heir and an authority cannot divest them out of him this is not like to the surrendring of Copyhold lands into the hands of the Lord for such a surrender cannot be revoked but this authority may be revoked But which is more the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor but only by way of recital which is not good for they ought to have been found to directly nor doth it appear that they were customary Tenants at the time of the admittance of the party neither is there any possession or title found in the Defendant and so the Plaintif having primer possession the Defendant is culpable neither is it found that the Customary Tenant who gave this authority had an estate in fee-simple in the lands and if he had but an estate for life he could not make such a Letter of Attorney neither is the authority given warranted by the Custom and so he prayed judgement for the Plaintif Wilmot for the Defendant As to the authority he said that it was good and did well enough survive the party that gave it because it is supported with a special direction from the party that gave it 1 H. 7.8 and this is the reason that an Executor may sell lands of the Testator after his death viz. because his authority is so supported 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage and therefore shall not now be admitted to take it But besides the authority here given is more than a bare authority for it is backed with the circumstances of time persons and of a Custom which is not of a slight esteem in Law and by such a Custom which is very reasonable for it is but to enable the party to dispose of his own lands and far more unreasonable Customs than this are allowed in our Law as that in Kent for an Infant of 15 years of age to have power to sell his lands neither is this Custom contrary to any positive rule of Law for it is here to create the authority to begin after the parties death that created it and so it is not to determine with his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and this Custom extends but within the Manor which is but to a small compass of ground and so the publique is not much concerned in it and the case of 17 Car. in this Court Bambridge and Whaddons case differs from our Case for that was not supported with a custome as this is And it doth appear by the Record that Dalby the Attorney is a customary Tenant and the admission is also found by the Verdict to be secundum consuetudinem Manerii and so that is well enough and then one cannot gain a Copyhold estate by disseisin and so no primer seisin shall be intended as was urged on the other side and it is also found that the Copyholder was seised Roll chief Iustice It will be a hard matter to maintain the Custom Custom if it be not found that the Copy-holder was seised in fee of the Copyhold lands 2ly It is not here found that the land is demisable according to the will of the Lord and so it may be free land and then the custom doth not extend unto it nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants Disseisin And the primer possession will make a disseisin here by the Defendant if the custom be not-well found and so judgement must be for the Plaintif Devise And I cannot see how the Custom can be good it being against the rules of Law Surrender A man cannot devise Copyhold lands and this case is worse but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise for it is a hard case and my Brothers have not been attended with Books Mich. following Iudgement was given for the Plaintif nisi It was moved again and the Court would advise Postea Batchelour against Parsons Trin. 1651 Banc. sup Mich. 1652. rot 381. BAtchelour brings a writ of Error to reverse a Iudgement given against him for Parsons in an Action of Debt in the Common Pleas and the Error assigned was Error to reverse a judgement in debt that there are two Declarations in the Record one in the Emparlance Roll the other in the Plea Roll and the Original certified upon the writ of Error doth not warrant the first Declaration for it was filed after it Hales answered that the Record is good enough if the Original dowarrant the last Declaration for this is the common course used in the Common Pleas as the Clarks there do inform me there are many Cases like this in the Common Pleas. Wild of Councel on the other side answered that this is a strange course for they ought first to file the Original because it is the beginning and ground-work of the sute and it not being so done here the Iudgement is given without an Original this is a judgement by default and the imparlance is part of the sute Roll chief Iustice Imparlance Intendment Certiorari The Imparlance Roll is the principal part of the sute and to consound things by intendment that the imparlance may be touching another sute is not good and it matters not what the Custom is in the Common Pleas if it be against Law and both Rolls ought to be certified here Ierman Iustice ad idem Roll chief Iustice All the Record in the Common Pleas which is in the custody of the chief Iustice there ought to be certified by him upon the Retorn of the Writ of Error and here the Imparlance Roll is in his custody and therefore he ought to certifie it and if there be two writs of Error Error and one is good and the other naught we will take the best to affirm the judgement The Original ought not to be fitted to the Declaration but the Declaration to the Original because the Original is the foundation of the sute and therefore the course used in the Common Pleas is a preposterous course Original viz. to declare against the Defendant and after to file an original against him to warrant the Declaration It is here certifyed to be one Record and how can we take the emparlance Roll to be part of the Record it being not certyfied with it and if there be variance between the emparlance Roll and the plea Roll Variance it is Error We will advise but we must not suffer new wayes yet we are loth notwithstanding to reverse Iudgements given in the Common pleas Therefore shew cause next term why the Iudgement should not be reversed Kirman against Iohnson Trin. 1651. Banc. sup IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found
