objection that this construction would make contrariety in the Will which is not to be admitted this will not be if the Will be taken compositive as it is penned or together and not abstractive and taken to pieces and if it should not be intended that she should mary one who in truth was of his name there would be a contradiction in the Will and here is an Emphasis in the word Own which must be meant his real name and not of a reputative name Roll chief Iustice If a Iuror be retorned by the name of Mills and is sworn by the name of Mill shall this be a mistryal quasi non and the words found alike as Baxter and Backster At an other day the Case was put again by Hales and argued for the Plaintiff and he made divers points in the Case but I could not well hear him but the only point insisted on was the point formerly spoken to and the sum of his Argument was that we are in
an Ejectione firmae that the Record was not yet transcribed and therefore prayed he might amend the judgement by making it recuperet instead of recuperare debet because it was only the fault of the Clark in mis-entring Roll chief Iustice This is a matter of substance and we cannot tell whether the judgement be final or not If it be not final it ought to be recuperare debeat Amendment Iudgement but if it be final it ought to be recuperet Therefore we will make no rule in it Mich. 1653. Banc. sup BY Roll chief Iustice Vpon what promise an Action lies Averment If one make a lease for years of land rendring rent and after the Lessee promiseth the Lessor to pay the rent an Action lies upon this promise if the promise was made at the time of the Lease made but in the Action brought this promise must be expresly averred to be so Bocking and Symons Hill 1654. Banc. sup A Writ of Error was brought to reverse a judgement given in the Commmon Pleas Error to reverse a judgement in the Common Pleas. and the Error assigned was that the Action was brought against 3 persons one of whom was within age and that they all appeared by Attorney whereas he within age ought to have appeared by his Guardian and so the Iudgement was erronious as to him and consequently to the rest because it was a joynt Iudgement Roll chief Iustice Iudgement This is a good exception for it being a joynt judgement if it be naught in part as without doubt it is it is naught in the whole And so it was reversed Hill 1653. Banc. sup THe Court was moved to quash an Endictment for not repairing a High-way To quash an Endictment for not repairing a High way The Exception taken was that the Endictment did conclude that the party ought to repair it by reason of his tenements which was said to be uncertain and it ought to have said that he and all those whose estate he hath in the Tenements used to repair it And 2ly It should have said that by reason of the tenure of his Tenements he ought to repair and not by reason of his tenements And upon these Exceptions it was quashed Trevilian and Welman Hill 1653. Banc. sup TRevilian brought an Action upon the Case against Welman for speaking of these words of him Arrest of judgement for words viz. He did put in two Horses to Colonel Windham meaning Colonel Windham that was Governour of Bridgewater and as soon as any warrants came for the pressing of men for the service he acquainted the Cavalliers by reason whereof none could be pressed that were fit and he doth hold constant correspondency with the Cavalliers Vpon Issue joyned and a Verdict found for the Plaintif It was moved in Arrest of Iudgement that the words were not Actionable because utterly uncertain either when Col. Windham was Colonel and when the Horses were put in and the other words are as incertain as these But it was answered that if all the words be taken together they are certain enough to ground an Action for if they be true the Plaintif thereby will be expresly made a Delinquent and have his estate sequâ—stred for adhering and assisting the King against the Parliament and of this opinion was the Court and thereupon the Plaintif had his judgement Hill 1653. Banc. sup IN the Case of one Page and Crook it was said by the Court Who may be Witnesses That it an Action of Trespass be brought against one with a simul cum with others if nothing be proved against the others they may be examined as witnesses in the cause Whitehead and Buckland Hill 165â— VVHitehead brought an Action of Trespass by Original against Buckland for taking away 400 Sheep and 26 Bullocks Demurrer to a replication in Trespass et armis the Defendant pleads the Statute of 21 Iac. of limitations of actions in Bar the Plaintif replyed that he sued forth and Original writ within 6 years and that the process thereupon was duly cotinued upon this the Defendant demurred and for cause shews that the replication is not good for when the Plaintif says that he sued forth an original he ought to have added prout patet per Recordum which is omitted 2ly He hath not pleaded the continuances of his process upon the Record Maynard answered that the replication is good for we cannot take a traverse upon their plea which is surplusage and we need not plead all the continuances but it is sufficient if we plead as much of the Record as goes in Bar. Roll chief Iustice The plea is plain and it is not necessary to allege the continuances for here is an appearance At another day Maynard said the plea