Office where the Declaration is filled Yet they usually do it It is not necessary for the Plaintiffs Attorney to set his hand unto the Declaration which he delivers to the Defendants Attorney but the Defendants Attorney must receive it without his hand set to it If he know him to be the Attorney in the Cause 28. Novem. 1650. B. S. If one be in custody of the Marshall of this Court any person may put in a Declaration against him and the Declaration so put in is a good Declaration and the party must plead unto it although he be illegally in custody for the Court will not trouble themselves to enquire how the party came into Prison Pasc 1652. B. S. If a Prisoner be brought into the Court of the upper-Bench by a Writ of Habeas Corpus to answer a Suite there depending against him a stranger cannot declare against him there upon the by untill he be in custody of the Marshall but he that brought the Prisoner thither by the Habeas Corpus may declare against the Prisoner in Court before he is turned over in custody to the Marshall Pasc 1652. B. S. One ought not to declare against a Defendant in this Court untill his bail be filed By Rolle Chief Justice Pasc 1652. B. S. That is if he do put in bail Duty The words foris faceret may create a Duty Hill 21. Car. B. r. For the party to whom a thing is forfeited hath an intrest in the thing forfeited before he recovers it Dammages Dammages ought not to be given for that which is not at all contained in the Plaintiffs Declaration or for that which is immaterially alledged or against Law but onely for that which is materially alledged and set forth in the Declaration Hill 21. Car. B. r. 23. Car. B. r. Where an Action upon the Case and an Action of trespass are both founded upon one and the same Dammage done to the Plaintiff he may recover joynt Dammages upon both the Actions Hill 21. Car. B. r. Where a trespass for which an Action is brought is entire and not severall trespasses there ought not to be severall Dammages given against the Defendant Mich 21. Car. B. r. Where one joynt Action of trespass is brought for two severall trespasses and the trespasses are found severally the Dammages may be severall but if one Action of Trespass be brought against three Trespassers and two of the Trespassers against whom the Action is brought be found guilty and the third is found not guilty there the Dammages may notwithstanding be intire Mich. 22. Car. B. r. For the trespass is but one joynt trespass though the Action be brought against divers persons But in the former Case there are severall trespasses found and so the Dammages may be severall though the Action be a joynt Action In an Action upon the Case the Jury may finde less Dammages then the Plaintiff layes in his Declaration but they cannot finde more then is laid in the Declaration Mich. 22. Car. B. r. For the Law presumes that the Plaintiff doth best know how much he is damnified by the Defendant and therefore though it may be the Plaintiff will pretend he is more damnified then in truth he is as is often done yet it shall not be presumed that the Plaintiff will say he is less damnified by the Defendant then in truth he is And therefore for the Jury to give more Dammages then the Plaintiff declares upon would be unreasonable which the Law will not suffer Double Dammages given for one and the same Trespass are not well given Mich. 22 Car. B. r. For the Law uses to proportion the amends or satisfaction for an injury done according to the loss which the party to whom the injury is done doth receive by the injury Upon a judgment given upon a demurrer upon an Action of the Case the Court is not to assesse the Dammages but the Jury is to do it Mich. 22. Car. B. r. For the Court gives the judgment upon the matter in Law but the Dammages are to be given upon consideration of the matter of fact which is proper only for the Jury to enquire of In an Assize the Jury ought to give Dammages pending the Suit because there is no remedy over to the Dammages as in an Ejectione firmae but finall Dammages are to be given Pasc 23. Car. B. r. Upon a demurrer to an evidence the Court did direct the Jury who should have tried the issue if the demurrer had not been to finde Dammages for the Plaintiff if upon arguing the demurrer the Court should give judgment for him Pasc 23. Car. B. r. For the Jury may consider of the matter in fact which should have been tryed if the evidence had not been demurred unto Where Dammages are found severally the Plaintiff may relinquish part of the Dammages and enter his judgment for the rest Hill 23. Car. B. r. But where the Dammages are entire he may not do it without leave of the Court Pasc 24. Car. B. r. 19. Ap. 1648. The Jury ought to finde Dammages in a speciall verdict found in an Action of Trespass and Ejectment for untill the Plaintiffs Title is found which is not done by the speciall verdict the Plaintiff shall be accounted a Trespasser against the Defendant because the Defendant was in possession of the Land when the Plaintiff entred and made the Lease of the Land Pasc 24. Car. B. r. For he that is in possession of Land hath title to it against all the world untill a better title is proved Melior est conditio possidentis Where a debt sued for doth appear certainly to the Court what it is there if the Plaintiff recover the Court doth tax the Dammages and not the Jury but where it doth not appear certainly to the Court there it is left to the Jury to enquire of and to tax them Trin. 24. Car. B. r. A Writ of Enquiry of Dammages in a Cause tryed in the Mareschals Court may be executed by the Judges in the Court there Trin. 24. Car. B. r. Greatr Costs and Dammages may be given in some Cases then the Dammages laid in the Declaration Trin. 24. Car. B. r. For the Plaintiffs Declaration is only for the Dammages due unto him by reason of the injury done him by the Defendant But the Costs are given in respect of the Plaintiffs expences in his suit to recover the Dammages In a Replevin brought and a speciall verdict thereupon found Costs and Dammages shall be given on either side according as the issue shall be found If a judgment be given upon a nihil dicit in an Action of Debt brought in the Common Pleaâ— that Court will give Costs and Dammages and so is it used to be done in inferior Courts Trin. 24. Car. B. r. But Q whether it be so inthis Court If entire Dammages be given in an Action brought for divers severall things whereas it is not possible to have Dammages for some of them the Dammages
to give notice of the Lease to the Tenant or Undertenant of the Land in question Hill 23. Car. B. r. For the possession of the Land is primarly in question in this Action and is to be recovered and not the title of the Land though the title of the Land do come in question and is tryed collaterally But now by the new way of practice it is not usual to Seal any Lease of Ejectment at all in an Action of Trespass and Ejectment but the Plaintiff that intends to try the title delivers a Declaration to an Ejector of his own making and that Ejector sends or delivers the Declaration to to the Tenant in possession who gives notice thereof to his Lessor whose title is concerned to defend the title and if neither the Tenant in possession nor his Lessor will defend the title then the Ejector will confess a Judgement to the Plaintiff and so the Tenant will be stripped out of possession but if they or either of them will defend the title then it is usual for them to move the Court that they may be made Ejector to defend the title which the Court will grant if they will Consess Lease Entry and Ouster at the tryal and stand meerly upon the title and if at the tryal they do not then Judgement to be entred against the Plaintiffes Ejector If one do do occupy the Lands in question in an Action of Trespass and Ejectment after the Ejectment Lease made to try the title of the Land is Sealed this is an Ejectment in Law of the Lands in question Trin. 22. Car. B. r. For the keeping of possession of the Lands against him to whom they are let by the Lease doth amount to an Entry upon him although he was never in possession of the Land let If there be two Ejectors made in an ejectione â—irmae one of them may be found guilty of the Trespass and Ejectment and the other as the case may fall out may be acquitted Trin. 22. Car. B. r. An Ejector in Law is any person that comes upon any part of the Land c. in the Ejectment Lease although it be by chance and with no intent to disturbe the Lessee of the possession next after the Sealing and Delivery of the Ejectment Lease and such an Ejector is a good Ejector to bring an Action of ejectione firmae against to try the title of the Land in question Mich. 22. Car. B. r. 1650. B. S. And there is no prejudice to any person by having such an Ejector He that is to try a title of Land by an Action of Trespass and Ejectment ought not to make an Ejector of his own against whom he may bring his Action or to consent or agree with one to come upon the Land let in the Ejectment Lease with an intent to make him an Ejector and to bring his Action against him Mich. 22. Car. B. r. For by that means the Tenant in possession of the Land was often put out of possession by a Writ of habere facias possessionem without any notice given either to him or his Lessor of the Suite But now this is altered by the new way of practise formerly mentioned In every ejectione firmae the Plaintiff ought to set forth in his Declaration in what Parish the Lands in question do lie that the venue may be from the place where the Lands do lie and not from the body of the County except it be when as the Lands in question do not lie in any Vill or Hamlet Mich. 22. Car. B. r. Or lieu Conus for in all such causes it is of necessity that the Jury be of the body of the County because there is not any more particular place from whence the venue may come If one doclare upon a Lease in an ejectione firmae and that by vertue of that Lease he was in possession of the Lands thereby let unto him untill that he was Ejected by the Defendant it is supposed that the Lessor that made the Lease unto him was alive at the time when he brought his Action Mich. 22. Car. B. r. An Ejectment or an Ouster is either an actual Ejectment as when the Lessee is actually put out of the Land let unto him or else it is an Ejectment by implication of Law Pasc 22. Car. B. r. An ejectione firmae ought to be brought for a thing that is certain and not of an incertain thing Pasc 23. Car. B. r. For if the thing be uncertain the Sheriff cannot if the Plaintiff recover know of what to deliver the possession upon the Writ of habere facias possessionem If the Plaintiff in an ejectione firmae do declare for a house lying in two Parishes if the house do lye in either of the Parishes and do not lye in both of them yet is the Declaration good Pasc 23. Car. B. r. For there is certainty enough in it Although in an ejectione firmae there be a Verdict and a Judgement against the Plaintiff yet the Plaintiff may bring another Action of Trespass and Ejectment for the Land Trin. 23. Car. B. r. He may bring divers Actions one after another if he please for a Judgement in that Action is not final By Rolle Chief Justice It is doubtful whether an ejectione firmae do lie de uno crofto Trin. 23. Car. B. r. For the incertainty of the word Croft what it is and what it doth contain If a Lease of Ejectment to try the title of Lands in the possession of I. S. be made to one and after the Lease is made the Wife of I. S. or the servant of I. S. do keep the possession of the Land for I. S. and I. S. do after this occupy the Land I. S. is an Ejector against whom an Action may be brought to try the title of the Land Mich. 23. Car. B. r. 24. Car. B. r. Pasc One who hath title to the Land in question in an ejectione firmae may upon motion to the Court be made a party to the Action that he may thereby defend his title if he will confess the Lease Entry and Ouster Hill 23. Car. B. S. Vid. Supra If a Lease of Ejectment be made of a house and lands occupyed with it to try the title of them and the wife of the occupyer of the house and land continue in possession of the house after the Ejectment Lease is made she is an Ejector as to the house but not as to the Lands Pasc 1652. He who is in any part of a Messuage viz. in the Barn Stable Stall c. after the Lease of Ejectment Sealed and Delivered to try the title of the Messuage is an Eject or for the whole Messuage Pasc 24. Car. B. r. The owner of the Land may consent with the party that claims the Land to make an Ejector to try the title of it if it be not a plot betwixt him and the Ejector Mich. 24. Car. B. r. viz. To strip the Tenant of the Land in
they were preserved as things of value and to be made use of A writing that is permitted to be read to prove one part of an Evidence given to a Jury may be read to prove any other part of the whole evidence to be given Mich. 24. Car. B. r. If the Plaintiff or Defendant will give some part of an answer in Chancery in Evidence to a Jury the Court may order that the whole answer be read Mich. 24. Car. B. r. That the Court and the Jury may the better consider what it makes to the Evidence and it may be if part onely be read it may prove good Evidence for the party whereas the whole answer taken together may be against him He that takes out a Copy of part of a Record out of any Office with intent to give the Copy in Evidence to a Jury must take out so much of the Record at least as doth any wayes concern the matter in question at the tryal or else the Court will not suffer such Copy to be read in Evidence to the Jury Pasc 1650. 2. Maii. B. r. For if it be not so taken out it cannot be sworn to be a true Copy of so much of the Record as concerns the matter in question which is to be done before it can be read A transcript of a Record which is in another Court or an Enrolement of a Deed may be given in Evidence to a Jury Mich. 1649. B. S. For they are things to be credited being made by Officers of trust Upon a tryal at the Bar the Councel of that party who doth begin to maintain the Issue that is to be tryed whether it be the Councel of the Plaintiff or the Councel of the Defendant ought to conclude the Evidence Pasc 1650. 1. Maii. B. S. If any one of the Jury that is sworn to try the Issue be desired to give his Testimony concerning some matter of Fact that lies in his particular knowledge and concerns the matter in question as Evidence to his fellow Jurors the Court will have him examined openly in Court upon his Oath touching his knowledge therein and he is not to deliver his Testimony in private unto his fellow Jurors 31. Oct. 1650. Mich. B. S. For the Court and Councel on both parts are to hear the Evidence as well as the Jury In the case of Miller Plaintiff and Collumbine Defendant upon a tryal at the Bar in an Action of Trespas and Ejectment It was said by Rolle Chief Justice That an Office which is found after the death of one that died Seised of Capite Lands in a County wherein the Lands found in that Office do not lye but in another County may notwithstanding it was not found in the County where the Lands do lye be given in Evidence to a Jury that is to try the title of those Lands if there was a special Livery granted unto the Heir of those Lands 1654. B. S. The Jury may view Depositions taken in Chancery if they be exemplified under the great Seal and they may also have them with them from the Bar to consider of as part of the Evidence but if they be not exemplified under the great Seal they may only look upon them at the Bar but not have them with them out of Court 1655. B. S. If one do produce a Lease made upon an Out-lawry in Evidence to a Jury to prove a title he must also produce the Out-lawry it self but if he produce the Lease to prove other matter he needs not to shew the Out lawry but may have the Lease onely read in Evidence and so it is of an extent without shewing the Statute or Judgement on which the extent is grounded So held in a tryall at the Bar between Johnson and Spencer Pasc 1655. B. S. By Glynn Chief Justice it was said That all the Judges have agreed that upon the Meal Act the Defendant shall give matters in Evidence to the Jury which do onely tend to prove the Issue in question and no other matter Trin. 1655. B. S. For that act is so mischeivous that it is no way to be favoured Emparlance If the Plaintiff do amend his Declaration at any time after it is delivered to the Defendants Atturney or after it is filed in the Office in any thing that is matter of substance the Defendant may by the Rules of the Court Emparle to the next Term after that the Declaration is so amended if the Plaintiff do not pay costs to the Defendant for his amendment but if the Defendant do accept of Costs of the Plaintiff then the Defendant cannot Emparle Mich. 22. Car. B. r. In what Term soever a declaration comes in against the Defendant the Defendant may by the Rules of the Court Emparle to the next Term after before he can be compelled to plead Mich. 22. Car. B. r. For the Law doth not force any one to do any thing rashly and without advice but gives the party time to deliberate what to answer for himself Where the Defendants Case doth necessitate him to plead a special Plea and the matter is difficult which is to be pleaded the Court upon a motion made to inform them of it will if the Defendant desire it grant him longer time to Emparle and put in his Plea then otherwise by the Rules of the Court he ought to have Hill 22. Car. B. r. Where the Plaintiff doth keep any Deed or Writting or other thing from the Defendant which doth belong unto him and whereby he is to make his Defence and is disabled by the detaining thereof to plead for his best advantage the Court upon motion and information thereof will grant an Imparlance to the Defendant untill the Plaintiff do deliver it unto him and a convenient time after till he can draw up his Plea Hill 22. Car. B. r. For the Law doth give every Defendant convenient time to make his best defence If the Plaintiff alter the venue from the place where he first laid it the Defendant may Emparle to the next Term after Trin. 23. Car. B. r. For thereby he may be forced to alter his Plea If the Plaintiff do declare against the Defendant but doth not proceed further thereupon for three whole Terms after the Defendant may Emparle to the next Term by the Rules of the Court Hill 23. Car. B. r. If the Plaintiff amend his Declaration and pay Costs to the Defendant the Defendant may not Emparle but if the Plaintiff give the Defendant a new Declaration or do so amend the old Declaration that it is upon the matter a new Declaration then the Defendant may Emparle Mich. 1654. B. S. By Rolle Chief Justice If the Plaintiff and the Defendant have proceeded so far as to Issue in the Cause and after that the Defendant do amend his Plea the Defendant shall pay the Plaintiff Costs yet the Court will not grant an Emparlance unto him although the cause be not entered in the Judges book for tryall if there
24. Car. B. r. Else the Defendant cannot be able to know against what time he must attend to make his defence If the Plaintiff give but eight dayes Notice of a tryal unto the Defendant where by the rules of the Court he ought to have given him fourteen dayes Notice thereof yet he may enlarge the eight dayes unto fourteen dayes after the Notice of eight dayes given By Hodsden Secondary Trin. 24. Car. B. r. By the course of the Court the Defendant ought to have convenient Notice of the executing of a Writ of Enquiry of Dammages before it be executed as well upon a demurrer as a Verdict Trin. 24. Car. B. r. That he may prepare to give evidence to the Jury that are to inquire of the dammages for the mitigation of them This Court is not bound to take notice of orders made and of things which are done at the Assizes although it be by a Judge of this Court Mich. 24. Car. B. r. For the Justices of Assize c. do Act by special Commissions and not as Judges of the Common Law of any of the Courts at Westminister When either the Plaintiff or Defendant doth intend to move the Court in any matter which may prove disputable the party that thus intends to move ought to give Notice to the other party that he doth intend to move the Court in it and to express for what he will move and when Mich. 1650. B. S. That he against whom the motion is to be made may not be surprized but may have time to provide and may attend the Court to defend himself and answer the motion If the Plaintiff doth tell the Defendant that he will try his cause the first sitting in the next Term this is a good Notice given of the tryal although he do not expresely say upon what day of the moneth or week it is Mich. 1649. B. S. For the Defendant may inform himself of the precise day when that sitting will be although the Plaintiff do not express it and it may be he did not know it himself In the Common Pleas in an Action of Trespass and Ejectment if there be not Notice given to the Tenant in possession of the Land in question who is the Ejector in the Action they will not suffer the Plaintiff to proceed to a tryal upon such a Lease Mich. 1649. B. S. This I conceive is for the better recovering of Costs in case the Plaintiff be non-sute If the Plaintiff do give unto the Defendant Notice for a Tryal before Issue is joyned in the Cause this is no good Notice Hill 1649. 5. Feb. B. S. For before Issue joyned there is nothing to be tried and so this is a vain Notice and to no purpose and it may be there will never be any Issue or Tryal and so the party if he should attend upon such Notice might lose his pains and costs If the Plaintiff carry down his Cause to be tried at the Assizes and it be not then tried for want of time and doth bring it down again at the next Assizes to try it he is not bound to give the Defendant new Notice of this Tryal but if he do not bring it down to be tried at the next Assizes and yet will try it at another Assizes after that he must give the Defendant new Notice before he try it Pasc 1650. 6. Maii. B. S. For the Defendant may doubt whether he will try it or no having desisted so long from trying it and so might be surprized if he should not have new Notice of the Tryal The party that intends to move the Court in a questionable matter ought to give Notice thereof to the party against whom he intends to move or to his Attorney or Sollicitor and not to his Councel for such Notice is not good 1650. 3. Julij 1650. B. S. For the Councel is not concerned to take notice of any thing but from his Clyent It is a sufficient Notice for the Plaintiffs Attorney to tell the Defendants Attorney that he hath put in a Declaration into the Office against his Clyent and he is not bound to give him a Copy of it 13. Nov. 1650. B. S. For there he may take a Copy of it but usually they do deliver Copies to one another of the Declarations and Pleadings in their Clyents Causes If the Assizes that are to be held for that County where an Issue is to be tried do fall out to be fourteen dayes after the end of that Term wherein the Issue was joyned It is not necessary to give fourteen dayes Notice before the Trial that the Plaintiff will try his Cause at that Assizes although the Defendant do dwell above fourty miles from the place where the Assizes are to be held 22. April 1650. B. S. For the Defendant knows the Tryal by the usual course is to be at that Assizes and must attend there at his peril If one be bound by an Assumpsit to do a thing to another he to whom the promise is made must give him Notice when he will have him do it but if he promise that another person shall do it to him there he to whom the thing is to be done is not bound to give Notice to that other person when he will have it done 13. May. 1651. Pasc B. r. For it may be he may not know that other person and there is no privity of Contract between them two as there is betwixt the other two After a ne recipiatur is entred into the Judges Book so that the Cause cannot be tried at that time if the Plaintiff will try his Cause afterwards at another time according to fair practice he ought to give the Defendant new Notice before his Tryal but in strictness of practice he is not bound to give new Notice of it for the first Notice is to serve for all that Term and a ne recipiatur serves only to hinder the Tryal for that day whereon it was set down in the Judges Book to be tried Trin. 1651. B. S. This is to be understood of Causes that are to be tried by the Judges every Term and some dayes after the Term in London and Middlesex and not of Causes to be tried at the Assizes One is not bound to give Notice to another of a Rule of Court made against him except part of the Rule be that Notice shall be given unto him of the Rule Trin. 1651. B. S. For it is intended that his Attorney was in Court when it was made and that he did take notice of it or else that there needs no Notice in the Case because that the party ought to have done that which he is ordered to do without a special Rule made in the Case If a Cause be ready for Tryal and Notice is thereupon given of the Trial and afterwards the Cause is put to a reference and doth depend two or three Terms under reference and being not determined the Plaintiff intends to proceed to
contained in the Declaration there he needs not to take a Traverse Pasc 24. Car. B. r. Pasc 1648. B. S. For a Traverse is a denyal of a thing and when a thing is answered what need is there of a denyal of it Where there is a Disseisin and a descent alleadged in a Declaration if the Traversing of the Disseisin will make an end of all the matter there the Disseisin is to be Traversed and not the descent that is in such cases where by supposition the party may come to the estate by Disseisin Pase 24. Car. B. r. Where the Defendant hath confessed and avoided all the matter that is contained in the Declaration there he needs not to take a Traverse Pasc 24. Car. B. r. For a confessing and avoiding is a full answer of the matter alleadged and so there needs no Traverse of it Title If there be an Inquisition found by which the King is Intitled unto Lands and the Inquisition is not answered nor Traversed the Lands found in the Inquisition shall be suppossed to be in the hands of the Kings 21. Car. B. r. Because there appears nothing to the contrary to question the Kings Title If one be admitted to traverse an Office this admission of the party to the traverse doth suppose the Title to be in him 21. Car. B. r. If in an Action of Trespass and Ejectment neither the Plaintiff nor the Defendant can make out a good title then the party that hath had the most ancient possession of the Lands in question shall be judged to have the best Title Pasc 23. Car. B. r. Mich. 1649. B. S. For an ancient possession of Lands is a badge of a Title to them In Action of Trespass brought for taking away of goods the Plaintiff needs not set forth his Title to the goods Pasc 23. Car. B. r. For by the bringing of the Action and by the Declaration it is supposed that they were in his possession before the Defendant took them away from him and that possession is Title enough to maintain the Action He that is made Ejector to try the Title of Land is not bound to defend the Title of the Land if he whose Title is truely concerned will not save him harmeless if the tryal shall pass against him but he may confess a Judgement and save himself of the trouble which otherwise may befall him by being made Ejector Mich. 1650. B. S. The Officer of this Court whose title was to be called the Clerk of the Crown is now called and Intitled Coroner and Atturney for the Keepers of the Liberty of England by Authority of Parliament Mich. 1650. 24. Oct. B. S. But now that Title is also altred and he is called Coroner and Atturney for the Lord Protector Tenement A Tenement may be said to be any House Land or other such like thing which is any way held or possessed and it is a word of a very large and ambiguous meaning and therefore not fit to be used to denominate or express any thing which requires a particular description 21. Car. B. r. Tipstaff The Court will not grant an Attatchment against an Officer of the Court for a misdemeanor committed by him as an Officer of the Court but one of the Tipstaffs which are Officers of this Court called by that name by reason of a staff which they carry tipped with silver is to bring him into the Court. 21. Car. B. r. And they are in the nature of Messengers or Pursuivants c. If a Sheriff do commit a misdemeanor in relation to the Court during his Office and afterwards a new Sheriff is elected whereby the old Sheriff is out of his Office the Court may grant a Tipstaff to bring him in to answer the misdemeanor for being out of his Office the Court cannot fine him for his misdemeanor Pasc 24. Car. B. r. A Tipstaff is to be granted for one that is in London or Westminister but if he be in the Country an Attatchment is to be granted and not a Tipstaff Hill 22. Car. B. r. 23. Car. Pasc 1650. For the Tipstaffs are Officers to attend the Court and are not therefore to be sent out of Town Treason An intention of Treason if it can be proved by circumstances is Treason in the eye of the Law Trin. 22. Car. B. r. To shew the odiousness and greatness of the offence of Treason by punishing the very intentions of it which are not punishable in other offences criminal Time Where the Law doth not imply a certain Time for the doing of a thing nor is there any certain time agreed upon between the parties for the doing it there the Law doth allow the party a convenient Time for the doing of it Mich. 22. Car. B. r. To wit such as shall be adjudged reasonable In some cases one hath time during his life for the doing of a thing if he be not hastened to do it by request of the party for whom it is to be done but if he be hastened by request then he is bound to do it in convenient Time after such request made Hill 22. Car. B. r. Trespass An Action of Trespass doth lye for him that hath the possession of goods or of a house or Lands if he be disturbed in his possession Mich. 22. Car. B. r. If goods be taken by the Sheriff in Execution and the goods be rescoued out of his hands an Action of Trespass lies against him that did rescue the goods Hill 22. Car. B. r. viz. By the Sheriff or by the party at whose sute they were taken and the party may be endicted for a rescous also at the sute of King for disturbing the peace and hindring the Execution of the Law One Action of Trespass may be brought for a Trespass committed in Lands which lye in several Towns or Vills Pasc 23. Car. B. r. So that those Vills do lye in one and the same County An Action of Trespass doth lye for a Parson against him that doth take away his Tithes after they are set forth Pasc 23. Car B. r. For after they are set forth the person hath a property in Law in them although the Parson never had an actual possession of them If divers Actions of Trespass be brought for one and the same cause with an intent onely to vex the Defendant if the Court be moved in it and proof thereof made by Affidavit the Court will order the Plaintiff to joyn all his Actions into one Pasc 23. Car. B. r. For the Judges of the Law do not favor unjust vexations of the people If one do carry another with force into the house of a third person he who carries the other by force into the house is the Trespassor unto the third person and not he who is carryed thither by force and so if one do drive my cattel into the ground of a third person he that drives my cattel into the ground is the Trespassor and not I who am owner of
the cattel Mich. 23. Car. B. r. For one shall not be made a Trespassor against his will If a person or goods be rescued out of the hands of the Sheriff which he hath taken in Execution by vertue of his Office it is at his election to bring an Action upon the Case or an Action of Trespass vi armis against him that made the rescous Hill 23. Car. B. r. If one bring a meer Action upon the Case he may declare omitting the words vi armis but if the Action be a bare Action of Trespass there he must declare that the Trespass was committed vi armis Mich. 24. Car. B. r. For an Action of Trespass doth implye a breach of the peace and a capiatur is to be entred in the Judgement against the Trespassor for his fine to the King but in an Action upon the Case it is otherwise for there the Judgement is that the Defendant shall pay the dammages and be in misericordia Trespasses of several natures cannot be laid together in one Action Mich. 24. Car. B. r. Upon a recovery of Lands in an Action of Treft pass and Ejectment the Plaintiff may afterwards bring an Action of Trespass against the Defendant for the mean profits of the Land So it was held in the case between Wilmot and Holden Trin 1652. B. S. The mean profits are such profits of the Land as did grow due betwixt the time of the bringing of the Action and the time of the recovery An Action doth lye at the Common Law for the person for taking away of Tithes after they are severed from the Land Mich. 24. Car. B. r. To wit against the occupyer of the Land Q. tamen Tales Upon a Tryal at the Bar if the Jury do not appear full the Court cannot grant a Tales de circumstantibus but the Court upon a motion will grant a Tales returnable in some convenient time the same Term to try the cause Mich. 22. Car. B. r. 1650. B. r. For the Statute doth not extend to tryals at the Bar which did enable the making of a Tales A Tales de circumstantibus are so many persons which are returned to serve on Juries to supply the places of those that did not appear A Corporation Court cannot grant a Tales Pasc 23. Car. B. r. For the Statute doth not extend unto Corporations A Tales is not to be granted where the whole array or Jury is challenged for want of Hundreders but in such case the whole pannel if the challenge be made good is to be quashed and a new Jury is to be returned Mich. 1650. B. S. For a Tales consists but of some persons to supply the places of such of the Jurors as wanted of the number of twelve and is not to make a new Jury If the Sheriff take Bail of one for his appearance who is not Bailable by Law although the party do not appear an Action doth not lye against the Sheriff but the Plaintiff must proceed against the Sheriff by way of amercements Mich. 1650. B. S. 26. Nov. For in regard that the Sheriff ought not to have taken Bail though he have taken it yet it shall be accounted as if he had not taken Bail Terms The Issue Terms are Hillary Term and Trinity Term onely the other two Terms are not so called and the other Issue Terms are so called because in them are the Issues joyned and made up which are to be tryed at the Lent Assizes and the Summer Assizes which do immediately and respectively follow them Hill 22. Car. B. r. The four dayes in Term are the day of 1. Essoigne 2. Exception 3. Appearance 4. Return Hill 22. Car. B. r. All the Term in construction of Law is accounted but one day and therefore a Plea that is put in the last day of a Term is a Plea of the first day of the Term. Trin. 23. Car. B. r. Mich. 1649. B. S. The Term is said to begin upon the first Essoign day which is three dayes before the Courts of Justice do sit and not at the first day of sitting of the Courts Trin. 24. Car. B. r. Because some businesses of that Term do begin at that time The same day of the week that Michaelmas Term doth end the same day Hillary Term doth begin By Woodward Clerk of the Court Hill 24. Car. B. r. Toft and Croft A Toft is a place where an old house did formerly stand and it also signifies a decayed house not inhabited Pasc 23. Car. B. r. A Croft is a small peices or close of Land that lyes neer a dwelling house Pasc 23. Car. B. r. Trover and Conversion Where the Trover of goods is one County and the Conversion is in another County the Action brought for these goods may be laid in the County where the Conversion was for the Conversion of the goods is part of the cause of the Action Pasc 23. Car. B. r. For the very name of the Action is called a Trover and Conversion and not a Trover onely and the Action is brought as well for the Defendants converting of the goods to his own use as for the finding and deteyning of them Two causes of Action for a Trover and a Conversion cannot be joyned in one Action Trin. 23. Car. B. r. An Action of Trover and Conversion may be brought for goods although the goods for which the Action is brought do come into the possession of the Plaintiff that brings the Action before the Action brought Pasc 1651. 22. Ap. B. S. For the coming of the goods into his possession before the bringing of the Action for them doth not purge the wrong or make satisfaction for that which was done to the Plaintiff by the finding and converting the goods and so he hath still cause of Action although his dammages may not be very great Trust The Chancery will compell one to perform a Trust which he hath taken upon him except it be a Trust taken upon him for the benefit of an Alien Pasc 23. Car. B. r. For to compell that might in many cases prove prejudicial to the Common Wealth and repugnant to the Common Law The way of making conveyances by way of Trust was invented to evade the Statute of uses Pasc 23. Car. B. r. Cestuy que trust cannot take the profits of the Land setled by the Trust but hath onely his remedy for them in equity for the estate in the Land is onely in the party that hath the Trust Trin. 23. Car. B. r. Tenure Lands which are granted by the King to hold of him of his Manor of East Greenwitch in Kent in capite is a Tenure in Sorage and the words in capite in the grant are voide Trin. 23. Car. B. r. For those words are repugnant to the Tenure created by the grant Tender A Tender of Rent to save the forfeiture of a Lease ought to be a Tender of the whole Rent due at the time of the Tender without any deduction of Taxes of
of Action did first arise Mich. 22. Car. B. r. Transitory Actions ought not to be brought within Corporations for their priviledges do properly and onely extend for the tryal of such Actions the causes whereof do arise within their own jurisdictions Mich. 22. Car. B. r. Either an Action upon the Case or an Action of Detinue at the Election of the Plaintiff may be brought for goods detained from him 22. Car. B. r. An Action of Trover and Conversion is in its nature but an Action upon the Case to recover dammages Mich. 22. Car. B. r. An Action upon the Case doth lye by the Statute against the Court of Admiralty for holding Plea of a matter which is not within their jurisdiction Mich. 22. Car. B. r. Where a promise is made by a Fem Covert or by a Servant for the Husband or the Master the Action for breach of this promise ought to be brought against the Husband or the Master for it is their promise and the Wife and the Servant are but instruments Mich. 22. Car. B. r. An Action upon the Case doth lye against one for speaking such words falsly and maliciously of another as if they were truly spoken of the party he might be punished as a Felon or by some Statute fined or imprisoned Mich. 22. Car. B. r. as for calling him Theef c. There is a difference betwixt bringing of an Action and the laying of Action Mich. 22. Car. B. r. It is cause sufficient to ground an Action upon the Case for one to put another to the trouble and charges to Sue for that which is his own Mich. 22. Car. B. r. The cause for bringing an Action upon the Case for the speaking of words against one is the temporal loss or dammage which may accrew to the party against whom they are spoken by the speaking of them and not the words themselves Mich. 22. Car. B. r. An Action upon the Case doth lye for speaking of words against a man by reason of which he lost his marriage Mich. 22. Car. B. r. An Action upon the Case doth not lie for Arrerages of Rent due upon a Lease for yeers because the Law gives a proper Action for it to wit an Action of Debt Mich. 22. Car. B. r. Upon a promise made upon an insimul computaverunt the party to whom the promise is made may either have an Action of Debt or an Action upon the Case at his Election for the thing which was before in dispute and uncertain is by the account and promise reduced to a certainty Mich. 22. Car. B. r. For a Debt certain referred amongst other things to an Arbitration an Action of Debt doth not lye but an Action upon the Case Mich. 22. Car. B. r. It is not safe to be too particular or over curious in the laying of an Action for it is often times a cause that the Action doth fail Hill 22. Car. B. r. An Action upon the Case lies for calling one Whore in London but this is by the special custome of the City Hill 22. Car. B. r. yet 24. Car. Pasc The Court was divided in opinion in this question whether an Action doth lye or not An Action upon the Case lies for a private nusance but not for a publike Rasc 23. Car. B. r. An Action upon the Case doth lie for scandal or for molestation Pasc 23. Car. B. r. Where a Joynt Action doth lie against divers persons of whom some are known to the Plantiff and the rest are not known unto him the Action may be brought against them that are known by their particular names and against them that are not known generally with a Simul cum aliis c. Pasc 23. Car. B. r. In a tryal upon a Trespas and Ejectment or a Replevin touching the title of the Land in question although the Verdict pass against the Plaintiff yet he may bring a new Action for the same Land for such tryals are not final Pasc 23. Car. B. r. because the Land is not recovered in them but the possession In a Case betwixt one Nichols and Webb in the Common Pleas for calling the Plaintiff being an Atturney at Law Knave a Verdict and judgement was given for him and this judgement being afterwards remoyed by a Writ of Error into this Court the Judgement was affirmed in Trin. 12. Car. Rot. 102. Pasc 23. Car. B. r. An Action brought for Rent or breach of Covenant upon a Lease may be laid either in the County where the Lease was made or in the County where the Lands do lie that are let by the Lease Pasc 23. Car. B. r. Vexatious Actions are not favoured in Law nor by the Court but may be referred to the Master of the Office to consider of them Trin. 23. Car. B. r. A violent intendment may bring one within the compass of an Action Mich. 23. Car. B. r. by Rolle One may in some Case bring an Action at the Common Law for that for which he may also have his remedy in the Eclesiastical Court for the Common Law is to be preferred before the Eclesiastical Law where they stand in equal degree in respect of the matter to be tryed Mich. 23. Car. B. r. By a special custome an Action doth lie in some Cases in which at the Common Law no Action doth lie and so was it adjudged 8. and 13. Car. Mich. 23. Car. B. r. The Kings Charter cannot enable the Pattentee to bring an Action which the Common Law allows not Mich. 23. Car. B. r. If one bring an Action upon the Case for divers words spoken whereof some are Actionable and some of them are not yet the Action lies Trin. 24. Car. B. r. The Husband may bring an Action alone for scandalous words spoken against him and his Wife and recover and yet may afterwards bring another Action for to recover dammages done to his Wife by the speaking of the same words Trin. 24. Car. B. r. for the Husband and Wife are both particularly damnified by the speaking of the words An Action upon the Case doth not lie upon a contract which sounds in the realty Q. if the contract be mixt with other matters which are not in the realty whether it will then lie or no Mich. 24. Car. B. r. If one take out a Latitat within the time limited by the Statute for the limitation of Actions it is a good bringing of the Action in due time and he is not barred by the Statute although he do no declare against the party within the time limited by the Statute Mich. 1649 B. S. An Action of the Case doth lie against one that doth Arrest another without cause Pasc 1650. 6. Maii B. S. One may have an Action upon the Case against a Witness that is served with a Subpoena to appear at a tryal and doth not appear but by the Statute Pasc 1650. B. S. 18. Maii 13. Nov. A Joint Action of the Case doth not lie against two several persons for
shall be accounted to be given for those things only for which Dammages may be given and the expressing the other things shall be accounted idle and void Trin. 24. Car. B. r. If an Action of Trespass be brought and the Defendant pleads and the Plaintiff joyns issue with the Defendant and after issue joyned he is non-suit he shall pay the Defendant Costs for his false vexation of him by the Stat. of 4. Jac. And upon very good reason For it shall be intended that if he had had good cause of Action against the Defendant that he would not have become non-suit When a judgment is given by default then the Court doth assesse the Dammages and not the Jury Mich. 1649. B. r. For there is no issue tryed If an Action of Trespas be brought against divers persons and some of them plead to issue and others do not and the issue is found for the Plaintiff and Dammages are given as well against those that joyned not in the issue as against them that joyned in the issue these Dammages are well given Mich. 1649. B. S. For the Trespas is found and that the Plaintiff was damnified so much by reason thereof If Dammages be assessed and it is not expressed that they are assessed pro Misis Custagiis this is erroneous for it doth not appear by the Record for what the Dammages are assessed as it ought to do Hill 1649. 31. Jan. B. S. For Records ought to be certain and not ambiguous All Costs are given ex assensu partium that is by the consent of the Plaintiff and the Defendant By Woodward Clarke Hill 1649. 4. Feb. B. S. If the Defendant whose title is concerned in an Ejectione firmae will not defend his title to the Land in question and the verdict do pass against the Plaintiff the ejector may release the Dammages 11. Feb. Hill 1649. B. S. For they do properly belong to hiâ—… One that sues in forma pauperis if the Cause go against him yet he shall pay no Costs if he were admitted to sue in forma pauperis in the suit which passeth against him before the suit began but if he were admitted to sue in sorma pauperis pendente lite that is whilst the fuit depended he shall pay Costs By Rolle Chief Justice who said it had been so antiently held and ruled 16. Nov. 1650. B. S. But Q what Costs whether the Costs of the whole suit or only with relation from the time he commenced his suit to the time he was admitted to sue in Forma pauperis In a Writ of Dowr if the Plaintiff recover and yet doth not desire a Writ of enquiry of Dammages to recover the Dammages the Court may tax the Dammages 5. Feb. 1650. B. S. The Court may encrease the Dammages which are found by the Jury upon a Writ of enquiry of Dammages in an Action of Assault Battery and Wounding if they see cause upon the view of the party that was beaten and wounded Trin. 1651. B. S. This was done in the Case of Davis Plaintiff and the Lord Foliot Defendant The Court will not compell the party that is non-suit in a Cause to pay his Costs upon the non-suit but if the party will not pay them when they are taxed the Court will not suffer him to commence his suit again untill he have paid them Pasc 1652. B. S. After judgment is given in a Cause depending in this Court the Court cannot make a Rule for the payment of the Costs which were expended in prosecuting the suit By Rolle Chief Justice 1655. B. S. For after judgment the parties are out of Court for the Cause is determined Q. No other Costs or Dammages shall be given upon a Recovery in an Action brought upon the Statute of 2º Edw. 6. for not setting forth of Tythes than the Dammages which are expressed in the Statute which is treble dammages 1655. B. S. For the course of the Common Law in such cases is altered by the Statute and it shall be intended that the Plaintiff hath better satisfaction thereby Deputies The Common Law doth in many Cases take notice of Deputies but it doth never take notice of under-Deputies Trin. 23. Car. B. r. As of the under-Sheriff who is but the Sheriffs Deputy sub-Almoner or Deputy-Almoner For in many Cases an Officer may be Law make a Deputy but a Deputy hath no power to depute another under him The King by his speciall Commission may make Deputy Escheators to finde an Office after the death of an Honourable Person Pasc 24. Car. B. r. As of a Duke Earl Marquess Viscount Baron c. Q. Whether in some speciall Case he may not do it after the death of one that is not of the Nobility It seems he may Default Before a verdict is taken by Default the Cryer of the Court doth call the Defendant three times and then if the party do not appear the Plaintiffs Counsell doth pray the verdict may be so entred Hill 21. B. r. Debt An Action of Debt doth lye against the Husband for goods which were delivered as sold unto the Wife because the Law doth intend that they were employed and came to the use of the Husband Hill 21. Car. B. r. And the Husband and Wife are but one person in Law If there be an erroneous judgment given for the Plaintiff in a personal Action in the Common Pleas and thereupon he brings an Action of Debt against the Defendant upon the erroneous Judgement in this Court the Action will well lye here until the Judgement in the Common Pleas be reversed by a Writ of Error 21. Car. B. r. For an erroneous Judgement is not void but voidable But when it is made void by a Writ of Error then there is no ground to support the Action of Debt so that then it cannot be maintained If one do assume upon a consideration moving from I. S. to perform a thing which concerns A. B. and do not perform it I. S. may bring an Action of Debt upon the Assumpsit against him that did so assum upon himself Mich. 22. Car. B. r. For the Action is grounded upon the promise made and the not performing it to I. S. to whom it was made In some Case an Action of Debt will ye though there be no contract betwixt the party that brings the Action and him against whom the Action is brought Mich. 22. Car. B. r. An Action of Debt lies against a Sheriff for moneys which he hath levyed by vertue of a Writ of fieri facias for the party that did recover the moneys for the Law doth create a privity by the fieri facias betwixt the Sheriff and the party that sued out the fieri facias Mich. 22. Car. B. r. If An Action of Debt be to be brought against an Administrator for Rent which was due by the Intestate upon a Contract made betwixt him and the Intestate in his life time the Action must he brought in the County where the Contract