in Bar is not good for he pleads an immaterial thing for it matters not when the original was sued forth but he ought to plead not culpable within six years before the Original sued forth Roll chief Iustice This is the usual way of pleading and it is but to put you to a new assignment Plea and the plea is good for you are not tyed up by it for you are not forced to joyn issue for you may make a new assignment but waive the Demurrer on one part and the pleading of the Statute on the other part and take a new plea and go to a tryal otherwise we must give judgement for the Plaintif But the Court would advise Latch at another day said that the replication is naught for the uncertainty for it doth not appear where the Original was sued forth nor the time when for it is only said he sued forth an Original in Michaelmas Term and part of Michaelmas Term may be within six years and the other part may be after the six years and so it cannot be known whether it was sued forth in due time or no and because no place is shewed there can be no Venue Adjourned to the next term At another day the Case was moved again then the 2 exceptions taken that it was not said prout patet per Recordum and had not shewn the continuances of the process were over ruled by the Court and then another Exception was taken to the replication that it concluded hoc perit quod inquiratur per patriam which is not good for it hinders the other party to rejoyn and he is compelled either to joyn issue or to demur Latch answered That the party may not be admitted to take advantage of this fault now upon a general demurrer and he is not tyed up from rejoyning although an issue be offered him for though the plea be informal yet he may pass over and rejoyn Hob. f. 80. Newman and Stones case Notwithstanding an unnecessary traverse the party may plead over and is not bound to joyn issue and the impertinency of the plea shall remain but only as a blemish in form of the plea and shall not be accompted
seems should make the Law in this Case Dyer 33 H. 8. is the express case Attorney 20 H. 6.32 The Court advised At another day Roll chief Iustice said That the opinion of the Court was that an Attorney may plead his privilege by an Attorney and there is no inconvenience follows by doing it but it is true the Presidents are both ways and it is not contrary to any thing he hath done and it may be he is sick or hath business in another Court where he is necessarily attend Therefore let his plea be allowed nisi Leake and Reynolds Hill 1653. Banc. sup LEake brought an Action of Debt upon an Obligation against Reynolds Special verdict in debt upon a bond The Defendant pleads non est factum the Iury upon issue joyned find a special verdict to this effect That the Plaintifs Declaration is upon an Obligation dated the 24 day of the month and they find that the Obligation was sealed and delivered the 27 day of the month but bears date the 24 day and whether this shall be accompted the same Obligation upon which the Plaintif declares or not is left to the Court to determine Green for the Plaintif said that this case is the same with Goddards case and there it was adjudged a good deed 12 H. 6. f. 1. Dyer 247. and in the end of Goddards case the case in point is adjudged Roll chief Iustice This is a plea in Bar Plea and not in abatement therefore take your judgement Hill 1653. Upper Bench. BY Roll chief Iustice What is not slanderiâ—g a title If one hath colour of title to land an Action of the Case will not lie against him for saying I have better title to the land than you though his title be not so good as the others title is Nota. VVingfield and Valence Hill 1653. Banc. sup Hill 1650. rot 1409. LAtch moved to have restitution of monies out of the hands of a Sherif For resti ution of monies in the Sherif-hands which he had levied upon an execution taken out of this Court because it issued forth erroniously for before the Execution taken forth the Defendant brought his writ of Error in the Chequer Chamber to reverse the judgement and the Record was removed thither and although the late Statute say that a writ of Error shall be no supersedeas to stay execution yet the Record being removed into the Exchequer Chamber no execution can be granted out here for here is no Record to warrant it Roll chief Iust The case being moved again at another day till when the Court would advise said The Record is removed by a writ of Error in the Exchequer Chamber and is not now before us nor was at the time when the Execution issued forth and this being after a verdict and a judgement the writ of Error is no supersedeas and so it is mischievous both ways Mischief Supersedeas but how can we help it yet take a supersedeas quia erronice to supersede the execution for it was ill awarded and take the moneys out of the Sherifs hands Nota. The Protector and Captain Streeter Hill 1653. Banc. sup CAptain Streeter was brought in Court by habeas Corpus For delivery of a Prisoner appearing upon a Habeas Corpus and upon the return read and filed it appears that he was committed by an Order of Parliament for publishing scandalous and sedilious books Twisden moved that the prisoner might be bailed because that the Parliament is now dissolved and by consequence the Order by which he was committed is of no sorce Mr. Attorney General on the other side urged that the