was made but if an Action of Debt be brought against an Administrator for Rent due for Lands left by the Plaintiff to the Intestate but growing due in the time of the Administrator viz. since the Letters of Administration were granted unto him the Action must be brought in the County where the Lands do lye for which the Rent is due Mich. 22. Car. B. r. An indebitatus assumpsit generality is not good to create a Debt but there must something else be made appear to the Court to make a Debt to be due to the party that brings an Action of Debt or else the Action will not lye Mich. 22. Car. B. r. For else to declare upon an indebitatus assumpsit is no more then if the parties declared upon a nudum pactum An Action of Debt doth lye for a Councellor or for an Atturney for their Fees against the party that retained them Mich. 22. Car. B. r. Q. Whether it lie for a Councellor for his Fee is honorarium Quiddam and not mercenarium a Gratuity rather then Wages or a Salary By Rolle Chief Justice An Action of Debt doth lie upon a perfect Contract in Law betwixt the parties and not an Action upon the Case 22. Car. B. r. For generally where the Law directs a certain Action there an Action upon the Case is not to be brought An Action of Debt brought against an Executor for Rent grown due in the time of the Executor ought to be brought in the detinet and debet Hill 22. Car. B. r. So then said to be adjudged in Royton and Mees Case But if the Action be brought for Rent due in the life of the Testator the Action ought to be brought in the detinet onely Where a certain sum of mony is to be paid upon an Obligation at several dayes of payment expressed in the Condition of the Obligation though the mony be not paid accordingly yet an Action of Debt cannot be brought for any part of this money untill all the days of payment expressed in the Obligation be past Pasc 24. Car. B. r. Because the penalty of the Obligation is to be recovered which is not wholly due untill the whole Condition be broken which is not so untill the party fail in the last day of payment If one deliver necessaries to an Infant viz. meat drink or cloaths and he promise to pay for them an Action of Debt will lye against the Infant upon this promise if he perform it not But if the party come to an account with the Infant forwhat is due unto him from the Infant and thereby doth state the sum due unto him an Action of Debt doth not lye against the Infant for the moneys stated to be due unto the party upon this account Trin. 24. Car. B. r. If a woman sole be indebted and then take a husband the Debt is now thereby become the Debt of the husband and of the wife that is to say the wives proper Debt and the husbands Debt in the right of his wife and the wife ought to be sued for this Debt together with her husband and if the husband dye whereby the Action is abated yet the wife may be sued again for this Debt Trin. 24. Car. B. r. A Judgement was Reversed in this Court by a Writ of Error because it was given to recover a Legacy Trin. 24. Car. B. r. For then a Legacy was not recoverable at the Common Law but in the Eclesiastical Court or in the Chancery But now by a late Statute an Action lies for a Legacy at the Common Law See the Statute An Action of Debt doth not lie upon a Judgement given in this Court after the Record thereof is removed by a Writ of Error out of this Court into the Exchequer Chamber Trin. 23. Car. B. r. An Action of Debt doth not lie against an Executor which is grounded upon a simple contract made by the Testator Hill 1649. Jan. 31. B. r. Q. And Action of Debt doth lie against a Goaler for suffering a prisoner in Execution to escape by the party at whose Suit the Prisoner was committed in Execution Trin. 1650. B. r. 15. Junii One may bring an Action of Debt for Rent in what County he pleaseth 9. Nov. 1650. B. r. Because it sounds not in the realty Q. If a judgement be given for the Plaintiff in an Action of Debt in the Common Pleas and afterwards the transcript of the Record is removed into this Court by a Writ of Error yet the Plaintiff for whom the Judgement was there given may bring an Action of Debt there upon that Judgement but if the Judgement be Reversed in this Court upon the Writ of Error and after the party proceed in the Common Pleas in his Action of Debt the party against whom he thus proceeds may bring his Audita Querela to be relieved against this second Action 3. Feb. 1650. B. S. For by the reversal of the Judgement the ground of the second Action is destroyed One may joyn two Debts due upon two severall Obligations from the same party in one Action of Debt 6. Feb. 1650. B. S. And declare in one Declaration upon the several Obligations If one do deliver goods to I. S. to my use if the party to whom they were delivered do refuse to deliver them unto me I may have either an Action of Debt or an Action of Accompt for them against him to whom there were delivered at my election 22. Ap. 1651. B. S. Deeds Such construction ought to be made of a Deed that it may agree with the intent of the parties to the Deed if their intent do not contradict the Rule of Law Hill 22. Car. B. r. A Deed of Indenture made betwixt two ought to be Sealed and Delivered by both parties to the Indentures otherwise it cannot be said to be a Deed indented Trin. 23. Car. B. r. If all the parts of a Deed may by Law stand together no one part of that Deed shall be so interpreted as to make either the whole Deed or any part of it to be voide Pasc 24. Car. B. r. A Deed cannot be delivered as an escrew to the party himself who is to take by the Deed. Trin. 24. Car. B. r 1650. Trin. B. S. For the delivery of it makes it the parties Deed. If a Deed do say This Indenture made whereas the Deed is not endented yet it may be a good Deed for it may work as a Deed Poll though it cannot work as an Indenture If it do not appear by the Fabrick of a Deed that Lands do pass by the Deed by way of Feoffment yet the Land may pass by it by way of use if there be a consideration which is sufficient in Law to raise a use expressed in the Deed. Ejectment IF one Seal a Lease of Ejectment to try a title of of Land it is not necessary to give notice of the sealing of this Lease unto him whose title is concerned but it is sufficient
Mich. 23. Car. B. r. But Q Whether they will grant it because by the Writ of Error their hands are foreclosed but now by the late Act a Writ of Error is no Supersedeas and so the Law in this point is altered In a Judgement given for the Plaintiff to recover a sum of money the sum must not be written in figures for if it be it is error but it must be expressed in words at length Mich. 23. Car. B. r. For a Judgement consists in words and words are made of letters and not of figures which can spell nothing If a Judgement be given upon an Issue tryed in a cause wherein there is also matter of Law in dispute upon another Issue in that cause before the matter in Law be determined yet the Judgement is good Hill 23. Car. B. r. Upon the Affirmance by the Parliament of a Judgment given in this Court and removed by a Writ of Error brought in Parliament to reverse this Judgement the Parliament useth to have a Remittitur entred upon the Judgement Roll to send it back into this Court that this Court may award Execution upon the Judgement Hill 23. Car. B. r. For Execution ought alwayes to Issue out of that Court where the Judgement was given If a prisoner which is Endicted for Felony will not plead to the Endictment he is by the Law to be pressed but if a prisoner endicted for Treason will not plead at all to the Endictment or answers impertinently and not to the purpose judgement shall be given against him as if he were found guilty Pasc 23. Car. B. r. In Sir John Stowels Case as I remember If there be not four dayes of a Term to come after a Postea is returned in Court before the Term be ended so that the Defendant cannot have four dayes liberty to speak in Arrest of Judgement as by the course of the Court he ought to have there ought not to be any Judgement given in the cause untill the next Term after that the Defendant may have so much time to speak in Arrest of Judgement as he ought to have Pasc 24. Car. B. r. If a Judgement be but seven years old the party may by the course of the Court have a Scire facias to revive it without moving of the Court for it and if the Judgement be under ten years old the party may move for a Scire facias to revive it at the side Bar but if it be ten years old or more a Scire facias to revive it must be moved for in Court Pasc 24. Car. B. r. One may speak in Arrest of a Judgement given upon a nihil dicit at any time during the same Term that the Judgement was obtained Pasc 24. Car. B. r. For the Defendant is more favoured in a judgement given against him upon a nihil dicit then where a Judgement is given against him upon a Verdict because in the former Case he makes no defence but in the latter case it is intended he hath made his full defence Where one entire Judgement is given against two several persons and one of them is an Infant the whole Judgement is void Trin. 24. Car. B. r. For it being void to the Infant and being an entire Judgement which cannot be divided it must necessarily be void as to the other and so void in toto If a peremptory rule be given for the Defendant to plead at a certain day if he do not plead accordingly the Plaintiff may enter Judgement against him without any further moving of the Court Trin. 24. Car. B. r. For it was the favour of the Court to give him that day to plead and if he make no good use of it it is his own fault and the Court will not further delay the Plaintiff If the Plaintiff do demur to the Defendants Plea and the Defendant do joyn in the demurrer if the Plaintiff will not maintain the demurrer Judgement shall be given against him Trin 24. Car. B. r. For thereby it is implyed that he confesseth the Defendants Plea to be good and consequently that he hath no cause of Action That which a Judge of this Court doth act in his Chamber as a Judge of this Court is accounted to be done in Court Trin. 24. Car. B. r. For it is in order to the proceedings in the Court Q. Where a Judgment is entire it cannot be reversed in part and stand good as to another part but if it be not an entire Judgement it may Trin 24. Car. B. r. For an entire Judgment cannot be divided to make one part of it good and another part of it to be erroneous If the Plaintiff do give the Defendant two rules for him to plead according to the course of the Court and the Defendant do not plead when the time of those two rules are out the Plaintiff may enter a Judgement against him upon a nihil dicit but not before Mich. 1644. B. r. If a man bring an Action of Debt against two Executors and they plead they have not Assetts and thereupon Issue is joyned and it is found that one of the Executors had Assetts at the time of the Action brought but that the other Executor had not Assetts the Plaintiff shall have Judgement to recover the Debt against that Executor who was found to have Assetts and a nil Capiat per billam shall be entred against the Plaintiff as to the other Executor who was found to have no Assetts Mich. 24. Car. B. r For the possession that one Executor hath of the Testators goods is not the possession of the other Executor It is against the course of practice in this Court to admit the principal to acknowledge a Judgement for his Bail but in the Common Pleas they use to admit it Mich. 1649. B. S. But it is said that the Common Pleas will not admit it now since the rules of regulation made If in an Action of Trespass and Ejectment brought to try the title of the Land the owner of the Land whose title is concerned will not save the party that is made Ejector harmeless from all prejudice that may befall him by reason of the Suite he may confess Judgement unto the Plaintiff for the Land in question Mich. 1650. B. S. For to avoid further trouble and charge by reason of the suite which concerns him not either in gaine or loss If a Judgement is given which is not warranted by the Verdict upon which it is given that Judgement is not good Mich. 1649. B. S. If a Judgement given in an inferior Court be not according to the ancient form of Judgements given there such Judgement is erroneous and this Court will reverse it upon a Writ of Error brought Pasc 1650. 24. Maii. B. S. If an Action of Trespass or Trover and Conversion be brought for divers several things and the Verdict doth finde that the Defendant had but some of the things for which the Action was brought yet the
a Messuage is an entire thing of it self and cannot be apurtenant to another thing Non-sute UPon a Trial when the Jury comes in to deliver in their Verdict and the Plaintiff is called to hear the Verdict If he do not appear after he is thrice called by the Crier of the Court he is to be Non-sute and the Non-sute is to be recorded by the Secondary by the direction of the Court at the prayer of the Defendants Councell Hill 21. Car. B. r. When a Plaintiff is Non-sute if he will again proceed in the same Cause he must put in a new Declaration and cannot proceed upon that Declaration whereupon he did proceed in the Cause wherein he became Non-suite 22. Car. B. r. 16. Ap. 1650. B. S. For by his being Non-suit it shall be intended that he had no such cause of Suite as he deelared in and so that declaration is void The King of Spain hath been Non-suit in England Mich. 22. Car. B. r. And this stands with reason for if a foraign Prince will take the benefit of the nationall Laws here he must proceed and stand to the Rules and orders of the Court wherein he prefers his Action If the Plaintiff will not proceed upon his Declaration as he ought to do by the Rules of the Court the Defendant may Non-suit him Mich. 1649. B. S. Although upon a tryal the Plaintiff be called to hear the Verdict and do not appear to hear the Verdict when he is called and thereupon the Court direct the Secondary to record the Non-suite yet if afterwards the Plaintiff do appear before the Non-suite be actually recorded the Court may proceed to take the Verdict Trin. 1651. B. S. For it is not a Non-suit untill it be recorded by the Secondary and then it is made part of the record and is in the nature of a Judgement against the Plaintiff If the Plaintiff be not ready at the tryal with his Record when the Jury is called the Court will call him Non-suit By Rolle Chief Justice 1651. B. S. For it shall be intended he will not proceed in his cause any further Nolle Prosequi A Nolle Prosequi is where there are divers Issues joyned between the Plaintiff and the Defendant and the Plaintiff enters upon the Roll a Nolle Prosequi That is to say that he will not proceed upon one or more of the Issues joyned and yet he may proceed to tryall upon the rest of the Issues Hill 23. Car. B. r. Nusance A Nusance made in a Port or Haven by the sinking of a Ship there ought to be removed by the owner of the Ship and if he do it not he may be endicted for it as for making a Common Nusance 21. Car. B. r. For it is prejudicial to the Commonwealth in hindering of Trade An Action upon the Case ought to be brought against one that makes a private Nusance and he ought not to be endicted for it Pasc 23. Car. B. r. For Endictments ought to be in the Kings name and do presume to be preferred for offences done against the publike A common Nusance may be abated or removed by those persons who are prejudiced by it Pasc 23. Car. B. r. Nomine Poenae A Nomine Poenae for the non-payment of a Rent ought to be legally demanded if the Rent be behind as well as the Rent is to be demanded before the grantee of the Rent can distrain for it 21. Car. B. r. For the Nomine Poenae is of the same nature as the Rent is and is issuing out of the Land out of which the Rent doth issue Notice The Plaintiff and Defendant are both bound at their perill to take notice of the general Rules of practice of this Court but if there be a special particular Rule of Court made for the Plaintiff or for the Defendant he for whom the Rule is made ought to give Notice of this Rule unto the other or else he is not bound generally to take notice of it nor shall be in contempt of the Court although he do not obey it Pasc 24. Car. B. r. Mich. 1649. B. S. For general rules are the general practice of the Court whereof every one must take Notice of that hath to do there but particular rules are made upon particular and extraordinary matters happening in the proceedings upon the motion of one of the parties made to the Court of which the other may be ignorant The Court is bound Ex Osicio to take Notice of all matters which do appear upon the Record depending before them but of matters Dehors viz. to search the Almanack for dayes and to compute times mentioned in the Record they are not bound Ex Oficio to do it 21. Car. B. r. 24. Car. B. r. Q. The Court is not bound to take Notice of the new stile but of the old English stile 21. Car. B. r. For the old is that whereby all accounts in the Common Law are guided and not by the new which is foreign and goes ten dayes before the English stile or account The Plaintiff ought to give the Defendant eight dayes Notice exclusive before he executes his Writ of Enquiry of Dammages or else the Court will quash it although he have executed it and put him to a new Writ of Enquiry upon the motion of the Defendant made to the Court of his want of such Notice and proof thereof by Affidavit Trin. 22 Car. B. R. and Pasc 1652. B. r. Exclusive is meant that the day upon which the Notice is given is not to be one of the eight dayes but the Writ is to be executed upon the ninth day and so long Notice is to be given that the Defendant may have time sufficient to defend himself by his Councel and Witnesses upon the evidence given against him before the Sheriff and the Jury by the Plaintiff The Common Law doth not take Notice of the intentions of the party to do any unlawful Act except it be in case of high treason Trin. 22. Car. B. r. For mans Law is to regulate the words and Actions of men and not the thoughts of which it cannot have conusanse But Gods Law extends to the thoughts This Court is to take Notice of a general Ordinance of Parliament viz. such a one as concerns the Publique but not of a Parliament Ordinance which concerns some particular persons Mich. 24. Car. B. r. Except such particular Ordinance do appear before them by pleading or otherwise If a Declaration be put into the Office although it be not filed yet is the Defendants Atturney bound to take notice of it Mich. 22. Car. B. r. For it is the Duty of the Plaintiffs Atturney onely to put the Declaration into the Officer and the Officer in the Office is to file it and though it be not filed yet may the Defendants Atturney take a Copy of it None is bound by the Law to give Notice to another of that which that other person may otherwise inform himself
the Court of Admiralty do draw the matter ad aliud examen that is to try it by the Civil Law Trin. 23. Car. B. r. And therefore this Court will use their Authority at any time to stay their proceedings in the Admiralty although the Defendant have by his incautelous pleading allowed their Jurisdiction It is not necessary for him that Libels in the Court of Admiralty to shew in his Libel that the Common Law bath no Jurisdiction of the matter for which he Libels but he that prayes a Prohibition to the Admiralty in this Court must suggest something wherein in respect of the Cause depending there and for which he prayes the Prohibition that Court hath no Jurisdiction of the Cause Hill 23. Car. B. r. For the Admiralty cannot determine whether the Common Law have Jurisdiction or not and therefore it would be a vain allegation but this Court can judge of the Jurisdiction of the Courts of Common Law and can determine whether other Courts do intrence upon their Jurisdictions or not If the Court of Admirality do hold plea of any matter which is not maritime although the thing were done upon the Sea yet this Court will grant a Prohibition to stop their proceedings Hill 23. Car. B. r. For the Court of Admiralty hath only Jurisdiction in maritime Causes viz. such as only concern sea-affairs and not of all matters done at Sea as Contracts c. the Tryal whereof belongs to the Common Law This Court will grant a Prohibition to the Admiralty if there be cause for it although that a consultation have been granted in the Court of Common Pleas in the same cause Hill 23. Car. B. r. This Court ought not to deny the party a Prohibition that doth pray it if there appear cause for a Prohibition for it is not a thing arbitrary or ex gratia curiae to grant it or not to grant it Hill 23. Car. B. r. For to deny it were to deny Justice to the party in denying him the benefit of the Common Law which is every free-born English mans birth-right A Prohibition may be granted to the Spiritual Court after a sentence given in the Cause in that Court for which the Prohibition is prayed if there be cause but the Court will not do it untill they have heard Councell speak on both parts to inform their consciences although before a sentence they use to grant it upon a bare suggestion of the party Tuesday 2. July 1650. B. S. and Pasc 1652. B. S. For a sentence in an Ecclesiastical Court is in the nature of a Judgement given at the Common Law and presumed to be given upon mature deliberation and therefore this Court will not but by good advice make a sentence there given void or hinder the execution of it A Prohibition doth not lie to the Court of Admiralty in the cases of Felony yet if there be cause this Court will grant a Certiorari to remove the Cause hither By Rolle Chief Justice in Dothicks Case 29 Oct. 1650. B. S. Q. Tamen quia curia advisare vult Pleas and Pleadings If an Action be grounded upon a Statute there the Statute must be precisely set forth in pleading but if a Statute recited be but an inducement to the action there it is not necessary to recite the Statute precisely Hill 21. Car. B. r. For if the Statute be not precisely recited the Defendant cannot tell how to plead to the Statute As a plea in bar may go per partes so may in like manner a plea pleaded in abatement of a Writ Hil. 21. Car. B. r. A Plea is then said to go per partes as I conceive when one part of it goes to one part of the Declaration and another part of the Plea answers another part of the Declaration One that appears in Court upon a Habeas Corpus ought to plead the same Term wherein he comes in Hill 21. Car. B. r. If the Defendant do not plead according to the Rules of the Court so that the Plaintiff may enter Judgement upon a Nihil dicit yet if after the Rules are out the Defendant do put in his Plea into the Office before the Plaintiff hath entred his Judgement this Plea is to be accepted and the Plaintiff ought not then to enter his Judgement and therefore it behoves Attorneys to be vigilant in their practice 21. Car. B. r. and 23. Car. Hill For a Judgement upon a Nihil dicit is for want of a Plea but in this Case here is a Plea and if such a Judgement should be entred it would be in facto an irregular Judgement If the Defendant in an Ejectione firmae do not plead in time according to the Rules of the Court the Plaintiff may after the Rules for pleading be out move the Court to set a short day for him to plead which will be granted if the Land lie neer at hand and if the Defendant do not plead at the time set by the Court the Plaintiff may enter Judgement upon a Nihil dicit 21. Car. B. r. But now such motions are not usual for Judgement may be entred of course A forraign Plea is to be put in upon Oath of the Defendant that is he must swear his Plea is true or else such a Plea is not to be received Mich. 22. Car. B. r. Mich. 24. Car. B. r. A forraign Plea is when the Defendant doth plead such matter that if it be true the cause cannot be tried in this Court and in regard that thereby the Defendant doth endeavour to hinder the proceedings of this Court and to delay the Plaintiff therefore the Court will make him swear his Plea to be true that the Court may not be deluded nor the Plaintiff trifled with by a false Plea and if he will not swear his Plea to be true the Plaintiff may enter Judgement for want of a Plea Trin. 1650. B. S. If an Action of Debt be brought upon an erroneous Judgement the Defendant may plead Null tyel Record that is that there is no such Record as he frames his Action upon Mich. 22. Car. B. r. For that which is erroneous is accompted in Law as null and void If the Defendant do plead a dilatory Plea the Court at the Plaintiffs motion will order him to plead such a Plea as he will stand to Mich. 22. Car. B. r. For the Law favours not delayes whatsoever is vainly babled by the ignorant to the contrary And if he be ordered to put in a Plea to which he will stand and he do it accordingly if such his Plea be not good the Court will not permit him to amend it but the Plaintiff shall take advantage of it by demurring upon it or otherwise as he shall be advised In any Action wherein the Plaintiff in case he recover shall only recover Dammages the Defendant may plead in Barre to this Action an arbitrement with satisfaction thereupon made unto the Plaintiff Mich. 22. Car. B. r. For if the Plaintiff have
ruled to put in a better Plea but upon over-ruling of a Plea which is Pleaded in bar of the Action Judgement shall be given against the Defendant for such a Plea is peremptory Trin. 24. Car. B. r. But a Plea in abatement is onely dilatory and is not to bring the matter in question to an Issue but to delay the Plaintiff If a Plea be put into the Office in due time it is well enough although it be not delivered to the Atturney of the Plaintiff Trin. 24. Car. B. r. So that he may not enter Judgement for want of a Plea In an Action of Debt brought for Rent upon a Indenture of Demise for years the Defendant may Plead payment without shewing the Deeds for the Lease shall be intended to be in being at the time of the Action brought Trin. 24. Car. B. r. A colourable Plea ought to be entred but that which is no Plea ought not to be entred Trin. 24. Car. B. r. For a Colourable Plea is a Plea untill it be over-ruled Q Whether one may Plead a Lease for years by Indenture without shewing the Indenture Trin. 24. Car. B. r. In an Action of Debt brought upon an Obligation the Defendant is not bound to Plead untill he have Oyer of the Condition of the Obligation Trin. 24. Car. B. r. But he may Plead without Oyer of it if he please and if he do Plead without Oyer he cannot afterwards have Oyer of it If one Plead a Plea that is not good and the Plaintiff doth demur upon it he cannot afterwards amend that Plea without the Plaintiffs consent Mich. 24. Car. B. r. For the Defendant shall not take advantage of his own ill Pleading to delay the Plaintiff and to put him to more trouble then by the Law he may do A Dilatory Plea ought to be Pleaded upon the giving of the first rule in the Office for the Defendant to Plead and a Plea in the chief must be pleaded after the second Rule given in the Office for the Defendant to Plead and this is the reason that Judgement cannot be entred against the Defendant for want of a Plea untill the time given by the two rules to Plead be past Mich. 24. Car. B. r. The ancient course of practice was for the Defendant to put in his Plea into the Office before that the Defendants Atturney did deliver it to the Plaintiffs Atturney Mich. 1649. B. S. The Master of the Office of the Upper Bench ought not to suffer the original Pleas to be delivered out of the Office but onely Copies of them Mich. 1649. B. S. For by the Pleadings in the Office are the Pleadings made up for the Issue to be tryed and if any question arise about altering of them they are to he examined and rectified if any alteration be by the Pleas in the Office A Plea that is grounded upon a Statute if it be not good is not helped after a Verdict Mich. 1649. B. S. For the Statute being the foundation of the Plea if it be not well laid the Plea is naught in the very substance of it and such Pleas are not helped by the Statute of Jeofailes If an Action be brought in this Court to recover Lands and the Defendant emparls yet he may as it hath been held Plead that the Lands in question are ancient Dernesne and demand Judgement whether this Court may hold Plea of them but if he plead to the Defendant and make a full defence he cannot after that plead to the jurisdiction of this Court Mich. 1649. B. S. 8. Ap. 1650. B. S. Pasc Q. For it hath been doubted and held it could not be after Imparlance Pasc 1650. 4. Maii. If the Plaintiffs Atturney deliver an imperfect Declaration to the Defendants Atturney and he accept of it yet he is not bound to Plead untill the Plaintiff have perfected his Declaration Mich. 1649. B. S. For untill it be perfected it is no Declaration Q. Whether he may not demur to it If it be doubtful between the parties whether a Plea be good or not it cannot be determined by the Court upon a motion made that the Court would deliver their opinions whether it be good or not but there ought to be a Demurrer upon the Plea and upon hearing of arguments thereupon the Court is to judge whether that Plea be good or bad Hill 1649. B. S. Jan. 26. If an indenture be onely Pleaded by way of inducement it is not necessary to say per indenturam suam in curia hic prolat but if the party do derive any title unto himself by the indenture Pleaded he must Plead it so Hill 1649 B. S. Jan. 26. That the Court may judge whether the title he makes by the Indenture be warranted by it and that the other party may consider what answer to give unto it If an Action be laid in London and be afterwards removed by a Habeas Corpus into this Court the Defendant ought to Plead the same Term the cause is removed and proceed to a tryal Hill 1649. B. S. 9. Feb. For the Court will not grant the party to take any advantage by the removing of the cause hither to delay the other party in the course of his proceedings If an immaterial Issue be joyned it is not helped by the Statute of Jeofailes but there ought to be a repleader Pasc 1650. 5. Maii B. S. vid. Issue A Plea that the Plaintiff hath not taken the Engagement according to the late Act ought to be Pleaded in this manner petit advisamentum curiae si volunt procedere quia querens non subscripsit engageamento And when the Plaintiff hath subscribed the Engagement and made it appear to the Court that he hath done it it shall be entred upon the Roll Quod querens subscripsit engageamento and then the Plaintiff may proceed It may also be averred upon the Roll that the Plaintiff hath not taken the Engagement although he have Judgement in the cause and thereby Execution shall be stayed untill he have subscribed it Trin. 1650. B. S. 3. July Now all this Pleading is out of doors by the taking away the Act made for the subscribing of it by an order of the Protector and his Councel If the Defendants Plea do not answer all the matter contained in the Plaintiffs Declaration it is no good Plea but the Plaintiff shall have his Judgement intire against him for want of a Plea although the Declaration be nought in some part of it Hill 1650. B. S. 31. Jan For although the Defendant was not bound to have Pleaded to the Declaration but might have Demurred unto it for the insufficiency of it yet the Defeudant not doing it it shall be intended he had no cause for it and then not Pleading Judgement may be entred against him When a Plea is Pleaded the Atturney ought to set his hand to the Plea and then the Issue is joyned and if he will not set his hand to the Plea Judgement may be entred
of Error if he do proceed and take out execution upon the Judgment it is no contempt to the court Mich. 1649. B. S. For it shall not be presumed he knew there was a Writ of Error brought yet though it be no contempt in him to take out the Execution yet the Execution shall be superseded quia improvide emanavit for by bringing of the Writ of Error the hands of the Court where the judgment was given were foreclosed from proceeding any further Replevin A Replevin ought to be certain in setting forth the number and kindes of the Cattell distrained or else it is not good because if it be incertain the Sheriff cannot tell how to make deliverance of the Cattel because he knows not particularly what the cattel are that were distrained Trin. 23 Car. B. r. Replication If the Plaintiff do Reply to a Plea in Bar which is not good by his replying to it he hath confessed it to be good Trin. 23. Car. B. r. And so it shall be now taken to be for he hath lost his advantage of demurring unto it by passing by the defects of it and replying unto it If an Action for the breach of the condition of an Obligation be brought and the Defendant do plead that he hath performed the condition the Plaintiff in his Replication must shew in what particularly the Defendant hath broken this condition Pasc 24. Car. B. r. That the Defendant may be able to give a particular answer to the breach assigned and if he do not assign a particular breach his Replication is idle for it sayes no more then what was formerly said in the Declaration Reservation If the Lessee for yeers assign over all his term to another and reserve a Rent the Reservation is void Pasc 24. Car. B. r. For by the assignment of the whole term he hath no interest in the thing let for the which he can challenge any Rent to be due Recovery A Recovery cannot destroy a thing executory which doth depend upon a contingency Pasc 24. Car. B. r. Because it was uncertain at the time of the Recovery suffered whether it would ever be or no and a Recovery will not work upon so remote and uncertain an estate If a Recovery be suffered by Baron and Fem of Lands whereof the Fem hath an estate in Fee Simple although there was no Tenant to the precipe of the Lands yet this Recovery shall be a good estople against the Baron and Fem and their Heirs but it would be otherwise if the Lands had been Entailed at the time of the Recovery By Rolle Chief Justice Mich. 1650. B. S. 8. Nov. It is not necessary for the Judge to examine a Fem Covert when she joyns with her husband to suffer a Recovery of her own Lands yet it is prudential to do it Trin. 1651. B. S. By Rolle and he said that he used to do it Release If the Defendant in an ejectione firmae will not defend the title of the Land in case the Verdict pass against the Plaintiff the Ejector may Release the dammages to the Plaintiff Hill 1649. B. S. 11. Feb. For he is the Defendant in Law although the title do not concern him and it is the others fault that he was not himself made Ejector to defend the title One is not bound to give a Release unto the Sheriff for moneys which he receives from him which he levyed for him by vertue of an Execution but he must give him a note under his hand that he hath teceived it Hill 1650. B. S. By Rolle Chief Justice Q. tamen Whether he be bound to give him such a note for the Sheriff is an Officer of the Law and upon payment of the money the Law gives him his discharge Recital and Misrecital If a Statute be Misrecited in pleading in a matter which goes to the ground of the Action which is brought upon the Statute it is not helped after a Verdict by the Statute of Jeofailes but if it be Misrecited onely in a circumstancial matter and which goes not to the ground of the Action it is helped after a Verdict by that Statute Trin. 1650. B. S. For the Statute helps onely matters mispleaded in matter of form and not matters of substance Report By the custome of the Court the Secondary ought not to make any report of any matters referred unto him by the Court upon the last day of the Term for that day is properly appointed for motions onely Trin. 1650. B. S. Reversion If one have a Reversion expectant upon a Lease for years he may make a Lease of this Reversion unto the Lessee for years for one year and after make a Release in Fee to the Lessee for years of the Reversion and by this conveyance the Reversion in Fee will pass to the Lessee Mich. 1650. B. S. Reference Matters of Fact betwixt the party in a cause depending in Court are not to be Referred to the Secondary for such matters are tryable by the Jury that is to try the cause but matters concerning the due proceedings or undue proceedings in the cause by either of the parties are properly to be Referred unto him and for him in some cases to compose the differences and in others to make his report to the Court how the matters do stand Pasc 1650. B. S. If a matter in difference betwixt the Plaintiff and the Defendant be referred to the Secondary and one of the parties will not attend at the time appointed to hear the business referred the other party may proceed in the Reference alone and get the Secondary to make his report without hearing of the other party Trin. 1651. B. S. For one party cannot compell the other to attend and therefore such References would many times take no effect for want of the presence of both parties if a report may not be made notwithstanding one of them refuseth to attend Right Lands between the high water Mark and the low water Mark do appertain to the Lord of the Manor next adjoyning of Common Right Pasc 23. Car. B. r. By Rolle Q. tamen Whether they do not rather belong to the King for it hath so been held Scire Facias ONe may have a Scire Facias to revive a Judgement upon which no Execution was taken if it be but seven years past since the Judgement was had without any motion to the Court for it and if it be under ten years since the Judgement was had a Scire Facias may be moved for to revive it at the side Bar but if it be above ten years since the Judgement was had a Scire Facias may not be had without moving the Court for it Pasc 24. Car. B. r. But the Court will not deny it if it be moved for The side Bar is a place where a rail or bar is set up neer to this Court below the Court in Westminister-hall where the Judges stand and rest themselves before the Court sits and where they put on their
adjoyning in repaire for thereby he claims particular interest in it 1651. B. S. Wager of Law The Defendant cannot Wage his Law in an Action which doth arise upon a realty but onely where the Action is personal Trin. 22. Car. B. r. And therefore if an Action be brought for the Arrerages of rent the Defendant cannot Wage his Law for the Rent doth arise out of the Land and Sounds in the realty The manner of Waging of Law is this He that is to Wage his Law stands at the end of the Bar towards the right hand of the Chief Justice and the Secondary askes him whether he will Wage his Law if he answers that he will the Judges admonish him to be well advised and tell him the danger of taking a false Oath and if notwithstanding he persist then the Secondary speaks words to the effect following unto him and he that Wageth his Law doth repeat every sentence distinctly after him Hear ye this ye Justices that I W. S. do not owe to B. B. the sum of naming the sum in the Declaration nor any penny thereof in manner and form as B. B. hath declared against me So God me help and then he kisseth the book But before he takes the Oath the Plaintiff is called by the Cryer thrice and if he do not appear then the Defendant goes quit without taking his oath but if he appear then he must take his oath and then he is discharged without pleading Mich. 22. Car. B. r. Because if the Plaintiff do not appear to hear the Defendant perform his Law he is non-sute Pasc 24. Car. B. r. The reason why Wager of Law is suffered is because the contract upon which the Action is brought being a private contract and not to be proved it may be intended that the discharge may be in private and not to be proved otherwise then by the Oath of the party whom the Law will not presume will take a false oath Hill 1649. B. S. 31. Jan. If one bring an Action of Debt upon a concessit solvere as it is used to be done in Bristol and some other places the Defendant may Wage his Law Hill 1650. B. S. 5. Feb. If the Defendant do tender his Law in Court and is ready to perform it and the Plaintiff being called doth not appear he shall be non sute and pay costs but then he may bring another Action for the Debt if he please but if the Plaintiff do appear and the Defendant doth make his Law then the Plaintiff shall never bring another Action for that Debt but shall be barred for ever Mich. 1650. B. S. 22. Nov. For it is as much as if a Verdict passed against him Words A Latin word used in pleading which word doth signifie divers things is nevertheless well used to express that thing which is intended to be expressed by it if there be an Anglice joyned with it Hill 21. Car. B. r. For by the word Anglice it is explained what the party doth intend it shall signifie in English This was more useful to be known when all pleadings in Law were in Latin Words which may be taken or interpreted in a general and common sence ought not to receive a strained and unusual construction Hill 21. Car. B. r. For it is likely the party that used them had a plain and common meaning in them and not a strained and unusual Words which are in themselves uncertain may nevertheless be made certain by subsequent or following words Mich. 23. Car. B. r. Although Words were not Actionable in themselves at the time of the speaking of them yet if an Action be brought for the speaking of them they may be made Actionable by the Defendants pleading by justifying of the Words Mich. 22. Car. B. r. For it may be that in such his justification he may explain in what sence he spake them which did not appear plainly before These Words you are a Knave spoken generally will not bear an Action but if one call another Knave and apply the words particularly to the profession of him against whom they are spoken as to call an Atturney at Law Knave and to apply it specially to him in relation to his practice as an Atturney an Action upon the Case will lye for speaking of them Hill 22. Car. B. r. For by the application of them they import a special dammage done to the party by the speaking of them A word which is written short or abreviated without a dash is not good Hill 22. Car. B. r. For the dash or turning up of a stroke or dash with a pen at the end of it is the general mark or signe to distinguish an abreviated word from a word written at length Incertain words in the Count or Declaration may be made good and certain by a plea in Bar. Hill 22. Car. B. r. To wit by the Defendants taking notice of the meaning of them in his plea. The different placing of the same words may cause them to have a different sence or construction Pasc 23. Car. B. r. The Court ought so to order the words of a Will that they may receive such a construction that may agree with Law although by their misplacing they cannot receive such a construction Pasc 23. Car. B. r. Vt res magis valeat quam pereat Words in a Will as they may be diversly penned may either destroy a condition or create a condition where there was none before Pasc 23. Car. B. r. Morage of a Ship is when the Ship lies on the ground in the More Mire or Mudd within a Haven or Harbor and doth not float upon the watter Pasc 23. Car. B. r. The Ansty of the City of York is that part of the County of the City which extends without the City and is a hundred which is within the jurisdiction of the City and was added to it by Act of Parliament Pasc 23. Car. B. r. The word relaxavit doth not amount to a surrender in the case of a common person much less in the case of the King Trin. 23. Car. B. r. But it amounts onely to a release which differs much from a surrender as appears by Litleton in his tenures The word interest for borrowing of money shall be intended eight pounds a year per centum if the contrary be not shewed Trin. 23. Car. B. r. This was when money was at eight in the hundred but now it shall be intended six pound in the hundred The words of a Statute ought not to be so interpreted that thereby natural Justice will be destroyed Hill 23. Car. For it is not the intent of any particular Law of a Land or Nation to destroy the general universal Law of nature The word Simul is not a word copulative when it is joyned with the word et Trin. 24. Car. B. r. But Simul cum are words copulative Where there is a Latin word in a Declaration which is falsely Englished the English word shall be adjudged void
to defraud the Plaintiff of his appearance but the Atturney ought by the Rules of the Court to appear for him according to the Rules of the Court notwithstanding his Warrant be so repealed Trin. 22. Car. B. r. If an Atturney do practice deceitfully an Attatchment lies against him out of this Court at the prayer of the party grieved if he make it appear to the Court and good costs shall be given against him 22. Car. B. r. An Atturney and his Clerk were both committed by the Court for entring things against express Rules of the Court and after notice of those Rules given them by the Atturney of the other side 22. Car. B. r. One Atturney ought not to suffer another Atturney to practice in his name by reason of many inconveniencies that often happen to the Clyents by this means 22. Car. B. r. One G. H. an Atturney was ordered to be put out of the Roll of Atturneyes for entring a judgement against an express Rule in Court Mich. Car. 22. B. r. but it was not done The proper place for the Atturney General to sit upon any special matters wherein his attendence is required in Court is under the Judges on the left hand of the Clerk of the Crown Mich. 22. Car. B. r. No Under Sheriff ought to be Atturney for it is often the cause of encreasing of Suits and also a hindrance in dispatch of Clyents causes Trin. 23. Car. B. r. If the Atturney of the Plaintiff or Defendant do dye hanging the Suite and the other party whose Atturney is dead have notice given of it and will not retain another Atturney to prosecute for him the other party may proceed and is not bound to hinder his Clyents cause for it Mich. 23. Car. B. r. The Plaintiff or Defendant may change his Atturney pending the Suite without leave of the Court but it is not fair practice to do it without just cause Mich. 23. Car. B. r. It was the old course in proceeding in an Action of Trespass and Ejectment to deliver the Lease of Ejectment to the party to whom the Plaintiff had made a Letter of Atturney to execute the Lease and for the Atturney to deliver possession of the Land upon the delivery of the Lease Pasc 24. Car. reg If one have a Letter of Atturney to deliver a Deed to another and also authority from the party by word of mouth to do it he may make use of which of these he will to do it by but not of both for the first that he makes use of shall be effectual and the other shall be void Pasc 24. Car. B. r. An Infant ought not to appear to an Action by an Atturney but by his Guardian for he cannot retain an Atturney but the Court may assigne him a Guardian Pasc 24. Car. B. r. The Atturneys ought to be ordered in the ordinary manner of their practice by the Master of the Office and if differences arise betwixt them concerning it he is to hear both parties and to order the matters in difference betwixt them and they are to submit to him Pasc 24. Car. B. r. and the Court is not to be troubled but in extraordinary and difficult matters If there be divers Defendants declared against in one Declaration the Atturney in the cause on the Defendants part cannot be compelled to appear for more of the Defendants then for those from whom he hath Warrant to appear 24. Car. B. r. If one retain one by Warrant to be his Atturney in a Suite depending against him in this Court he may appear for him by that Warrant in all Suites which are there depending against him Hill 1649. B. Sup. Atturneys ought to be of some Inns of Court or Inn of Chancery and not to lodge in Inns or Ale-houses or in private places By Roll chief Justice Hill 1649. B. Sup. 8. Feb. Atturneys of the Upper Bench ought to be allowed in all Circuits as the Atturneys of the Common Pleas are although it hath been denyed them in the Western Circuit and ought not to be compelled to pay extraordinary Fees for practising there per Rolle Pasc 1650. 1. Maii. vid. 1. H. 7. f. 12. a. that the Atturneys of the Upper Bench are not Atturneys upon Record Ergo quaere An Action upon the Case lyes for the Clyent against his Atturney if he plead a Plea for him for which he hath not his Warrant Hill 49. B. Sup. The Atturneys of this Court were ordered from hence forth to besworn as the Atturneys of the Common Pleas are by Rolle Pasc 1650. 1. Maii B. Sup. One cannot force an Atturney to be his Atturney against his will by Rolle Chief Justice One may be an Atturney for a Clyent upon Record and yet another Atturney may act all the business for this Clyent An Atturney that hath Warrant to appear for his Clyent may plead for him without another Warrant by Rolle Chief Justice See Q. for divers Clerks in Court said privately that he cannot plead no any other Plea for his Clyent without a special Warrant but a non sum informatus If an Attnrney dye pending his Clyents cause his Warrant of Atturney is determined and his Clerk may not proceed in the Suite without another Warrant by Rolle Chief Justice Actions There ought to be both apparent malice in the Defendant and prejudice also done to the Plaintiff to ground an Action upon the Case upon or else it will not lye for if there be only malice and no dammage done by it there can be nothing recovered and so the Action will be vain and to no purpose and if there be only dammage and no malice it is but damnum sine injuria and not punishable by Law Hill 21. Car. B. r. Where there are two several dammages done to the party he ought to have two several Actions and not to joyn them in one Action Entred Oct. 156. 20. Car. Hill 21. Car. B. r. Although dammage without wrong will not maintain an Action nor malice without dammage yet malice may aggravate the dammages recoverable where there is dammage and wrong meeting together Hill 21. Car. B. r. Where two Actions though of several natures do depend one upon the other the abatement of one of the Actions is the abatement of both Hill 21. Car. B. r. In an Action upon the Case grounded upon a promise the Declaration is Actio in super casum in the singular number although the Action be brought upon divers promises for the word Case includes all 21. Car. B. r. An Action brought against a Constable for a thing done by him by vertue of his Office ought by the Statute to be brought against him in the County where he is Constable and not else where 21. Car. B. r. A Transitory Action may be laid in any County at the will of the Plaintiff yet generally and it seems the better and more indifferent course so to do it useth to be laid in that County where the cause