Parliament was not dissolved but only the meeting of those persons in Parliament was dissolved for the Parliament by the antient Law is to be every year so that this is but in effect an adjournment and not a dissolution and besides this matter for which the prisoner stands committed cannot be here inquired of and so the cause of his commitment shall be intended to be good and the Parliament may commit without shewing the cause of the commitment and this commitment may be in order to his Tryal and the Prisoner is not without remedy for he may apply himself to the supreme Authority to whom the Parliament have resigned their power Twisden for the prisoner confessed that this Court cannot be Iudge of the Parliament but this Order by which he is committed differs from an Act of Parliament for this is temporary and determineth and although the authority of Parliament ceaseth not yet a particular Parliament may be dissolved as this was Wad Windham When a Parliament is dissolved the procéedings there are determined Flowrdews case 1 H. 7. the Latine case and the Parliament is now dissolved and not adjourned and a Parliament dissolved is not like the Courts of Iustice here in the Vacation time Wild This case is not like to the case where this Court remaunded a prisoner committed by the Parliament sitting the Parliament for the prisoner here is coram Protectore who may deliver him Captain Streeter Mr. Attorney labours to afperse me but shews no cause or crime for my commitment and I am here before the Protector in his own Court Attorney General Only the persons and their convention is dissolved but not the Court no more than this Court is by the demise of the King or in the Vacation time and I must refer it to the Court how far you will intermeddle in this case and this Order by which he stands committed may be his judgement there and then he cannot be delivered and I know no difference betwéen an Order and an Ordinance of Parliament and the stamp and authority of Parliament is upon this order and if the prisoners Counsel say true then he may have an Action of false imprisonment against his Gaoler Twisden Here is no Order of the Parliament returned but it expresseth that he was committed by the Speaker by vertue of an Order of the Parliament Roll chief Iustice We examine not the Orders of Parliament but the question is whether the Order doth now continue Order of Parliament Dissolution and I conceive it is determined by the dissolution of the Parliament and so would it have done by prorogation of the parliament because there is another Session and we can judge no otherwise of Orders of Parliament but by the words of them Ask Iustice If one that is committed by Order of Parliament cannot be delivered until another Parliament the peoples liverty will be lost for there may not be a Parliament in many years Roll chief Iustice A new Parliament hath not reference to the old but it is a new Court created upon new Summons and why may not the Prisoner be bailed without these disputes although he may apply himself elsewhere But the Court would advise because they perceived the prisoner stubborn At another day Mr. Attorney upon the prisoners appearance again upon his Habeas
the rule and he was ordered to pay the Iury. Nota. VValkenden and Haycock Mich. 1654. Banc. sup VPon a Verdict given for the Plaintif in an Action upon the case for these words spoken of a Millener in London Action upon the case for words viz. Thou art in a breaking and decayed condition and I will prove it and if you question me I will prove it to your disgrace Twisden moved for judgement for the Plaintif because he held the words are actionable for by the speaking of them the Plaintif is disgraced in his profession for in common understanding the words amount to as much as if he had said that the party is a Bankrupt and it is so averred in the Record and found by the Iury and he cited Mich. 1651 Tayler and Keisers case and Smith and Rookes case 24 Car. Wild on the other side said that the words are not actionable Adjective words for they are adjective words and of an incertain signification for the words may as well mean that he is broke or burst in his body as that he is a Bankrupt or broken in his estate and there is no averment that the words were spoken in the hearing of tradesmen and though they were yet they may not tend to his disgrace for a Tradesman may be in a decaying condition in respect of what he hath formerly been and yet have stock enough left to trade withall The Court then enclined that the words were actionable but for that time gave no judgement Iudgement but the case being moved again the same Term judgement was given for the Plaintif Lawrence and Harrison Mich. 1654. Banc. sup AN Action upon the Case was brought by Lawrence against Harison his Attorny for delivering a Fieri facias against him Action upon the Case for breach of trust in the sute wherein he was Attorney for him to the Vnder-Sheriff and procuring it to be executed against him contrary to the trust reposed in him Vpon not-guilty pleaded and a verdict sound for the Plaintiff It was moved in arrest of judgement for the Defendant by Windham That there appears not in the Record to be any combination between the Defendant and the Plaintiffs adversary against his Clyent and so no breach of trust appears to ground the Action upon 2ly