this debt at a day to come the party to whom he made this promise cannot bring his Action for the Debt untill the day be passed upon which he promised to pay it By Rolle Chief Justice and by German Justice for he said that the promise is a suspention of the Debt pro tempore 29. Jan. 1650. B. S. If one promise unto a woman that in consideration that she will marry with him he will intermarry with her this is a mutual promise and an Action lies by either party against the other for breach of it 18. Ap. 1650. B. S. Appeal In a Writ of Appeal all the pleadings ought to be in French Mich. 22. Car. B. r. This is since altred by the late Statute that Enacts all proceedings in Law to be in English If in an Appeal the Defendant plead in abatement of the Writ and the Writ be adjudged good it is peremptory and he shall not be permitted to answer over but shall be condemned upon the Writ Mich. 22. Car. B. r. In an Appeal the Appellant ought to appear in Court in person yet upon a motion to the Court the Court may admit him to prosecute his Suite by his Atturney Mich. 22. Car. B. r. The defect in any Process in an Appeal doth discontinue all the Appeal and makes an end of the Action as well as a defect in the Original Writ Hill 22. Car. B. r. Age. If the question be whether the party be of full Age or within Age it shall be tryed by the Court by inspection of the party and not by a Jury Hill 22. Car. B. r. Advantage It is not good practice to take an advantage against the Defendant to obtain a tryal the sooner against him for it causeth clamor from the party and makes him oftentimes press the Court for a new tryal Hill 22. Car. B. r. He that will in pleading take advantage of a particular Statute must shew particularly that he is comprised within the Statute Pasc 23. Car. B. r. Assize An Assize is to be Arraigned in French and first the Defendants Councel doth pray the Court that the Tenant may be called which the Court grants and thereupon he is called by the Cryer of the Court and if upon his calling he do appear then the Tenants Councel do demand Oyer of the Writ of Assize and the Return of it which is granted and thereupon he prayes leave of the Court that he may Imparle which is granted to a short day after and the Jury is adjourned by the Court to appear at that day Hill 22. Car. B. r. Note that the Jurors that are to trye the Assize are called Recognitors of the Assize At the day granted to the Tenant to Imparle unto the Tenant is called and upon his appearance he pleads to the Assize in Latin and upon this an Issue is joyned between the parties and after the Jury or Recognitors of the Assize are examined upon oath upon a voire dire whether they had the view of the land in question and if they say they have had then are they sworn to try the Issue and the Councel do proceed to give them their evidence Pasc 23. Car. B. r. Arraignment If in an Appeal brought the Writ be abated the Defendant cannot be Arraigned upon the count which is grounded upon this Writ Pasc 23. Car. B. r. One Awbry that had been formerly Indicted for upon the Statute for having two Wives and was Out-lawed upon this Indictment was brought to the Bar and Arraigned to this effect First the secondary on the criminal side spake thus Awbry hold up thy hand which the prisoner did then he proceeded thus Awbry thou hast been heretofore Indicted of Felony and thereupon Out-lawed in due course of Law for having of two Wives and hast been Arraigned thereupon what canst thou say for thy self why thou shouldest not have sentence of death pronounced against thee Prisoner I take this exception to the Indictment that it is not said to be found per sacramentum duodecim proborum legalium hominum and I desire I may have Twisden and Hales assigned for my Councel Court You shall have them Thereupon the Councel prayed that the prisoner might bring a Writ of Error to Reverse the Out-lawry Court Let him have it Attaint An Attaint doth lie against a Jury that do give their Verdict contrary to the evidence that is given unto them Pasc 23. Car. B. r. Audita Querela Where the Bail is detained in prison in Execution after the judgement which was given against the Principal is Reversed by a Writ of Error there the Bail may bring an Audita Querela to be discharged Pasc 23. Car. B. r. If one be taken in Execution and is afterwards set at liberty and then is taken again and detained in prison upon the same Execution he may bring his Audita Querela to be enlarged Mich. 24. Car. B. r. If a judgement given in another Court be removed into the Upper Bench Court by a Writ of Error and the party who had the judgement notwithstanding the removal of it by the Writ of Error do bring an Action of debt upon this Judgement in the Court where he obtained the Judgement as he may do if afterwards pending this Action of Debt the Judgement be Reversed by the Writ of Error the Defendant against whom the Judgement was obtained may bring his Audita Querela to be relieved against the Action of Debt brought upon the Judgement 3. Feb. 1650. B. S. One Tritton that was in Execution brought his Audita Querela and prayed he might be Bailed and it was granted and he was bailed by four persons 7. Feb. 1650. B. S. Authority Doctor Cowels book called the Interpreter is not a book of Authority to be urged for Law for it was condemned to be erroneous and scandalous by Parliament and by the authority thereof was publikly burned as erroneous and scandalous A verbal authority given by divers Plaintiffs in an Action of Trespas and Ejectment to deliver a Lease of Ejectment upon the Land though the Lease be signed and sealed by them off of the Land Let in the Lease is a good authority to execute this Lease So held in a tryal at the Bar between Vanlore and Crook Mich. 1649. 7. No. B S. Apurtenant and Apendant Yards Orchards and Guardens are Appurtenances to a Messuage but Lands cannot be said to be Appurtenant to a Messuage though they be used with the Messuage for the Messuage is a Messuage though the Lands be taken away Hill 23. Car. B. r. One Messuage cannot be Appurtenant to another Messuage for they are both entire things of themselves Pasc 24. Car. B. r. Account An Action of Account or an Action of Debt lies at the election of the Plaintiff against one for receiving mony of a third person for the use of the Plaintiff although he had no authority given him to receive it Hill 23. Car. B. r. The Statute of limitations of Actions doth not
there be not Supersedeas taken forth or have not notice given him of the Writ of Error Trin. 24. Car. B. r. Condition There is difference between a Condition which is annexed to an Estate subsequent and a limitation subsequent which is annexed to an Estate presently vested Hill 22. Car. B. r. Causes The Clerk of the Court is to enter the causes which do depend in Court in his book in the Office and out of it he ought to write several papers viz. one for every Judge in the Court of those causes concerning which any thing is to be spoken in Court the next day and to send the Papers to the Judges severally at five a clock in the Evening before the causes are to be spoken unto Hill 22. Car. B. r. That the Judges may have time to advise of them Confirmation A confirmation of Letters Patents which are voide in respect that they are against the Law is a voide Confirmation although it be done by Act of Parliament but if they were not against the Law but did onely want Law to Authorize them if they be afterwards Confirmed by Act of Parliament the Confirmation is good Hill 22. Car. B. r. Chattel One may by a conveyance raise a Chattel which may be determinable as well as it may be done by a last Will and Testament Trin. 23. Car. B. r. Copyhold and Copyholder A Copyholder doth forfeit his Copyhold by entting down of the Timber growing upon the Lands belonging to the Copyhold Tenement Trin. 23. Car. B. r. Except it be for reparations of the Copy-hold Q. Whether the King shall have a Copyhold which is granted to one in trust for an Alien Hill 23. Car. B. r. It seems he shall It is a forfeiture of the Copyhold for the Copy-holder to refuse to pay his fine if it be a fine certain or to refuse to appear at his Lords Court and to do his service there Trin. 24. Car. B. r. But if he refuse to pay a fine incertain after it is set Q Whether it be a forfeiture or not for the fine may be unreasonable A Surrender of a Copyhold to a use makes not one a Copyholder as to a purchase but as to descent it is otherwise 5. Feb. Hill 1649. B. S. Q. If a Copyholder for life cut down Trees the Lord may carry them away 6. Nov. 1650. B. S. A Copyhold estate cannot be surrendred to another by an Atturney without Deed but one may be admitted to a Copyhold estate by Atturney without a Deed. 2. Ap. 1650 B. S. For there is difference betwixt the passing of an estate and the receiving of an estate passed Contract No usureous Contract can be grounded upon a direct bargain which may either be accepted or refused by the party Hill 21. Car. B. r. If a Contract be usureous and made so that the Statute may be avoided yet it is a corrupt bargain and shall be adjudged to be within the Statute Hill 21. Car. B. r. An absolute Contract may be dissolved by Parol if there be a good consideration for the dissolving of it Pasc 24. Car. B. r. Every Contract doth imply in it self an Assumpsit in Law for to perform the Contract 4. Feb. Hill 1649. B. r. If I do promise to pay a Debt to I. S. which Debt is owing to I. S. by G. D. this is nudum pactum for want of a consideration and if I do not pay it yet an Action doth not lye against me for not paying it according to my promise 3. Feb. 1650. B. S. Covenant If one do Covenant generally to levy a fine of certain Lands he that doth thus Covenant is not thereby bound to go before Commissioners Authorized by a dedimus to take this fine to acknowledge his consent Trin. 24. Car. B. r. If a Lessee for years Covenant expresly to repair a house let unto him and during his term the house is burned down he is tyed by the Law to repair or new build it whether it be burned by negligence or other wayes Mich. 1649. B. S. Consideration One may sell his Freedom and Priviledge for a consideration Trin. 24. Car. B. r. But without a Consideration he cannot part with it so but that he may recal his grant of it at his pleasure If a Deed of Feoffment be made to two or three of Lands or Tenements and no Consideration is expressed in the Deed for the making of the Deed it shall be intended by the Law that it was made to them in trust for the feoffor Mich. 24. Car. B. r. For it shall not be intended he would part with his Land without a Consideration If there be a double Consideration for the grounding of a promise for the breach whereof an Action is brought though one of the Considerations be not good yet if the other be good and the promise broken the Action will well lye upon that breach Trin. 51. B. S. For that one Consideration is enough to support the promise Common and Commoner Hoggs are not Commonable Cattell Pasc 1650. B. S. Yet by consent of the Commoners amongst themselves it is usuall to put Hoggs upon Commons and wasts A Common which is of late times erected must be crected by deed 3. Nov. 1650. B. S. The Lord of the soile of the Common may either surcharge or enclose an overplus of a Common that is so much of it as is more then needfull for the Commoners to common upon in regard of the largeness of the Common and the small number of the Commoners and of their stock But if there be not such an overplus of Common he cannot surcharge or enclose any part of the Common 18. Apr. 1650. B. S. Nor can he erect a Warrein of Coneys upon the Common Confession If the Plaintiff in an Ejectione firme will not fave the Tenant of the Land against whom the Actionis brought harmless from all dammages that may befall him by reason of the Action brought against him the Court will suffer the Tenant to Confess the Action but if he will save him harmless the Court will not suffer him to do it 12. Nov. 1650. B. S. For as its reason that the Tenant should not be prejudiced by the suit which concerns him not so neither is it reason on the other side that he should prejudice the Plaintiff by doing of that which he receives no just benefit by doing it Copy If upon a tryal you will give part of a Copy of an Office in evidence to prove a Deed which Deed is to prove the parties title to the Land in question that gives it in evidence If that part of the Office given in evidence be not so much of the Office as doth any way concern the Lands in question the Court will not admit it to be given in Evidence 28. Apr. 1651. B. S. The Jury upon a tryal at the Barr may not be admitted to have any Copies of Deeds or other writings which were given in evidence unto them away with
possession out of his possession of it for the Law doth not countenance fraud If divers persons come together upon the Land in question next after the Ejectment Lease to try the title of the Land is Sealed and Delivered it is in the election of the Plaintiff that intends to try the title to bring his Action against which of them he pleaseth 1650. B. S. For if the Plaintiff have right they be all Trespassors and it is no wrong to bring the Action against any of them If a Lease of Ejectment be made to one to try a title of a house and the Lessee to whom the Lease is made go into the Entry of the house to make his Entry by vertue of the Lease and one that is in the house shut an inner door of the house and keep the Lessee out of an inner room of the house this is not an Ejectment nor is that person such an Ejector as an Action may be brought against Mich. 1650. B. S. For when he is entred in at the door of the house he is in possession of the house and is not Ejected out of it though he have not possession of the whole house An ejectione firmae doth not lie of a close of land without expressing either the name or the nature of the Land Hill 1649. 30. Jan. B. S. Because it is not known certainly what is meant by a Close without some description of it either by its name or nature It was then said an ejectione firmae doth lye of a Croft of Land sed Q for it was formerly doubted If one Seal a Lease of Ejectment and do thereupon give his Lesse possession of the Lands let and the Lessee is not ejected at that time the Lessee may enter into the Lands again at another time and if the Lessee be then Ejected he may bring an Action of Trespas and Ejectment upon this Ejectment Pasc 1650. B. S. 10. Maii. An ejectione firmae doth lye of a Cottage Pasc 1650. 12. Maii. Evidence The Allegation of the Councel at the Bar is no Evidence to the Jury but the matter which ensues upon this Allegation to prove it is good Evidence upon a tryal at the Bar. Mich. 22. Car. B. r. Witnesses who are to be made use of to give their Testimony at a tryal at the Bar if by reason of sickness or otherwayes they be not able to travel and come to the tryal may by order of the Court be examined upon Oath touching their knowledge in the Country where they live and their Depositions so taken are to be admitted to be read as Evidence to the Jury at the tryal Mich 22. Car. B. r. Depositions taken in Chancery may be order of the Court be read as Evidence to a Jury upon a tryal at the Bar by the Plaintiff or the Defendant or both if the Depositions were taken in the cause which is to be tryed at the Bar and between the same parties that are Plaintiff and Defendant in the tryal Mich. 22. Car. B. r. And so it is of Bills Answers Replications c. in Chancery But if the parties that Deposed in Chancery be living at the time of the tryal they ought to be examined ore tenus in Court and their Depositions are not in such case to be made use of Pasc 1650. B. S. The admittance of one to be an Administrator in an inferior Diocess is a Bar against the person that doth so admit him to give Evidence at a tryal that the Intestate had not bona not a bilia in divers Diocesses at the time of his death Mich. 22. Car B. r. For such Evidence would be contrary to what he hath formerly admitted The Court will not permit the Jury upon a tryal at the Bar to carry any wrightings with them out of the Court as Evidence for them to consider of but such as are under Seal and have been proved in Court Mich. 22. Car. B. r. For others are of no credit An Evidence given to a Jury may be answered by the Councel either by confessing and avoiding it or else by encountring the Evidence given with giving stronger Evidence and of greater credit on the other side Mich. 22. Car. B. r. A thing which is concluded in the Ecclesiastical Court which doth concern Lands is not to be given in Evidence to a Jury at a tryal concerning those Lands Mich. 22. Car. B. r. For the Courts of Common Law are not to be guided by their proceedings A person that may be admitted as a Witness at a tryal may give words in Evidence to the Jury which were spoken to him by another person who by the Rules of the Court might not be admitted as a Witness at the tryal Mich. 22. Car. B. r. For it is but matter of Evidence and is left to the Jury how far they will give credit to them It is not of necessity that a Deed or a Record given in Evidence to a Jury be shewed in Court but if it be proved that there was such a Deed or such a Record as are given in Evidence it is sufficient Trin. 23. Car. B. r. For a Deed or a Record may be imbezled or lâ—st and so not to be produced The Judges of the Court cannot try a matter of Fact in question upon a Demurrer to an evidence and therefore the Plaintiff and the Defendant must agree upon it and confess it Trin. 23. Car. B. r. For else the Court will not proceed to deliver their opinions touching the matter in Law Demurred upon Matter in Law ought not to be given in Evidence at a tryal but onely matter of Fact is to be given in Evidence and the matter in Law if there be any that is disputable is to be reserved to be spoken to in Arrest of Judgement Trin. 23. Car. B. r. For the Jury are onely to try matters of Fact If a Fem Covert acknowledge a thing at a tryal which is for the advantage of her husband but is for her own disadvantage yet this is no good Evidence to a Jury Mich. 23. Car. B. r. For her husbands present advantage is Hers also and is more looked upon then her future disadvantage The Defendants Councel ought to conclude by way of answer to the Evidence that is given unto the Jury by the Plaintiffs Councel Pasc 24. Car. B. r. For if the Plaintiffs Councel doth begin the Evidence it is reason the Defendant should speak last because he is upon the defensive part and is to give an answer to all that is said against him in matter of Evidence but the Plaintiffs Councel is to sum up his Evidence last to the Jury An ancient writing that is proved to have been found amongst Deeds and Evidences of Land may be given in Evidence to a Jury although the executing of it cannot be proved Mich. 24. Car. B. r. For it is very hard to prove things that are very ancient and the finding them in such a place is a presumption that
be warning given to the Defendant of the tryal 1655. B. S. Executor If one be indebted to I. S. in a certain summe of mony and I. S. makes his Will and deviseth this debt due unto him unto A. B. and makes I. L. his Executor and dyes this debt devised unto A. B. must be paid unto I. L. the Executor and not to A. B. the devisee Mich. 22. Car. B. R. For the Executor and not the Devisee can give a sufficient discharge for this debt If a Scire facias be brought against an Executor to shew cause why he should not pay a Debt unto the Plaintiff recovered against the Testator the Executor cannot plead fully Administred but he must plead that no goods of the Testators are come to his hands whereby he might discharge the Debt Mich. 22. Car. B. r. For he may have fully Administred and yet be liable in Law to pay the debt demanded upon the Scire Facias An Executor which hath Administred goods of the Testator as Executor or that is Executor of his own wrong by disposing of the goods of the party deceased without authority given unto him cannot waive a term of years for Land c. of which the deceased dyed possessed of Mich. 23. Car. B. R. For he hâ—th charged himself to be answerable to all persons concerned as far as the deceased parties personal estate will amount unto But if he have not Assets he may waive the Term. Trin. 24. Car. B. r. An Executor of his own wrong is not by Law chargeable for more then the value of the goods of the deceased doth amount unto and which did come unto his hands and with which he hath intermedled Mich. 23. Car. B. r. The word Executor is a word collective and doth comprehend in it the Executor of an Executor Hill 23. Car. B. r. For he is accountable for the first Testators goods An Executor may recover a duty which was due to the Testator although the Executor was not named in the creation of that duty Trin. 24. Car. B. r. For he represents the very person of the Testator An Execut or may be charged upon a Collateral promise made unto the party by the Testator if the promise was broken in the life time of the Testator else not Mich. 149. B. S. And 16. April 1650. B. S. Escape An Administrator may bring an Action of Escape for an Escape suffered of a Prisoner of the Intestate in his life time Trin. 23 Car. B. r. An Escape in one place is an Escape in all places so that for an Escape the party whose prisoner is escaped may bring an Action for this Escape in what County he pleaseth for the Action is not Local or fixt to any certain place Trin. 24. Car. B. r. But transitory Endictment An Endictment that is framed upon a Statute ought to pursue the words of the Statute Trin. 23. Car. B. r. The Justices of Assize will stay the proceedings against a person for a thing done by him during the time of war and in relation to the war Trin. 23. Car. B. r. For Indictments are to be preferred against persons that act any thing in the disturbance of a peaceable and setled Government If any one be perjured in an Affidavit made in any Court of Record touching any Cause depending in that Court an Indictment may be preferred against him for this perjury upon the Statute Trin. 23. Car. B. r. An Indictment of forcible Entry doth not lye upon the Statute of 8. H. 6. against one for entring forcibly into a Copy-hold but an Endictment doth lye in such a Case by the Statute of 21. Jacob. Hill 23. Car. B. r. Although exceptions be taken against an Endictment to the intent the Court should quash it yet the Court will grant time to maintain the Endictment unto the Kings Councel if they desire it Hill 23. Car. B. r. The Court doth not usually quash Endictments for perjury although the Endictments be faulty but will put the party to plead to the Endictment Hill 23. Car. B. r. For perjury is counted a great offence and therefore the Court doth not favour such offenders An Endictment ought to be more certain then common pleadings in Law need to be Hill 23. Car. B. r. An Endictment ought to express the year of our Lord in which it was taken Hill 1649. 30. Jan. B. r. If an Endictment be drawn so generall and so uncertain that the party Endicted cannot tell how to make a certain answer unto it such an Endictment is not good but may be quashed Pasc 24. Car. B. r. If a word be left out in an Endictment which is but onely in matter of form yet the Endictment is good but if be in matter of substance it is not good Trin. 24. Car. B. r. If one be Endicted for doing of any thing for which he is not by the Law to be Endicted for as for the enclosing of a Common or some other Trespas for which an Action at the Common Law is to be brought such an Endictment is not good but may be quashed Pasc 24. Car. B. r. If one do interrupt a long continued possession of Lands by an unlawful means and the person that is so interrupted of his possession do regaine his possession by unlawful means also yet an Endictment of forcible entry doth not lye against him for doing thereof Mich. 24. Car B. r. For the Law favours long possessions and doth not countenance the disturbers of them In most Cases the Endictment for a Fact done ought to be laid in that County where the Fact was done But this holds not in all Cases Mich. 24. Car. B. r. And Mich. 25. Oct. 1650. B. r. If one be Endicted at a Sessions in London or in any other County and the party Endicted do remove the Endictment by a Certiorari into this Court and do not thereupon quash the Endictment the party that did remove it ought by the Rules of the Court to try the Endictment at his own costs the next Term after that the Indictment is removed 13. Nov. 1650. B. S. Exposition The best Exposition of the Starute Law is to be had by the consulting with the makers of them and how they did in their times interpret them Hill 23. Car. B. r. For they knew best for what end they made the Statutes Contemporarea expositio legis est optima The word videlicet in a Deed is put to expound or make plain the premises of the Deed in which it is put and therefore that which it brings in ought not to be contrary to it for if it be the videlicet is void Pasc 23. Car. B r. If all the words of a Deed can stand together without any absurdity the Law will make such an exposition of them that the whole Deed may be good in Law Pasc 24. Car. B. r. Election An Action of Trespas upon the Case or an Action of Trespas vi armis may be brought against one
that doth rescue a Prisoner at the Election of the party who is damnified by this rescous Pasc 24. Car. B. r. Yet the judgments are different in these two Actions Where one may bring an Action of Wast for Trees cut down upon his Land it is at his Election to bring an Action of Wast or else an Action of Trover and Conversion for the Trees Mich. 24. Car. B. r. But both he cannot bring An Action upon the Case or an Assize doth lye against him that doth surcharge a Common at the Election of him that is injured thereby Mich. 1649. B. S. If a Prisoner escape that lyes in prison upon an execution an Action of Debt lyes against the Goaler that suffered this escape for the party at whose suit he was in execution but if he were not a prisoner in execution and do make an escape it is in the Election of the party at whose suit he was a prisoner either to bring an Action upon the Case or an Action of Debt against the Goaler for this escape Trin. 1650. 15. Junii B. r. If the Plaintiff amend his Declaration it is at his Election either to pay the Defendant Costs for this amendment or to give the Defendant an emparlance to the next Terme after the amendment and the Defendant cannot hinder this Election 7. Feb. 1650. For the Defendant is at no prejudice by it Estople A recitall in an Obligation is an Estople against which he that made the Obligation shall not be permitted to plead any thing to the contrary if an Action be brought against him upon this Obligation Pasc 24. Car. B. r. For that were to contradict his own act and Deed. If one enter into an Obligation by the title of an Esquire whereas in truth he is a Knight if an Action be brought against him upon this Obligation and he is named an Esquire he shall be Estopped to say in his Plea that he was not an Esquire but a Knight at the time he entred into the Obligation in abatement of the Writ Hill 1649. B. S. For constat de persona that he was by his own admission the same person that entred into the Obligation and did then admit the title of Esquire to be his true addition Where one hath liberty to confess and avoid the matter which the Plaintiff doth set forth in his Declaration against him there he cannot be Estopped to plead such matter for his defence 29. Jan. 1649. Hill B. S. Extinguishment If one have used to hold a Court by Custome as by Law he may if he do afterwards purchase Letters Pattents to enable him to hold this Court he hath thereby extinguished the Custome and must now hold the Court by vertue of his Letters Pattents Mich. 24. Car. B. r. For the party hath thereby waived the Custome and hath made Election to hold his Court by another Authority Error If a Writ of Error be brought to reverse a judgment and afterwards this Writ of Error is discontinued for want of prosecution of the party yet execution cannot be had upon the judgment untill this discontinuance of the Writ of Error be certified from the Court where the Writ of Error is discontinued unto the Court where the judgment was given 21. Car. B. r. If a Writ of Error be brought meerly to stop execution upon the judgment given and without any probable matter of Error to be alledged against the judgment and this doth appear unto the Court where the Writ of Error is brought the Court will not hinder execution to be awarded upon the judgment notwithstanding the bringing of the Writ of Error to reverse it 21. Car. B. r. For the Law doth require speedy justice to be done The assignment of the generall Error upon a Writ of Error brought is to say that the Declaration was insufficient and that judgment was given for the Plaintiff whereas it ought to have been given for the Defendant and such like generall frivolous matters without alledging any particular colourable matter of Error in the judgment 21. Car. B. r. A Writ of Error doth lye for one that is committed by a Justice of the Peace for a forcible entry committed by him Trin. 22. Car. B. r. For the commitment is grounded upon a judgment given by the Justice against the party committed All parties that are grieved by an erroneous judgment may joyn in a Writ of Error to reverse the judgment but persons that are not damnified by it cannot joyn with others that are damnified by it to reverse it Mich. 22 Car. B. r. For the Law will not favour any to sue who have no cause The Bail cannot joyn with the Principall in a Writ of Error to reverse a judgment given against the Principall 22. Car. B. r. For the principall must reverse the judgment alone if it be erroneous because it was only given against him and not against the Bail Errors to a judgment ought to be assigned upon the Record 22. Car. B. r. No person shall be compelled to bring a Record into the Court to make an Error in another Record Mich. 32. Car. B r. for the Law doth favour matters of Record and will affirm them rather then question them without apparent cause shewn If a judgment given in an inferior Court be entred in this manner ideo confideratum est and the words per curiam are omitted as they ought not to be the judgment is erroneous but if a judgment given in a superior Court viz. in any of the Courts at Westminster be entred and the words per curiam are omitted yet the judgment is not erroneous Mich. 22. Car. B. r. For inferior Courts are tied to observe their antient forms of proceedings and not to vary from them He that hath obtained a judgment if he finde that it is Erroneous may move the Court to have it reversed for his own dispatch which the Court will do when they are satisfied what the Error is Mich. 22. Car. B. r. For till such a judgment is reversed 〈◊〉 Plaintiff cannot bring a new Action for the same Cause for which that judgment was given for if he should the Defendant may plead the judgment in barr of his second Action If the Defendant after judgment given against him do bring a Writ of Error to reverse the judgment but doth not certifie the Record into this Court in reasonable time the Court will grant that the Defendant may have execution upon the judgment but he is not bound to certifie the Record the same Terme in which he brings his Writ of Error but if he do it the next Terme after it is sufficient Mich. 22. Car. B. r. If a judgment be given in any of the Cinque Ports if the Defendant will bring a Writ of Error to reverse it he must bring his Writ of Error before the Warden and Constable of Dover and not in this Court Mich. 22. Car. B. r. This is one of the Priviledges that belong unto those that