Here being a judgement in the Case the sute in which he was entertained to be Attorny is ended and consequently the trust reposed in him is determined and so no breach of it for he is now discharged from being Attorney and the Plaintiffs averring the contrary doth not alter the Law and besides this delivery of the Fieri facias is in pursuance of Iustice which since that the sute is ended cannot be called a breach of trust Roll chief Iustice But you did not only deliver the Writ against your Clyent to the Vnder-Sheriff but did also procure it to be executed against him which shews there was a combination against him The only question is Whether a Warrant of Attorney determined whether the Warrant of Attorney be determined by the judgement given in the sute wherein he was retained and I conceive it is not for the sute is not determined for the Attorney after the judgement is to be called to say why there should not execution be made out against his Clyent and he is trusted to defend his Clyent as far as he can from the execution Therefore let the Plaintiff have his judgement Judgement nisi c. Roungs and Woodyard Mich. 1654. Banc. sup ROungs a Farmer in the Country brought an Action upon the Case against Woodyard for speaking these words of him Action of the Case for words against a Farmer You are a Beggar and a Banckruptly Fellow and if every one had his own you are not worth a Groat Sergeant Fletcher moved in arrest of judgement that the words are not absolute and positive words but are spoken adjectively and also they are not spoken of a Merchant or of one that gets his living by buying and selling and so are not scandalous for a Farmer cannot be a Bankrupt and here is no dammage to the party by the speaking of them Roll chief Iustice Particular dammage Though it appear not that the Plaintiff is a Tradesman yet here appears to be a particular dammage to him by the speaking of the words viz. that by reason of the speaking of them he was discredited with his Landlord and his Landlord had given him warning to be gone out of his Farm and it matters not though the words generally considered are not actionable Therefore shew cause Saturday next why the Plaintiff shall not have his judgement Iones and Graves Mich. 1654. Barc sup AN Action upon the Case was brought by Iones against Graves for entring upon the possession of a Term Action upon the Case for entring upon the possession of a Term. after he had recovered it by a verdict given for him Vpon not-guilty pleaded and a verdict for the Plaintiff it was moved in arrest of judgement that the Plaintiff hath not shewed that there was any Term continuing in him at the time of the Defendants entry into the Land for though the Term might have a continuance at the time of the recovery yet it may be ended at the time of the Plaintiffs entry into the Land 2ly It is not expressed when the entry was and so it appears not whether it was before or after the recovery so that it cannot be known whether the Plaintiff hath cause of Action or not Latch also doubted whether this kind of Action ought to be in this Case or not and whether he ought not to have brought an Action of Trespasse and not an Action upon the Case Roll chief Iustice Election of Action He may bring an Action upon the Case or an Action of Trespasse at his own election Wild on the other side held that the Declaration was good enough for by it there appears to be good cause of Action for the time of the entry is expressed viz. that it was after the recovery 2ly The entry is found to be vi armis which implies an unlawfull entry and so the Iury have found it to be Implication The disturbing a possession actionable viz. that he is put out of his possession recovered Roll chief Iustice Though the Plaintiff had no title yet he had a possession and it is actionable for the Defendant to disturb him Therefore let the Plaintiff have his Iudgement nisi c. Mathew and the Hundred of Godalming in Surrey Mich. 1654. Banc. sup IF a Carriers man or Son conspire to rob him and accordingly do it Action upon the Statute of Winchester against a Hundred Mitigation of dammages the Carrier not being privy to it The Carrier may bring an Action against the Hundred upon the Statute of Winchester for this robbery but this conspiracy may be urged in mittigation of dammages Per Roll chief Iustice In a
is a Iudgement well given Plea and it is too late to assign it for Error But the Court advised Postea Kerman against Iohnson Trin. 1651. Banc. sup Trin. 1649. rot 153. KErman brought an Action of Trespass and Ejectment against Johnson Special verdict in Trespass and Ejectment and upon a special Verdict found the Case was this A man devised to I. S. his whole estate paying his debts and Legacies and dies possessed of Goods and Chattels to the value of five pounds only and dyed also seised in fee of divers lands and was indebted forty pounds at the time of his death The question was whether the lands passed by the Devise Barry of Councel with the Plaintif argued that the lands did pass because that wills ought to receive a favourable construction And 2ly The intent of the Testator is to be considered who by the words all his estate did mean to comprehend as well his land as his goods and chattels for there is no restraint of the words here 7 Ed. 3.10 The word estate is a word of large extent and extends