inhabit within any of the Cinque Ports or members thereof If an erroneous judgment be given in any of the Sheriffs Courts of the City of London the Writ of Error to reverse this judgment must be brought in the Court of Hustings before the Lord Major Hill 22. Car. B. r. For that is the Superior Court A Writ of Error that is brought in the Parliament is made retornable immediately Pasc 23. Car. B. r. A Writ of Error to reverse a judgment ought not to be brought before the judgment is signed Pasc 23. Car. For before it is signed it is not judgment and the Writ of Error runs thus Si judicium sit redditum Yet it is usual to do it in inferior Courts Q Whether the Heir may bring a Writ of Error to reverse an erroneous Judgment given in a personal Action which Judgement doth charge the Lands of the Heir Trin. 23. Car. B. r. He that brings a Writ of Error to reverse a Judgement ought by the Statute to put in good Suerties to pay the debt recovered and the charges of the Judgement and those that shall be caused by bringing the Writ of Error in Case the Judgement shall be affirmed and not reversed upon the Writ of Error Trin. 23. Car. B. r. For it is reason the party should have recompence for his causeless vexation and delay When a Writ of Error is brought to reverse a Judgement the party that brings the Writ must cause the Roll where the Judgement is entred to be marked whereby the other party may take notice upon Record that the Writ of Error is brought and this marking of the Roll is a Supersedeas in it self to hinder Execution to be taken out upon the Judgement but if the Roll be not marked Execution may be taken out upon the Judgement notwithstanding the Writ of Error but if Execution be taken out after it is marked the party grieved may have a Supersedeas quia erronice emauavis to make void the Execution Mich. 23. Car. B. r. It is not usually for the Court of Common Pleas upon a certiorari directed to them upon a Writ of Error brought to reverse a Judgement given in that Court to Certifie the Record into this Court to Certifie the Original Writ upon which the Action was commenced there for that Writ is to remain with the Custos brevium of that Court Mich. 23. Car. B. r. A Writ of Error is not to be brought in Parliament to reverse a Judgment given in the Common Pleas but the Writ of Error ought to be brought in the Court of the Kings Bench. Hill 23. Car. B. r. The Chief Justice onely and not any other of the Judges of the Court ought to allow a Writ of Error that is brought Hill 23. Car. B. r. If a Judgement given in this Court be erroneous in matter of Fact onely and not in matter in Law a Writ of Error may be brought in this Court where the Judgment was given to reverse it and it it is not necessary to bring a Writ of Error in Parliament but if the Judgement be erroneous in matter in Law then a Writ of Error cannot be brought in this Court to reverse it Pasc 24. Car. B. r. 1650. B. S. For error in fact is not the error of the Judges and therefore the reversing of a Judgement given by them which is onely erroneous in matter of fact is not the reversing their own Judgement but it is otherwise if the Judgement were erroneous in matter in Law A Writ of Diminution in a Writ of Error ought not to be granted to be directed to an inferior Court Trin. 24. Car. B. r. If he that doth bring a Writ of Error do discontinue his Writ before the Defendant in the Writ of Error do plead unto it he may have a new Writ of Error but if he discontinue his Writ after the Defendant hath pleaded to it he cannot have a new Writ Mich. 1649. B. S. If by any possibility there may be supposed to be error in the Record any person that may be damnified by this error may bring a Writ of Error to reverse it Hill 1649. B. S. For although he be not named a party to the Record yet the Law hath made him a party to it by subjecting him to dammage by it and it is therefore reason he should be permitted to use all lawful means to defend himself from it A Judgement may be an erroneous Judgement although it be not given for the Plaintiff but the Defendant is thereby acquitted for it may be erroneons in the entry of it for it may it is entred with a Capiatur against the Plaintiff whereas it ought to be in Miserecordia pro falso Clamore Hill 1649. B. S. A Writ of Error is not like another Writ for a Writ of Error may be abated as to one person and yet may stand good as to another person and so cannot another Writ But if the Writ of Error be brought in a Case where it will not lye it must be abated in the whole Hill 1649. B. S. 27. Jan. For there is no ground for the Writ All the parties privies to the Record may joyn in a Writ of Error to reverse it if it be erroneous Hill 1649. B. S. A Writ of Error may be brought to Reverse a Judgement before a Writ of Enquiry of dammages which Issues out upon the Judgement be executed Hill 1649. 2. Feb. B. S. Q. The party who is to have benefit by a Judgement may bring a Writ of Error to reverse it as well as the Defendant Hill 1649. B. S. 4. Feb. If a Writ of habere facias possessionem to deliver possession to the Plaintiff of Lands recovered by him in an ejectione firmae doth contain in it more Acres of Land then were contained in his Declaration the Writ is erroneous but if the Sheriff do deliver possession of more Acres of Land then are contained in the Writ this doth not make the Writ erroneous but there an Action upon the Case doth lye against the Sheriff for doing it or an Assize may be brought against him that hath the possession delivered to him for the Surplusage of the Land delivered unto him 18. Nov. 1650. B. S. A Writ of Error ought to mention before whom the Judgement was given for the reversing whereof it is brought 31. Jan. 1650. B. S. A Writ of Error which is brought to reverse an Out-lawry was wont to be signed by the King Q. Who shall sign it now whether the Parliament or not 3. Feb. 2650. B. S. But now I suppose it shall be signed by the Protector If Judgement be given upon a matter which doth arise out of the jurisdiction of the Court where the Judement is given this is an erroneous Judgement 3. Feb. 1650. B. S. For such a Judgement is given coram non judice and so is voide in toto If a Judgement be entred quod recuperare debeat a Writ of Error cannot be
may either have an Alias Capias against the party that Escaped to take him again in Execution or an Action upon the Case against the Sheriff that suffered him to Escape Mich. 23. Car. B. r. An Escape in one place is not an Escape all England over 6. Nov. 1650. B. S. Extent Lands in the hands of a Trustee may be extended for a Debt due to the King Hill 23. Car. B. r. Q Whether they are extendable for any other Debt Escheator The King may by his special Commission make one or more Deputies Escheators to find an Office and this is used to be done after the death of a Noble man or other person of great quality Pasc 24. Car. B. r. Fine A Fine for a licence of Alienation to alien Lands held in Capite is to be paid in Chancery for there is the pardon for Alienation of such Lands without licence to be sued forth 21. Car. B. r. If an Officer of this Court do not give his due attendance upon the Court as his place requires the Court may set a Fine upon him for his neglect Trin. 22. Car. B. r. This Court may set a Fine upon the Clerk of the peace who returns an Endictment into this Court upon a Certiorari directed to remove the Endictment into this Court if the Endictment be not good in matter of form Trin. 22. Car. B. r. For it shall be intended that it was his negligence that the Endictment was not well drawn for it shall not be presumed that he can be ignorant in the form of drawing Endictments The Court cannot set a Fine upon a Sheriff that is out of his Office Mich. 22. Car. B. r. For then he ceases to be an Officer of the Court. If the Conusee of a Fine levyed of Lands do pay mony unto the Conusor of the Fine at the time of the Fine levyed and there is no use declared to lead the use of the Fine levied of these lands the Law will construe the Fine to be levyed of these Lands to the use of the Conusee to whom the Fine is levyed but if there be no money paid by the Conusee nor any use declared the Fine shall enure to use of the Conusor that levyed the Fine Pasc 23. Car. B. r. For nothing appears whereby it can be supposed that the parties had any intention the estate in the Lands should be altred by the Fine but that the Fine was levyed in Corroboration onely of the title of the Connsor If Justices of peace do proceed upon an Indictment after a Certiorari out of this Court is deliveed unto them to remove the Endictment into this Court This Court may set a Fine upon them for their contempt to this Court Hill 23. Car. B. r. This was done heretofore in the Case of Sir John Sedly and Sir Thomas Stile two Justices of the peace of the County of Kent If a Habeas Corpus do issue out of this Court and the party to whom it is directed do make an insufficient return of it this Court may set a Fine upon the party for making this insufficient return Pasc 24. Car. B. r. A Fine and recovery cannot destroy an estate executory which depends upon contingencies but it will destroy a Remainder Q. Pasc 24. Car. B. r. If part of a Fine that is set upon one that is convicted upon an Endictment or information for an offence done by him contrary to a Statute do belong to a subject as it may if the Statute do so direct all the fine set upon the party ought not to be estreated into the Exchequer Pasc 24. Car. B. r. But the Kings part onely ought to be estreated A fine sun Cognisance de droyt come ceo que il ad de lour done c. levyed of Land doth admit the possession of the Lands of which the Fine is levyed to pass by the Fine but a Fine come droyt levyed of Lands doth only pass the right of the Conusor in the Lands of which the Fine is levyed Mich. 1649. B. S. A Fine sur Cognisance de droyt come ceo c. is a Fessment upon Record of the Lands comprised in the Fine and doth imply a Livery and Seisin to be made of those Lands Hill 1649. 29. Jan. B. S. A Fine of twenty nobles was set upon one for bringing an Attaint against a Jury after the Jury had been formerly acquitted Hill 1649 4. Feb. B. S. A Fine set upon one which is voideable that is may be avoided is not void absolutely but continues to be a good Fine untill it be avoided by the Plea of the party that is Fined Pasc 1650 4. Feb. B. S. One may declare the use of a Fine by Paroll and if there be such a Declaration by Paroll made to lead the use of a Fine and it be defective to declare the intent of the parties it may be afterwards supplyed and made good by subsequent Parolls 8. Nov. 1650. B. S. Filing of Process or other thing A Capias that is duly sued forth may be filed afterwards and it is not necessary to File it at the time when it is taken forth 21. Car. B. r. For the Fileing of it doth contribute nothing to the essence of the Writ A Declaration may be Filed in the Office after a Writ of Error is brought to reverse the Judgement given in the cause wherein that Decleration was given and so is it of a Warrant of Atturney Pasc 24. Car. B. r. For the Defendant is at no prejudice by the filing of them and he did take notice of them as appears by his pleading and going to issue with the Plaintiff Affidavits which are not read in Court may not be filed there untill the secondary hath made his report in the cause touching which such Affidavits were made but if they be read in Court they may be presently filed Trin. 24. Car. B. r. For the Court takes no notice of them untill they be read in Court An original Writ may be Filed after Judgement given in the cause for which it was sued forth if it were sued forth before the Judgement given Trin. 1650. 26. Junii B S. The Court will not compell the Plaintiff to sile a venire facias after a Verdict if the venire will make an Error for if there be no venire that defect is helped by the Statute of Jeofailes but if there be a venire and that venire is erroneous this is not helped by the Statute Trin. 1651. B. S. False Latine and Form The Court doth use to amend False Latin and Form in Bills presented unto them by the grand Enquests every Term by their licence and consent but the Court cannot amend matter of substance in them Mich. 22. Car. B. r. For that were to make new Bills Forma Pauperis If one that is admitted to sue in Forma panperis will not proceed according to the Rules of the Court but useth delayes to vex his adversary the Court will Dispauper him
the night for that is a time for rest 1650. B. S. If a robbery be begun in the day light but is not ended till dark night yet the Hundred where it was done is chargeable for it by the Statute of Winchester 1650. B. S. Fee simple A Feffment made of Lands to one and his Heirs Males is a Fee simple Mich. 23. Car. B. S. For it is not an estate comprised within the Statute of West 2. De donis conditionalibus False Imprisonment An Action of False Imprisonment doth lye against a Baily by the party that is Arrested by him after the Writ is returned by Warrant whereof he was Arrested Hill 23. Car. B. r. For this is all one as if he were Arrested without a Writ for by the return of the Writ the Sheriffs and Bailiffs power are at an end as to that Writ If a procedendo be unduely obtained and the party against whom it is had be thereupon taken and imprisoned an Action of False Imprisonment doth lye by the party Imprisoned against him at whose Suite he is Imprisoned Mich. 24. Car. B. r. Feoffment A Feoffment made of Lands unto a Fem Covert is a good Feoffment in Law untill the husband do disagree to it Hill 23. Car B. r. Q. If the husband do not know of the Feoffment made and after the Feoffment doth dye what the Feoffment shall operate Foundation None hath power to Found a free Chappel but the King Hill 23. Car. B. r. For it is as much as to create a new Tenure The Foundation of a thing may alter the Law as touching that thing Hill 23. Car. B. r. Fiction of Law The Law ought not to be satisfied with Fictions where it may be really satisfied Pasc 24. Car. B. r. Yet in some Cases Fictions of Law are necessary and to be allowed Gavel-kinde IF one take to Wife a Woman Seised of Gavel-kind Lands and the Wife dye without having had any issue of her body by her husband yet the husband shall be Tenant by the courtesie of half of the Lands during the time he continues unmaryed But if he marry he shall forfeit his Tenancy by the courtesie But if he had issue by the Wife if the Wife dye he shall be Tenant by the courtesie of the whole Land and although he do marry he shall not forfeit his Tenancy by the curtesie Mich. 22. Car. B. r. This is by the custome of Kent Guardian A Gardian of an Infant may acknowledge satisfaction upon Record for a Debt which he hath recovered at Law for the Infant Trin. 23. Car. B. r. But it must be a Guardian that is Assigned by the Court to sue for the Insant The Court will Assigne a Gardian to an Infant to sue for him if the Infant do come into Court and desire it of the Court and name the party he desires to have for his Guardian and produce him in Court Trin. 24. Car. B. r. Good Behaviour If one do affront any Court of Justice this is a good cause to bind the party to his Good Behaviour Pasc 24. Car. B. r. For the affronting of justice is a publike misdemeanor and not a private although it be done but to the person of one man as to the Judge of a Court a Justice of peace c. He that doth upon Articles sworne in Court desire the party against whom the Articles are sworne may be bound thereupon to the Good behaviour must express some speciall matter in those Articles for which he ought to be bound to the good behaviour For if the Articles be only generall the good behaviour is not to be granted upon them Mich. 22 Car. B. r. For a generall accusation is no accusation for the incertainty of it Perjury is not an offence for which the party perjured may be bound to the Good behaviour Mich. 22. Car. B. r. But the party may be endicted for it and fined if he be thereupon convicted One was bound to his Good behaviour for affrighting people in the night in their houses by shooting off of Muskets and for the assaulting of one going in the high way Mich. 22 Car. B. r. A woman that is a common scold may be bound unto the Good behaviour Mich. 22. Car. B. r. For she is a common disturber of the publique peace The Good behaviour was granted against one upon an Article sworne against him that he had maliciously pulled down a piece of anothers house Hill 22. Car. B. r. A Justice of Peace ought not to binde any person to the Good behaviour upon a generall accusation made against the party Pasc 23. Car. B. r. One was bound to his Good behaviour for stopping of a Constable from making pursuit after a felon Trin. 23. Car. B. r. For this is a publike offence against the Common-wealth The Good behaviour is not to be granted against one for speaking of words only against one person but it may be granted against one for speaking of words against divers persons at severall times Hill 23. Car. B. r. For that is a generall misbehaviour The Good behaviour was granted against one upon an Article sworne and read against him that he said that he would burn down another mans house Hill 1649. B. S. Heire THe word Heir is nomen collectivum and extends unto all Heirs Trin. 23. Car. B. r. The Heir is favoured at the Common Law for at the Common Law the Ancestor could not convey away his Lands from his Heir at Law upon his death bed without the consent of the Heir Hill 23. Car. B. r. The Law is the preserver of Inheritances Heriott A Heriott is the fruit of a Rent-service Hill 21. Car. B. R. This is to be meant of Heriott service and not of Heriott Custome Habeas Corpus If a Prisoner appear in Court upon a retorne of a Habeas Corpus to remove him hither and there doth appear by the return that there was good cause to commit the prisoner to prison and to detain him there the Court will remand or send him back to the place where he was first committed but if upon the retorne it doth appear that there was no lawfull cause to commit him then the Court will discharge the prisoner but if it be doubtfull to the Court whether he was lawfully committed or not then the Court will bail the prisoner Hill 21. Car. B. r. Trin. 23. Car. B. r. A Habeas Corpus ad respondendum is when any one is imprisoned at the suit of another upon a legall process in the Fleet or any other prison except the Kings Bench prison and a third person would sue that prisoner in this Court and cannot because he is not in custody of the Mareschall of this Court there he may have a Habeas Corpus to remove the prisoner out of the prison where he is into this Court to answer unto his Action here 21. Car. B. r. A Habeas Corpus cum Causa doth remove the body of the party for whom
Car. B. r. A Tenant that is within the distress of a Lord of a Mannor or Leete ought not to serve upon a Jury in a Cause that concerns the Lord Mich. 23. Car. B. r. For it shall be presumed he may not be indifferent in regard of fearing to displease his Lord. After a Juror is sworne he may not go from the Barr untill the evidence be given and the directions of the Court for any cause whatsoever without leave of the Court and although he have leave he must have a keeper with him Pasc 24. Car. B. r. If a Juror be challenged and the Challenge entred by the Secondary that Juror cannot be after that sworne as a Jury man to try that Cause wherein he was challenged viz. at that tryall 24. Car. Pasc B. r. Q. Whether before the Challenge entred he may be sworn Where a tryall is to be for a thing that concerns the Under-Sheriff there the High-Sheriff shall retorne the Jury Trin. 24. Car. B. r. For here shall be no favour supposed but if the tryall concerne the High-Sheriff the Vnder-Sheriâ—… shall not retorne the Jury for there may be presumed to be favour for the servant depends upon the master and not the master upon the servant The Jury ought not to have any writting with them when they go from the Barr which hath not been proved although such a writting hath been given in evidence unto them Mich. 24 Car. B. r. The Jury may finde matter of Record if they do know it of their own knowledge Pasc 1650. B. S. 10. Maii. For a mans own knowledge is more certain than any evidence can be given There are three grand-Juries retorned every Term to serve in this Court every Jury consisting of 16 17 18 19 or 20 Jurors or more Though a man be very aged yet if he be of an able body and not infirm he is not to be excused from serving upon the grand Jury One _____ Butler a man of 72. years of age was denied by Rolle Chief Justice to be excused to serve because he was of an able body Hill 1651. B. S. One that hath no Freehold in the County or is a Constable or a Surveyor of the high-way or is a sequestred person are not thereby to be excused from serving upon the grand Jury Pasc 1651. B. S. By Rolle Chief Justice But Q. of a sequestred person The Jurors that appear at a tryall shall not have their charges allowed them if the Cause be not tryed for want of Jurors Pasc 1652. B. S. For their apparance is to no benefit of any body When a Juror is withdrawn he is strook out of the panell by the Secondary Upon a generall issue the Jury may finde a Record but not upon a nul tyell Record Pleaded 1651. If but eleven of the Jury be sworne if the twelfth man do stand by and hear all the evidence that was given to his fellowes he may be sworne afterwards and pass upon the tryall By Rolle Chief Justice 1654. Pasc B. S. For the Jurors are sworne to try the issue upon the evidence they shall hear so that it seems the time of being sworne is not materiall whether before or after the evidence Q. The Jury may take Depositions taken in Chancery and exemplified there given in evidence to them from the Barr with them but if they be not exemplified they may only look upon them in Court but not take them with them out of the Court 1654. B. S. For to see them is no more then to hear them read Issue Every Issue is to be joyned in such a Court that hath power to try it otherwise the Issue is not well joyned 21. Car. B. r. For if the Cause cannot be tryed the issue is fruitless If an Action of Trespass be brought against two for entring into the Plaintiffs Land and one of them pleads that the Land is his freehold and the other that he entred into the Land by the commandment of him that pleads it is his freehold here is to be but one Issue joyned 21. Car. B. r. For but one of the Defendants claimes an interest in the Land and the other justifies but as a servant unto him and if the tryal pass for him that claimes the interest there is no colour of Action to be maintained against the other If there be a Demurrer to an evidence and the party whose evidence is demurred unto do plead to the demurrer and joyn Issue with the Defendant upon it this Issue must not be joyned upon a matter in fact in the evidence but that must be agreed or else the Issue is not well joyned for the Court are not to try matter of fact for that would be for them to give a verdict Mich 22. Car. B. r. Whereas the Court are only to declare the Law whether admitting that all the matter given in evidence by the Plaintiff be true it doth prove the Issue in question or not By the Rules of the Court if the Plaintiff will not try his Issue after it is joyned in such time as he ought by the course of the Court to do the Defendant may try it by Proviso if he will Hill 22. Car. B. r. That he may free himself if he can of the danger and trouble he may be subject to by the depending of the Action brought against him and to recover his dammages for his unjust vexation A judgment may be entred as to one part of an Issue and a nolle prosequi to another part of the same Issue Pasc 23. Car. B. r. This is only where the Issue may be divided Where there is a demurrer to part of an Issue and the other part of it remains to be tryed by a Jury the Tryal of it may be either before or after the arguing of the Demurrer at the Election of the Plaintiff Pasc 23. Car. B. r. For the Demurrer and the Issue have no depondancy one upon the other Every issue ought to be joyned upon the most material thing in the Cause depending that all the matter in question between the parties may be tried Hill 23. Car. B. r. For else the triall will prove to little purpose If an Issue be once joyned between the parties this Issue cannot afterwards be waved except both parties do consent unto it although the Issue be but in paper and not engrossed in parchment Trin. 24. Car. B. r. Therefore it is good to be well advised before the Issue be joyned The place ought not to be made part of the Issue in a transitory action Trin. 24. Car. B. r. For the place is not material as it is in a real and mixt action An immaterial Issue joyned which will not bring the matter in question to be tried is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader 26. Jan. Hill 1649. Pasc 1650. 4. Maij. B. S. For this is matter of substance For if there was no Issue there could be no Verdict
afternoon upon the last day of the Terme and so they said the Common Pleas had done Trin. 1651. B. S. This was that the Attorneys might not defer their Clyents businesses to the last of the Terme as too usually some doe Jeofailes Q If an Issue be joyned upon a collateral point if there be no place alledged whence the Venue may come this is ayded by the Statute of Jeofailes but if the Issue be not joyned upon a collateral point and there is no place alledged from whence the Venue may come it is not helped by the Statute Mich. 22. Car. B. r. Interrogatory One who is by the rule of the Court to be examined upon Interrogatories ought to attend the Master of the Office who is to examin him within four dayes after the Interrogatories are put in for him to be examined upon Mich. 22. Car. B. r. Intendment and Intentions The Law doth not punish any one for the Intention to do ill if the Intention be not put in execution except it be in the case of Treason for there Intentions if they be clearly proved by circumstances shall be punished equally as if they had been put in execution Trin. 22. Car. B. r. But this is only in high treason and is done in terrorem to deter men from that odious offence and of so high a nature being not acted against the Person of one sole person but even against the whole Kingdom which would suffer by it There shall not be Intended to be more then one Parish in a City although there be many except the contrary be shewed Trin 24. Car. B. r. For it is not of the essence or constitution of a City to consist of more Parishes then one but there may be a City that hath but one Parish in it as the City of Rochester in Kent If one be bound in an Obligation to J. S. in a certain summe of money and in the solvendum of the Bond it is not expressed unto whom the money shall be paid the Law will intend it is to be paid to the Obligee Pasc 24. Car. B. r. Because no other person is particularly named unto whom the payment should be made for it shall be intended the money was to be paid to some body and there being no person particularized to whom it should be paid it is but reasonable it should be paid to the Obligee A Court which is pleaded generally to be held secundum consuetudinem shall be intended to be held according to the Common Law but if it be pleaded to be held according to a Custome whereof the memory of man is not to the contrary it shall be adjudged to be a Court held by Custome Trin. 24. Car. B. r. For a Custome must be so particularly pleaded If the Plaintiff do plead that the Defendant did become bound unto him per Obligationem suam it shall be intended that this Obligation was sealed and delivered unto the Plaintiff Mich. 24. Car B. r. For else he did not become bound unto him by his Obligation for an Obligation that is not sealed and delivered is no Obligatien nor is the Obligee bound by it The Intent of the parties shall not be implied against the direct Rules of the Law 5. Feb. Hill 1649. B. r. For an Intent is but to be guessed at and doth not certainly appear but the Law is direct and plain and therefore it shall not be presumed the parties did mean to do any thing against Law where their intent doth not appear by express words Impossibility A thing which is Impossible in the Law is all one with a thing which is Impossible in nature 21. Car. B. r. For the Common Law is not contradictory in any thing to the Law of nature but agrees with it in all things and may be said to be the same in effect with it Impropriation An Impropriatinn cannot be made but by the Licence of the King Mich. 1649. B. Sup. And he may do it as he hath the supreme authority in all Ecclesiastical as well as civil matters within his dominions Livery and Seisin A Corporation cannot make Livery and Seisin to pass away the Freehold Lands belonging to the Corporation but they must make a Letter of Attorney to another under their Common Seal to make Livery and Seisin Mich. 23. Car. B. r. For Livery and Seisin must be made by one and not by a multitude If a Tenant for years of Land do consent that Livery and Seisin shall be made of the Land let unto him unto him that hath purchased the reversion of those Lands and it be made accordingly this is a good Livery and Seisin to make the reversion pass although that the Tenant for years do not go off from the Land at the time when the Livery and Seisin was made but was then in actual possession of it Mich. 23. Car. B. r. For his Term is not prejudiced by the Livery For only the reversion passeth and his Assent amounts but to an Attornment to him to whom the Livery is made If a Deed of Feofment be made of Land Habendum à die datus and the next day after the date of the Deed the Feoffee gives Livery and Seisin of this Land this is a good Livery and Seisin but if this Livery and Seisin were made by an Attorney Q. Quid operatur Mich. 23. Car. B. r. One may give Authority by Paroll unto another to take Livery and Seisin of Lands for him and if such Livery and Seisin be taken accordingly it is good By Rolle Chief Justice Mich. 1650. B. S. For this shews his assent to take the Lands by the Livery and Seisin and the other is but as a Conduit-pipe to convey the Land unto him Lease Lessor and Lessee If one take a Lease by Indenture for years of a ruinous house or that wanteth Reparations and do covenant in the Lease to leave the house at the end of the term in good repair heis bound to do it and an Action of Covenant doth lie for the Lessor against him if he do it 21. Car. B. r. But if he had not covenanted expresly to do it he had not been bound by Law to do it A Lease which is only voidable and not absolutely void must be made void by the Lessors re-entry but if a Lease be absolutely void there needeth no re-entry 21. Car. B. r. That is said voidable which may be made void if the Lessor will and may be continued if he please at his election it is made void by re-entry and putting out the Lessee or else it is continued by receiving the rent and thereby acknowledging him still for his Tenant Where the Freehold of Lands in question in an Action of Trespass and Ejectment is entire although these Lands be let out to several persons for years by several Leases if he whose title is concerned and doth intend to try the Title of these Lands do seal a Lease of Ejectment upon the Lands only that are
of Mich. 22. Car. B. r. Except he tye himself by special covenant and agreement to do it for the Law will not put an unnecessary trouble upon any man If one do commence an Action in this Court against another and doth not proceed to a tryal in his action by the space of a whole year next after he began his Suit he ought afterwards by the Rules of the Court to give the Defendant one whole Terms Notice that he will try his cause before he proceed to a tryal therein Mich. 22. Car B. r. For his delay might give occasion to the Defendant to conceive that he intended to let his Action fall and so to neglect to make provision for his Defence at the tryal and therefore it is but reason that he should have more then ordinary Notice in an extraordinary case If the Plaintiff give the Defendant Notice for a tryal against him and do not try his cause the same Term he gave Notice for the tryal he ought by the Rules of the Court to give the Defendant new Notice before he proceed to a tryal afterwards but if the Plaintiff do try his cause the same Term wherein he gave Notice he would try his cause although it be at another day after the day he gave Notice he would try it yet he is not bound to give new Notice before he try it for the Defendant is bound to attend the try-all at his own perill Mich. 22. Car. B. r. So it is where Notice is given for a tryal at the Assizes and by reason of multiplicity of business the cause cannot be tryed at that Assizes but though the cause cannot be tryed at one day of that Assizes yet it may be tryed at another day and therefore the parties must attend all the Assizes at their perill without further Notice If Notice for a tryal be given to the Defendant himself or to his Atturney this is a good Notice but if Notice be given thereof to the Councel of the Defendant it is not a good Notice Hill 22. Car. B. r. For Councel are not bound to take notice of such a warning for a tryal nor to give the Clyent Notice thereof and it may be though one have been formerly of Councel with the Defendant in other business or in the cause to be tryed yet he may not be of Councel at the tryal The Plaintiff and Defendant are both bound to take Notice of such Rules of the Court as do concern the proceedings of their cause at their own perills Hill 22. Car. B. r. For if they know them not yet they may inform themselves by their Councel and Atturneys But this is onely to be understood of the general Rules and not of particular rules made upon the motion of either party for of such rules their ought to be notice given to the party concerned Pasc 24. Car. B. r. When Councel are to argue a matter in Law in Court the Judges ought to have Notice thereof given unto them before the day except it be where the Court have appointed a set day for it or if there be not such Notice given then the cause is to be put in the paper of causes that it may come on in course to be spoken unto Pasc 23. Car. B. r. By putting it in the paper the Judges have Notice for they have a paper of the causes to be spoken to in matter of Law the day before they be spoken to by the Officer of the Court. The Officers in Court ought to take Notice of the proceedings of the causes depending in Court Pasc 23. Car. B. r. For for that cause do they sit in Court If the Plaintiff or his Atturney do give Notice unto the Sollicitor of the Defendant that he intends to try his cause at such a time this is a good Notice of the tryal although it be not given unto the Defendant nor his Atturney Pasc 23. Car. B. r. For it is the duty of the Sollicitor to inform his Clyent of it and if he do it not it shall be accounted the folly of the Clyent to entertain a Sollicitor that is so careless in his business and in this case there is no default in the Plaintiff The Defendant ought to have eight dayes Notice of the tryal of the Plaintiffs cause before it be tryed if he live twenty or thirty miles off from the place where the cause is to be tryed but if he live further off he ought to have fourteen dayes Notice before the tryal Trin. 23. Car. B. r. That the Defendant may have convenient time for his journey and to prepare his Councel and witnesses for his tryal The Plaintiff may if he please give the Defendant Notice when he intends to try his cause the same day that he hath joyned Issue with the Defendant in the cause to be tryed betwixt them Trin. 23. Car. B. r. If one be bound by the rule of the Court to give unto another personal Notice of a thing it is not sufficient that Notice be left at the dwelling house of the party Mich. 23. Car. B. r. For personal Notice is Notice given to the person of the party himself and not to another It is not necessary for the Plaintiff to give new Notice of the tryal of his cause where a retraxit is entred for this is but a forbearance to try his cause hac vice and he may afterwards proceed notwithstanding the retraxit was entred Mich. 23. Car. B. r. The entring of a retraxit is when the Plaintiff after he hath entred his cause to be tryed and hath put in his Record doth make an entry in the Judges book that he hath withdrawn his record and intends not then to proceed to his tryal It is sufficient upon an Action of Trespass and Ejectment brought to try the title of Land if the Tenant in possession of the Land have Notice of the Lease of Ejectment although he be but an under Tenant of the Land and although no notice thereof is given to the upper Tenant or to the owner of the Land whose title is concerned Hill 23. Car. B. r. Pasc 24. Car. B. r. For the possession of the Land is onely recoverable in this Action and that doth chiefely concern the Tenant in possession of it A Clerk of Commissioners of Sewers is such a Clerk as the Law takes Notice of Hill 23. Car. B. r. For he is an Officer appointed by Act of Parliament Q. If the Panel of the Jury Impanelled to try a cause be returned and be afterward altered or changed before the tryal the other party ought to have Notice of it otherwise it is a surprizal of the party Pasc 24. Car. B. r. If the Plaintiff give Notice to the Defendant for a tryal and there is no Jury returned to try the cause so that the cause cannot be tryed at the day appointed if the Plaintiff will afterwards try his cause he must give the Defendant new Notice of this tryal Pasc
suit is not determined and the Court will intend that he will proceed no further and the Defendant is not to be tyed to attend upon his proceedings upon incertain tyes Although the Verdict given be prejudicial to the Plaintiff as he conceives yet he ought to bring in the Postea Pasc 1651. B. S. 13. Maii. For he must abide by the tryal though it may prove prejudicial unto him A Postea is a record of this Court trusted with the Atturney in the cause by the Clerk of the Assize and the Atturney is bound if he be so trusted to deliver it into the Office that the Judgement may be entred by it by the Officer of the Court Trin. 1651. B. S. It is not necessary to annex the Distringas unto the Postea although it is usual so to do Trin. 1651. B. S. Presumption Where the Plaintiff doth declare in an action of Debt for Rent behind due upon an Indenture of Demise for years it shall not be Presumed that there is any other Rent due or Lease made then that upon and for which the Plaintiff doth declare Mich. 22. Car. B. r. For this would be a foreign construction and for which there is no inducement Where divers houses are let to one by one Lease the Court will Presume that the Lessee is in possession of them all if the contrary doth not appear Pasc 24. Car. B. r. For although the Lessee may possibly have passed away his interest in some of them to other persons yet this not appearing to the Court they will not presume it to be so One Court of Justice will not Presume that another Court of Justice will do unjustice except it do plainly appear unto them that it is so Pasc 24. Car. B. r. For each Court ought to have an honourable opinion of the proceedings of another Court Portes The Cinque Ports are not absolutely exclusive of the Common Law so that it may not intermedle in some Cases with the proceedings in their Courts Mich. 22. Car. B. r. For the Common Law is the universal and supreme Judge of the Nation and no place ought to be so priviledged either by custome or charter as totally to be exempted from its jurisdiction for this might cause a failer of Justice in some cases if it should be so A Writ of Error to reverse a Judgement given in the Cinque Ports is to be brought before the Warden and Constable of Dover Mich. 22. Car. B. r. Whether a Certiorari lies to any of the Cinque Ports hath been a question Pasc 23. Car. B. r. Yet a Certiorari was granted out of this Court to remove a Judgement given at Dymchurch in Kent being a limb of one of the Cinque Poots in Rook and Knights case Mich. 22. Car. B. r. Rot. 381. moved by Launcelot Johnson of the Inner Temple Property He that hath the Land that lies on both sides of a High way hath the Property of the soile of the High-way in him although the King hath the priviledge for his people to pass through it at their pleasures for the Law presumes that the way was at the first taken out of the Lands of the party that owes the Lands that lye upon both sides of the way Mich. 22. Car. B. r. By Rolle So that it seems it is called the Kings High-way because of the priviledge that the King hath in it for his people to pass and repass through it and not in respect of any Property he hath in the soile it self He that hath the goods of another person delivered unto him to keep hath a special Property in them by reason of the delivery of them and may maintain an Action against a stranger that shall take them out of his possession although they be not his own proper goods Hill 22. Car. B. S. Because an Action doth lye against him to whom they were first delivered by him that did deliver them if he shall not redeliver them when he is demanded to do it A Legatee of goods hath no Property in the goods bequeathed unto him before they be delivered unto him by the Executor or Administrator Mich. 23. Car. B. r. For the property of them is not altered by the Will The Rector of a Parish Church shall be intended to be the proprietor or owner of the tithes of the Parish if the contrary be not shewed Trin. 24. Car. B. r. Because generally tithes do belong to the Rector although in many places they do not If the Sea or a River shall by violent incursion and breaking forth carry away the soil of one in so great a quantity that he that had the Property in the soile can know where his Land is he shall have it but if his soil or land be insensibly or by little and little wasted by the Sea or the River he must lose his Land Pasc 1650. B. S. 11. Maii. If one to support the credite of a Bankrupt will suffer the Bankrupt to have his goods in his custody and to dispose of the Property of them the Property of the goods shall be accounted to be in the Bankrupt and the other upon a tryal for the Property of them shall be judged to have lost his Property in them Pasc 1651. B. S. 18. Ap. Because by so doing he was a cause in part that others were deceived by the Bankrupt whose credit he supported and therefore he is justly punished Partition A Partition of Lands ought to be made according to the quality and the true value of the Lands and not according to the quantity or equal number of Acres Hill 22. Car. B. r. For the Partition ought to be equal which is so in the latter but may not be so in the division by equality of Acres Payment Payment of money before the day of Payment appointed is in Law a Payment at the day Mich. 22. Car. B. r. For it cannot be in Presumption of Law any prejudice to him to whom the Payment is made to have his money paid before the time In an Action of Debt brought for Rent due upon an Indenture of Demise of Lands the Defendant may plead payment without a Deed and it is a good Plea in Bar of the Action Trin. 24. Car. B. r. Because the Lessee cannot compell the Lessor to make him any discharge by Deed or Writting upon Payment of the Rent If one buy any thing of another he that buyes it must pay the money contracted for to be paid for it before the seller is bound to deliver him the thing sold Pasc 24. Car. For the contract doth imply such a condition in it A Payment of money shall be interpreted to be made according to his intention that payes it and not according to his intention that receives it Mich. 1650. B. S. 22. Nov. For every one ought to interpret the intention of his own act and not another Procedendo If this Court do proceed to try a Custome of London there the Party may move for
Car. B. r. And the party that arrested him had been also punished had he not pleaded that he knew not that the party came about his business depending in the Court. One may have a Priviledge in the Land of another by prescription although he hath no title to the Freehold or soil Pasc 23. Car. B. r. For although he now have it by prescription it might arise originally by grant and whatsoever lies in grant may be claimed by prescription One that is Priviledged in this Court ought not thereby to claim his Priviledge to have a tryal at the Bar for to try the title of Lands which he claims in reremainder Trin. 23. Car. B. r. For it is incertain whether the remainder may fall whilst he continues a Priviledged person and for the present he claims no present interest in the Lands Nay though he had a present claim to them yet he ought not to be so Priviledged if the Lands in question be not of a great value or else the title very difficult to be tryed and in such cases any other person though not Priviledged may have a tryal at the Bar. A Priviledged person shall not be allowed his Priviledge upon a motion for it to the Cours but he must appear and plead his Priviledge and upon his pleading it he shall be allowed it Mich. 23. Car. B. r. A Philisers Clerk did claim to be Priviledged in this Court but was denyed it Mich. 23. Car. For though the master may be Priviledged yet the Court takes no notice of the servant The Lord Major of the City of London is Priviledged from all Actions during his Maioralty in regard of his Office except it be for Felony or Treason or Actions which concern Free-hold Pasc 24. Car. B. r. For these are matters of a high nature and it much concerns the Publicke to have speedy Justice to be done in them A Member of Parliament is Priviledged as well in his Lands and goods as in his person By Rolle Chief Justice Mich. 24. Car. B. r. In the Case of the Lord Moon for by being disturbed in any of them he is hindred in serving of the Commonwealth An Atturney of this Court may Plead his Priviledge here after he hath made his defence in the cause in another Court. Pasc 1650. B. S. 4. Maii. For his pleading there doth not take away his Priviledge here but doth onely dispence with it for that time The wife of an Atturney of this Court cannot claim her Priviledge as his wife for the Priviledge is inseperabley annexed unto his person Pasc 1650. B. S. 7. Maii. But if she be arrested her husband must put in Bail for her An Atturney of this Court that is sued as an Executor is not to be Priviledged for he is sued in the right of the Testator and not in his own right Pasc 1650. B. S. 7. Maii. The Prayer of Priviledge is not properly a plea for a Priviledged person did anciently demand his Priviledge by Writ but of latter times the party hath been admitted to his Priviledge upon his prayer to the Court. By Latch Apprentise 1654. B. S. Party and Privy Where one desires to be made a party to defend the title of the Land in question in an ejectione firmae the Court will grant it so that he will confess Lease Entry and Ouster Pasc 23. Car. B. r. In Prince and Warners Case 2. Maii. 1648. But now that rule is enlarged for he must now confess Lease Entry and actual Ouster and must not except against the Jury for want of Hundreders but insist onely upon the tryal of the title and if at the tryal he do not all this then Judgement is to be entred against the Lessors owne ejector Purchase An Alien cannot purchase Lands in England because by this means the Realm would be impoverished by transporting the treasure out of the Realm into foreign Countries and by putting thereby part of the Lands of this Realm that is to say the Lands Purchased by the Alien under the power of a foreign prince Pasc 23. Car. B. r. Praescriptions One cannot prescribe to have two several wayes by one joynt Prescription but he must make several Prescriptions for them Trin. 23. Car. B. r. Two Tenants in Common cannot Prescribe for one Warrein Trin. 23. Car. B. r. That is severally for they cannot both have it severally A Copy-holder for life cannot Prescribe against his Lord by reason of his Copy-hold but a Copy-holder in Fee may Prescribe for he holds his Copy-hold in the nature of an inheritance Mich. 6. Nov. B. S. 1650. Parish A Parish may comprise many Vills within it Hill 23 Car. B. r. 24. Car. Pasc Yet generally a Parish shall not be accounted to have any more then one Vill in it except the contrary be shewed Hill 23. Car. B. r. It shall not be intended that there is more then one Parish in a City except the contrary be made to appear Trin. 23. Car. B. r. For some Cities have but one Parish If the father of poor children leave the Parish and leave his children in the Parish if the children have a Grandfather in the Parish that is able to keep them the Parish is not bound to maintain them but the Grandfather Mich. 24. Car. B. r. If a High-way lye within a Parish the Parish within which it lyeth is bound to repair it of common right if it do not appear that some other persons are bound by Law to repaire it Mich. 1650. B. S. 24. Oct. For it shall be intended that the Parishioners where it lyes have the greatest benefit of it and do make the most use of it Presentation If the King do present to a Church by Laps where he ought to present pleno jure and as Patron of the Church such a Presentation is not good Hill 23. Car. B. r. For the King is deceived in his grant The King may present to a Church by his letter sent to the Ordinary to institute and induct such an one his Clerk to the Living Mich. 1649. B. S. Q. Whether he may do it by Paroll and it seems to me he may for a letter is but a signification of his pleasure which he may as well signifie by word as by writting Principal and Accessory One that is present and aiding to the stabbing of another is not a Principal but only an Accessory to the stabbing within the Act of 1. Jac. that made stabbing to be murder Hill 23. Car. B. r. Proof Although a record of a thing be lost yet the matter may be proved by circumstances to a Jury Pasc 24. Car. B. r. For the right doth not wholly depend upon the Record but a Record is to make the right more clearly appear and to preserve the memory of it to posterity If a Deed which is to be given in evidence at a tryal be enrolled there needeth no other proof of the Deed then to shew the endorsement of the Enrollment Mich. 1649. B. S. For