as well to the real as personal estate if it were in Case of grant much more in the case of a Will And there is another word used here to explain the Testators meaning to be to devise his lands as well as his goods and that is the word All which comprehends all manner of estates without exception Next if the land should not pass his debts and Legacies cannot be paid according to the express intent of the Testator and the intent of the party ought to be satisfied although the words be not proper because it is in a will though it might be other wise in a grant And whereas it is objected that the Iuries finding of the value of the debts and Legacies is to no purpose because the will cannot be helped by the averment of the Iury. I answer that averments if they stand with the will may be received to make the Testators intent to appear But besides this is not an averment only but a true stating of the Case to the intent to find out the Testators meaning 3ly The devisee of the land is not made Executor but Trustee or Devisee this is since the Statute of Devises 32 H. 8. The 2. question is what estate the Devisee hath in the lands I conceive he hath Fee simple because he hath all the Estate which must be the largest and that is Fee-simple Hob. rep pl. 280. The word whole goes both to the quantity and quality of an estate also And here the consideration that he is to pay all his Debts and Legacies is a good consideration to pass the fee-simple of his lands and though there may be a surplusage after the Debts and Legacies paid this hinders nothing for it is his intent that the Devisee shall have that surplusage and so he prayed Iudgement for the Plaintif Twisden for the Defendant argued that either nothing passeth by the Will or if any thing then only an estate for life passeth He agreed that improper words may sometimes pais things yet sometimes proper words will not passe things viz. if the intent of the party appear to be contrary 24 Eliz in the Earl of Northumberlands case A Devise of all his Iewels did not pass his Collar of Esses and his Iewels annexed to his Parliament Robes and the words here are not that he deviseth all his estate in his lands but his whole estate generally and if the words here should pass the lands yet the fee simple passeth not but only an estate for life in the lands which do pass nor do the words paying his Debts and Legacies cause the Fee-simple to pass for here is no likelyhood of any loss to the Executor for the words are not that he shall pay all his Debts and Legacies and if he be an Executor as the contrary appears not he shall not be charged with more than the personal estate will discharge The words do amount to a Condition and it is not found that there are any Debts or Legacies paid and so it is not performed and the heir may well enter into the lands in question for the Condition broken 2ly The Verdict doth not find how the lands are held whether in Socage or by Knights service and so it appears not whether they can be devised or no and they shall not be intended to be Socage lands Dyer f. 207. Hill 32 El. rot 2. and Pell and Browns case 3ly It is not found that the Testator dyed seised of the lands as it ought to have been and he prayed Iudgement for the Defendant Special Verdict Roll. chief Iustice to the second Exception to the Verdict answered that in a Special verdict it is not necessary to find whether lands be held in Sorage or by Knights Service and he said that the words in the Will do goe to the nature and extent of the estate as Barry urged and he doubted how the verdict shall supply the Will if it be defective for that is only to make the intent of the Will certain Adjourned to be argued again Postea Marshal against Ledsham Trin. 1651. Banc. sup MArshal as Administrator brings an Action of Debt for rent Arrest of Judgement in Debt and upon a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and takes exception that the Plaintif had not shewn by whom the Letters of Administration were granted unto him as he ought to do but only says that the Administration debito more commissa fuit But it was answered that it is too late to move this Exception after a Verdict for the Iury have now found that the Administration was duly granted and the Letters of Administration were produced in Court and therefore not necessary to shew who granted them Declaration and it was said that in a Declaration it is not necessary to shew by whom Letters of Administration are granted or to say they were granted by him Cui pertinuit or per loci illius Ordinarium But in a Plea in Bar it is otherwise for this is not the cause of the Action Plea and effect of the sute but to shew they have been in the Spiritual Court Judicium nisi pro quaerente was afterwards given Antea Giles against Timberley Trin. 1651. Banc. sup Mich. 1650. rot 176. AN Ejectione firmae vi et armis was brought in the Common Pleas Error to reverse a judgement in an Ejectione firmae and a judgement given for the Plaintif upon a nihil dicit and in a writ of Error brought in this Court to reverse the judgement the Error assigned was in the judgement which was entred thus Ideo consideratum est quod recuperet and the word Capiatur was omitted which ought not to be because the Action is a Trespass vi et armis Roll chief Iustice said It is an ill course they use in the Common Pleas to enter