cases doth use at the prayer of the party who is concerned to dispense with the not speaking to it at that time and doth give the party further time to speak in it without prejudice to him and this is called the putting off of a Peremptory Proclamation At the latter end of the Assizes there useth to be Proclamation made that no more records of nisi prius be put in to be tryed at that Assizes and that they shall not be received after and all persons that are to attend their tryals if the Records of nisi prius to be tryed be not then put in may depart and are bound to give no longer attendance at that Assizes Pasc 1652. B. S. Quashing of Endictments Orders c. THis Court hath authority to Quash Orders of Sessions Presentments Endictments c. made in inferior Courts or before Justices of the Peace or other Commissioners if there be cause that is if they be defective in matter or form Mich 22. Car. B. r. To Quash comes of the French word Quasser or rather Casser which signifies to break in peices to cancel destroy make null or voide But this Quashing is but by favour of the Court for the Court is not tyed Ex Officio to do it but may leave the party to plead unto them and to take advantage of the insufficiency of them by pleading to them as in many cases they use to do An Endictment may be Quashed for false Latine or for having in it insensible words or English words or for defect in the form of it Trin. 23. Car. B. r. But now by the late Act it may be in English The Court will not Quash an Endictment of forcible entry after a Verdict before hearing of both the parties concerned in the cause Mich. 23. Car. B. r. The Court will not Quash an information for a fault in the body of it but will leave the Defendant to demur unto it if he believe it to be insufficient but it is otherwise of an Endictment Pasc 1650. B. S. 24 Maii. Quaere rationem Quo Warranto A Quo Wvrranto was brought for vexation upon fourty eight points and the Court being moved in it did order that the prosecutor should wave that Quo Warranto and should bring a new one and therein insist onely upon three points but that he might proceed to a tryall upon it in such time as he might have done upon the old Hill 22. Car. B. r. Quaere Whether one that is under an Arrest may make an Obligation to the Plaintiff at whose sute he was arrested for his appearance to his Action Pasc 24. Car. B. r. Pasc 1648. B. S. In Leach and Davyes Case If a Lessee for years cut down Timber upon the Land let unto him and carry it away from off the ground Q. Whether the Lessor may bring an Action of Trover and Conversion for the Timber Mich. 24. Car. B. r. Whether a fine levyed of Land shall extend to a contingent use of that Land Mich. 24. Car. B. r. In Thomas and Kemishes Case If there be two Tenants in Common of Land and one of them dye Quaere How his wife shall be endowed of the Land which her husband beld in common whether by metes and bounds or not 16. Nov. 1650. B. S. Return of Writs c. THe Court was moved that a return made upon a Habeas Corpus might be amended before it was filed and it was granted Hill 21. Car. B. r. But after it is filed it cannot be amended for then it is a Record of the Court. If a special Scire Facias do issue forth a nihil cannot be returned upon this Scire Facias Hill 21. Car. B r. For a nihil is a general return which ought not to be in this case because the Writ is a special Writ If an inferior Court do make an ill return of a Habeas Corpus the Court will grant an alias Habeas Corpus and also set an amercement upon them for making an ill return of the former Habeas Corpus Hill 21. Car. B. r. Because thereby viz. by the ill return Justice is delayed and the party grieved is also put to more trouble and charge to obtain it If a Writ out of this Court be directed to an inferior Court which the inferior Court is not bound to allow but may proceed notwithstanding the Writ sent unto them yet they ought to make a Return upon the Writ and in the Return to shew the cause why they do not allow the Writ but do proceed in the Cause notwithstanding the Writ Hill 22. Car. B. r. For the Writs of this Court are to be obeyed if there be not very good reason shewed to the contrary why they ought not to be obeyed A prisoner brought to the Bar upon the Return of his Habeas Corpus may have a Copy of the Return if he pray it that he may take his exceptions to the Return Mich. 22. Car. B. r. But the Return must be first filed If the Under Sheriff of a County may be justly challenged as partial to the Plaintiff or the Defendant in respect of kindred or alliance or some other cause that may render him not to be indifferent between the parties and he be to execute a Venire Facias to summon to a Jury to try an issue joyned betwixt the Plaintiff and Defendant in such cases the Court will upon motion of the party that is likely to be prejudiced if a Jury should be returned by him order that the High Sheriff of the County shall himself Return the Jury Mich. 22. Car. B. r. If one be arrested by the Sheriffs Bailiff and a Bond be given unto the Sheriff that the party arrested shall appear at the Return of the Writ the Sheriff ought not to Return a Non est inventus but a Cepi Corpus and if he do Return a non est inventus the Plaintiff may bring an Action upon the Case against the Sheriff for making a false Return or else the Court may amerce him for it and if the Sheriff do Return a Cepi Corpus and yet the party Arrested doth not appear at the day the Court will encrease amercements upon the Sheriff untill he make the party to appear Hill 22. Car. B. r. For when the party is arrested he is in custody of the Sheriff and he ought to keep him at his peril and bring him in at the day and it is of favour to the party that he takes Bond of him for his appearance for he is not bound to do it and if he suffer by it he may take his remedy against the party upon the bond It is not requisite that the Sheriff in making a Return should insert his title or name of dignity or Christian or surname but onely by his name of office Hill 22. Car. B. r. Yet if he do insert those names which is usually done the Return is not thereby hurt or made defective If the Sheriff Return a Cepi Corpus and
Upon a contract in the nature of a Debt Request or no Request is not material but it is otherwise if the contract be a special contract for a Collaterall thing Mich. 1650. B. S. Repeal The Defendant cannot Repeal his Warrant of Atturney given to an Atturney to appear for him but he is compellable to appear by his Atturney according to his Warrant by the rules of the Court that he may not delay his appearance by that means to the prejudice of the Plaintiff Trin. 22. Car. B. r. Reversal The chief Justice or the ancientest Judge in the Court in his absence doth alwayes pronounce the reversal of an erroneous judgement to be Reversed by a Writ of Error openly in Court upon the prayer of the party and he pronounceth it in French to this effect Pur les errors avandit et auters errors manifest in les record soyt les judgement reverse le Defendant restore a tout ceo que il ad per ceo perd In English thus For the aforesaid errors and other manifest errors in the Record let the Judgement be Reversed and the Defendant restored to all that which he hath lost by it Trin. 22. Car. B. r. But now the Seignior Judge pronounceth it and doth it in English The Reversal of a Judgement may be pronounced conditionally that is that the Judgement is Reversed if the Defendant in the Writ of Error do not shew cause to the contrary at an appointed time Trin. 22. Car. B. r. Where divers persons stand Out-lawed for a forcible entry if the Out-lawry be erroneous it may be Reversed as to one of the persons Out lawed and stand good as to the others but the possession of the Land cannot be restored untill the Out-lawry be Reversed in the whole Hill 22. Car. B. r. The Judge will not pronounce the Reversal of an erroneous Judgement though it be adjudged to be erroneous except the Councel for the Plaintiff in the Writ of Error do pray it may be pronounced Hill 1649. B. S. 30 Jan. For the Judges are only to do justice to those that desire it Restitution and Rerestitution No Restitution is to be granted by the Court upon the suggestion of the insufficiency of an endictment of forcible entry or other matter untill the Certiorari granted to remove the endictment into this Court be returned Mich. 22. Car. B. r. For before the retâ—rn the Court hath nothing before them upon record to judg upon Where an endictment of forcible entry is quashed the Court upon motion doth usually grant the party endicted a Writ of Rerestitution to restore him to the possession of the Land yet the Court may if they please settle the possession of the Land in question according to their own discretions viz. where they shall conceive the most right to be for the possession Mich. 22. Car. B. r. There ought to be no Restitution or Rerestitution granted of the possession of Lands where it cannot be grounded upon some matter of record Hill 22. Car. B. r. A Writ of Restitution lies to restore one to the place of one of the Common Councell of London or to the place of a Constable if he be illegally put out of such a place Trin. 22. Car. B. r. Or to a Church-wardens place or to a Recorders or Town-Clarks place and generally to any publike Office or place of profit or trust but not to a private Office or place The words remisit relaxavit expressed in a Charter of pardon granted by the King unto one for a felony committed by him do not restore him unto his goods which he forfeited unto the King by being convict of the felony but there ought to be the word restituit which doth properly and in its genuine signification import a Restitution to a thing which he hath not whereas the words remisit relaxavit may signifie the remitting or releasing of the claim which one hath to a thing which is in his possession to whom the release is made Trin. 23. Car. B. r. The proper nature of a Writ of Restitution is to restore the party that hath it unto the possession of a free-hold or other matter of profit Trin. 23. Car. B. r. Yet this doth not generally hold for one may have a Writ of Restitution in some Cases to be restored to a place of no profit as is before expressed The Law doth oftentimes restore the possession to one without a Writ of Restitution to wit by a Writ of Haberefacias possessionem and otherwayes in common course and proceedings of justice Trin. 23. Car. B. r. A Writ of Restitution is not properly to be granted but in such Cases where the party cannot be restored by an ordinary way of justice or course of Law and many times such cases do happen Trin. 23. Car. B. r. If one be endicted for a forcible entry and the party endicted do traverse the endictment he cannot have restitution granted unto him before a tryall and a verdict and judgment also given for him although the endictment be erroneous Mich. 23. Car. B. r. Mich. 24. Car. B. r. For it is too late to move to quash the endictment after he hath taken his traverse and so the endictment must stand good against him till the tryall The Justices of Peace only before whom an endictment of forcible entry is found must give the party Restitution who was put out of possession by force and not other Justices of Peace of the County but the Judges of this Court may grant a Writ of Restitution though the endictment was not found before them Hill 23. Car. B. r. For they have a superintendent power over all England Where a Judgment for Land is reversed in this Court by a Writ of Error the Court may grant a Writ of Restitution to the Sheriff to put the party in possession of the Land recovered from him by the erroneous judgment Pasc 24. Car. B. r. There may a Writ of Restitution be granted to one that stands endicted for a forcible entry after he hath traversed the endictment and before the tryall if there do appear to be apparent delay in the proceeding of the Defendant upon the traverse else not as is aforesaid Trin. 24. Car B. r. There cannot be a Writ of Rerestitution granted where there doth not appear to have been a Writ of Restitution formerly granted in the Case Mich. 1650. B. S. For the very word Rerestitution doth imply that there was a Writ of Restitution formerly granted A Writ of Rererestitution may be granted upon a motion for it if the Court see cause to grant it By Ask Justice Pasc 1650 B S. 2. Maii. Upon an endictment of forcible entry found against the party if he do neither traverse nor plead to the endictment the party put out of possession may be restored to his possession without moving the Court. Pasc 1650. B. S. 22. Maii. Rule The Court will not make a Rule for a thing which may be done by the
Parliament or other payments Trin. 23. Car. B. r. Tithes The rector of a Church shall be accounted the proprietor of the Tithes of that Parish to which the Church doth belong if the contrary be not shewed Trin. 24. Car. B. r. Tithes of Land which do not lye in an Parish do properly belong to the King Mich. 24. Car. B. r. For that which no Subject can justly claim is the Kings Lands which lye in a Forest and are in the hands of the King are free from paying of Tithes although they do lye within some Parish but if they be disaforested and come into the hands of another they ought to pay Tithes for the not paying of Tithes for them whilst they were in the Kings hands is but an immunity for the time and not an absolute discharge Mich. 24. Car. B. r. Tithes are not due to be paid Jure Divino but per legem terrae so held by the Court agreeing with J. Seldons History of Tithes Mich. 1649 B. S. If Lands paid no Tithes before the Statute of Ed. 6. or but very inconsiderable Tithes and afterwards the Lands for which the Tithes were paid are improved by the owner he shall onely pay the accustomed Tithes paid for them before the improvement of them to wit for the seven last years immediately preceding the improvement but if no Tithes were paid for them before the improvement no Tithes shall be paid for them after the improvement 1650. B. S. Venue and Venire Facias AVenire Facias ought to be de aliquo vicineto that is neighborhood and there if the Writ of Venire do say Venire Facias homines Burgi it is not a good Venire for it ought to be Venire Facias homines de Burgo 21. Car. B. r. Q Differentiam inter of and from If a special Verdict be imperfect in matter of substance there must be a new Venire that there may be a new Verdict found because the ill Verdict doth not give the Court power to Judge of the matter in Law and so it is also if a demurrer upon an evidence be not good By Rolle Mich. 22. Car. B. r. Trin. 23. Car. B. r. Q. A Venire Facias that is filed cannot be altered without the consent of the parties Mich. 22. Car. B. r. For the filing of it doth make it a Record In an Action of Trespass and Ejectment the venue ought to be from the Vill or Hamlet where the Lands in question do lye and if the Lands lye in no Vill or Hamlet the venue ought to be de corpore Comitatus that is from the body of the County Mich. 22. Car. B. r. The Judges may alter the venue from the place whence by the Law it ought otherwise to be if they believe there cannot be an indifferent tryal in the County where the venue was first laid Mich. 22. Car. B. r. By reason of the great power that one party hath in the County or for some other cause Where the venue cannot be from a Vill Hamlet or lieu conus there it may be de corpore comitatus Mich. 22. Car. B. r. For if it might not be so the cause could not be tryed A lieu conus is a Castle Mannor or other notorious place well known and generally taken notice of by those that dwell about it and not a close or Pasture ground or such like place of no repute Mich. 22. Car. B. r. In all cases where there is to be a special Jury there the Venire Facias must be special Mich 22. Car. B. r. For ordinary forms are not applicable to extraordinary cases If the matter to be tryed be within divers places in one and the same County the Venire shall be general but if the matter be in divers Countries there the venire ought to be special Mich. 22. Car. B. r. For the general form of a venire doth not warrant to return a Jury in one cause out of divers Counties but in such cases to prevent the failer of Justice the Court hath power to vary from the old forms Where a certain place cannot be known whence the venue should be the venue is to be de corpore comitatus and so it is where a custom of the County is to be tryed for the custom runs through the whole County Hill 22. Car. B. r. And therefore may be indifferently tryed by Jurors returned from any part of the County A fault in a Venire is helped after a Verdict by the Statute of Jeofailes but where the venire is wholly insufficient it is not helped for the Statute extends not to such venires Hill 22. Car. B. r. After a Plea pleaded and an issue joyned in the cause the Venire cannot be amended except the parties consent to it Hill 22. Car. B. r. Pasc 24. Car. B. r. Trin. 24. Car. B. r. If the venue be laid in a foreign County and the parties proceed to issue in the cause the Court will not change the Venue afterwards although the Defendant would try the issue afterwards by provisoe Pasc 23. Car. B. r. Where the Verdict is imperfect so that Judgement cannot be given upon it there must be a new venire to try the cause de novo Mich. 23. Car. B. r. For the former tryal is to no purpose If a matter in Law be depending undetermined and an issue also joyned in the cause there must be a special venire awarded tam ad tryandum exitum quam c. Hill 23. Car. B. r. It is not necessary to enter the venire facias before the tryal but the Plaintiffs Atturney ought to give a Copy of it unto the Defendants Atturney before the tryal if he desire it and after the tryal it may be entred Pasc 24. Car. B. r. A Venire de vicineto Civitatis is good without naming of the Parish within the City out of which the Jurors are summoned and so was it said to be adjudged in Gavell and Gippoes case 10. Jacob. contrary to the book of 5. H. 5. For a City may have but one Parish in it The party that will move to have the venue changed he must move for it the next Term after the Action is brought Trin. 23. Car. B. r. This Court ought not to change the venue so that by it the cause cannot be tryed within the jurisdiction of the Court Trin. 23. Car. B. r. If the Defendant will move to change the venue he must make oath that the cause of Action if any be did arise in the County where he would have the venue laid and not in the County where the Plaintiff hath laid his Action and the Defendants Atturney or his Clerk must make oath that he received the Plaintiffs Declaration after the precedent Term and not before Trin. 23. Car. B. r. Or else the Court will not change it Where an Action is brought for a real thing which is called a real Action the venue ought to be laid in that County where the thing is
for which the Action is brought Hill 23. Car. B. r. The Court will not change the venue in an Action brought upon an obligation Hill 23. Car. B. r. Because the Action is personal and transitory and it is at the election of the party to lay it where he pleaseth yet the rules of Court for the laying of personal and transitory Actions have not been very constant of latter times but the Courts do vary as they see cause A Judgment given in an inferior Court was reversed here by a Writ of Error because the Venire was Venire facias c. and not at large Hill 1650. B. S. But such a Venire in the Common Pleas is good For the constant course there is to enter the Venire briefly with an c. The Defendant may move to alter the Venue although the Plaintiffs Declaration be not perfect Mich. 1650. 25 Oct. B. S. For though it be not perfect in all things yet it may be so perfect that he understands where the Venue is laid and that is enough to ground a motion upon to alter it if it be laid where it ought not to be In an Action of Debt brought for Rent due for Land the Venue may not be laid out of the County where the Land lies for which the Rent is due for the Action is a locall action ratione terrae out of which the rent is issuing Hill 1650. B. S. 29. Jan. A Venue cannot be laid in Wales in a transitory Action the Cause whereof did arise in England because this would be to remove the Cause to be tryed out of the jurisdiction of the Court and then this Court can give no judgment in it Trin. 23. Car. B. r. The Venue cannot be changed after the Defendant hath pleaded although the Plaintiff have amended his Plea in a principall and materiall part of it after the Defendant put in his Plea and though the Defendant do imparle by reason of that amendment for all this makes it not a new Declaration 1650. B. S. A Venire out of an inferior Court ought to runne thus Ideo praeceptum est in eadem Curia or per candem Curiam Hill 1649. B. S. 30. Jan. But now those Latine words must be in English It is not necessary to insert the Names of the Jurors in the Venire facias although it was the antient course to do it Hill 1649. B. S. 4. Feb. So that antient forms may be altered upon good reason else not Where the Declaration is good but the Plea is uncertain and yet an Issue is joyned and tryed upon it this is a mis-tryall for there can be no judgment given upon it and therefore there must be a Repleader and a new Venire to summon another Jury to try the Cause again Hill 1649. B. S. 8. Feb. A Venire facias is oftentimes retorned before the Plea be entred and yet it is well enough Pasc 1650. B. S. 24. Maii. For the Plea is a Plea before it is entred so that there is an Issue to be tryed which is a sufficient warrant for awarding and retorning of the Venire A Venue is not to be changed in an Action of Debt brought for Rent or upon an Obligation or in an Action of Covenant or in an Action of Accompt Trin. 1650. B. S. 26. Junii Mich. 1650. B. S. 23. Nov. The Venire ought to be delivered to the Sheriff four dayes before the retorn of it if the Jury do dwell forty miles off and eight dayes if they dwell further off then forty miles from the place where the tryall is to be Pasc 1651. B. S. 13. Maii. If the Defendant do move to change the Venue upon Affidavit made that the cause of Action if any be did arise either in Kent or Surrey for example and not in London where the Action is laid the Plaintiff shall have his election to lay his Action either in Kent or in Surrey upon giving the Defendant notice in which of them he will lay it but shall not lay it in London 1651. B. S. The Attorneys are sworn not to lay personall Actions in forreign Counties but in the Counties where the causes of them did arise and the Statute doth also prohibit it for the laying them in forreign Counties doth put the people to charge for motions to alter the Venues into their proper Counties and therefore it is fit the Attorneys should observe it By Rolle 1650. B. S. But as yet the practice herein is unsetled and inconstant And it may be it is not setled because there might great inconveniences grow by setling of it and tying up the hands of the Court from doing that which the exigency of the case may require Verdict If there be severall ejectors of severall parcels of Land mentioned in a Lease of Ejectment the Jury ought to finde this matter especially Hill 21. Car. B. r. A Verdict which is found against a Record is a void Verdict Hill 21. Car. B. r. For a Record is of a higher nature and more credit is to be given unto it then unto a Verdict If a Verdict may be any wayes construed to make it good there ought not to be made a construction of it to destroy it and make it void Hill 21. Car. B. r. For the Law delights in the preservation of things and would not have things to be done in vain The Court will not take a Verdict by default except the Plaintiffs Councell do pray it Hill 21. Car. B. r. For the Plaintiff may choose whether he will take the Verdict or no and therefore the Court will not take it except he desire it If the Plaintiff doth fail in proving of his Issue the Verdict ought to be found for the Defendant except the Jury do know of their own knowledg that the Defendant is guilty Hill 21. Car. B. r. So that the Jury is not so tyed up by the evidence that they must alwayes give their Verdict according to it If one of a Jury that found a Verdict were outlawed at the time when the Verdict was found the Verdict is not good but may be reversed by error Hill 21. Car. B. r. For an out lawed person is out of the protection of the Law and is debarred from intermedling with any Civil affairs as a person excommunicated is from participating in Divine Ordinances If a Verdict be found for the Plaintiff and he will not enter it if the Defendant move the Court in it they will compell him to enter it and so it is where the Plaintiff doth refuse to enter a Verdict found for him upon the executing of a Writ of enquiry of Dammages Mich. 22. Car. B. r. For the Plaintiff ought to rest satisfied with what the Law gives him Or the Defendant may enter it himself if he will A Declaration that is not good is in many cases helped after a Verdict by the Statute of Jeofailes but where the Declaration doth not make it appear that the Plaintiff had some