Court Twisden on the other side confessed the Books were so but here the Battery is not apparent and the wound is internal and not to be viewed by the Court. Roll chief Iustice said 3 things are considerable 1. whether the Court can increase the damages 2ly Whether the wound be apparent and 3ly Whether the damages given be too small The Court upon view of the party and examination of Chirurgions and Witnesses on both sides upon Oath did conclude that they might increase the damages and that the wound was apparent and that the damages were too small and therefore they increased them to 400 l. and said they would not encrease them more because they could not inquire into all the circumstances of the fact as the jury might but they thought fitting to encrease them in some proportion because the offence was great and such outragious Acts are not to be slightly punished VVallis against Bucknal Hill 1651. Banc. sup VPon a special verdict found in an Ejectione firmae the case sell out to be this Special Verdict in an Ejectione firmse A Copyholder of inheritance made a Letter of Attorney to two joyntly and severally to surrender his Copyhold lands in Fee to certain uses after his death according to the Custom of the Manor The question made by Ellis of Councel with the Plaintif was whether the Custom was good or not he argued that it was not a good Custom In Sir Iohn Davis Reports it is said a Custom must be reasonable and a Custom may be reasonable when it is but against a particular Law and not a general Law but the Custom here thus to convey land is against a general Law Particular Customs may be against publique interest pro bono public but if they be not as in our case they are not they are not good Pro bono publico Next an authority given ought to be Countermandable and to determine at the death of the party but this is not so and therefore it is no good authority 19 E. 3. f. 5. 2ly None can give an authority to another to do a thing which he could not do himself but here it is otherwise and therefore it is not a good authority 3ly By the death of the Copyholder the lands are setled in the heir and this authority given shall not devest them and this is not like the surrendring of lands into the hands of the Lord for a surrender cannot be revoked but this authority is revokable Next the Verdict doth not find that the 2 Attorneys are Customary tenants but only by way of recital which is not good nor doth it appear they were customary tenants at the time of the admittance and here is not found any possession or title in the Defendant and so the Plaintif having primer possession the Defendant is guilty neither is it found that the customary Tenant had see-simple in the land And if he had but an estate for life he could not make such a letter of Attorney Also the authority given is not warranted by the Custom set forth Wilmot of Councel with the Defendant said That this authority here is supported with a special direction which may survive the party that gives it 1 H. 7.8 And an authority may survive the party that gives it else how can an Executor sell lands by the authority given unto him 21 E. 4. f. 8. 31. E. 1. Fitzherb 45. and as for the heir he hath neglected his advantage it he had any and cannot now take it But besides the authority here given is more than a bare authority for it is backed with circumstances of time and person and here is also a Custom to support it and this Custom is a reasonable Custom for it is but to enable a man to dispose of his own lands and there are far more unreasonable Customs than this allowed in our law as the Custom of Kent for one of the age of 15 years to be enabled to sell his lands and this Custom is not against any positive rule of Law for the custom is to create the authority to begin after his death and so it is not to determine by his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and it is extended but within a small compass of land and so cannot be very prejudicial to the publique And Bambridge and Whaddons case 17 Car. in this Court cited on the other side doth differ from this case for tâ—ere was no Custom to support it And it doth appear here by the Record that Dalby the Attorney is a customary Tenant and the admission here is found to be secundum consuetudinem Manerii And one cannot gain a Copyhold estate by disseisin and so here can be no primer seisin intended and it is found the Copyholder is seised Roll chief Iustice said It will be hard to maintain the Custom Custom if it be not found that the party was seiâ—â—d in see of the Copyhold lands But 2ly it is not here found that the land is demisable according to the will of the Lord and so it may be free land then the custom doth not reach it Neither is it found that the 2 Attorneys were Copyhold Tenants and the primer possession here will make a disseisin by the Defendant if the Custom be not well found and then it is for the Plaintif and I cannot see how the Custom can be good it being against the rules of Law for a man cannot devise a Copyhold and here the case is worse Devise but he may surrender to the use of his last Will and Testament At another day Wilmot to the Exception taken That it is not found that the two Attorneys were Tenants of the Manor said there is so much found as shall make them be presumed to be Tenants of the Manor for it is found that the party is admitted secundum consuetudinem Manerii which cannot be a good admittance if they were not Tenants Roll chief Iustice answered to be admitted secundum consuetudinem goes â—o the Admittance not to the Letter of Attorney But we will advise At another day Twisden prayed judgement for the Plaintif and insisted upon the Exception that the two Attorneys were not found customary Tenants for one of them is not mentioned at all and the other is found so only by way of recital and so they have not entitled themselves to the Custom and then the Defendant hath no title The Court ruled to shew cause Saturday following why the Plaintif should not have judgement Antea Custodes against Tawny and Norwood Hill 1651. Banc. sup TAwny and Norwood were jointly endicted for blasphemous words severally spoken by them Endictment for speaking blasphemous words upon the late Statute made against blasphemy and were convicted the parties being removed hither by Habeas Corpus It was urged that the Endictment was not good because it was joynt whereas the words being
estate may pass by Attorney and so although here be but a bare power given yet it is well executed notwithstanding his death that gave it 2ly This Letter of Attorney was not countermandable by the Copyholder himself during his life and therefore it shall not be countermanded by his death and though it had been countermandable during his life yet it being not countermanded by him in his life his death shall not countermand it and the custom doth strengthen this power Next this custom is not contradictory for here is no Attorney made but a writing made in the nature of a Letter of Attorney and a power to surrender given by it and it is no more than for one Copyholder to surrender for another which is usual and in Cooks 9 Rep. f. 76. A Copyholder is called an Attorney also Copyhold estates are made by customs and therefore such customs which are to confirm estates are to be favoured in Law although they do differ from conveyances of estates at the Common Law and this custom is not only reasonable but convenient also for the passing of Copyhold estates And this custom enlarges the power of alienations and such customs have generally been admitted good though different from the Common Law And when a custom is become a Law it is very dangerous to alter it and the doing of it would overthrow many estates Ellis Sollicitor General on the other side argued That the custom is not good because it is against the rule of Law That an authority given should survive the party that gave it and a custom cannot strengthen it for a custom ought to be reasonable and agreeing to the nature of the thing which it concerns otherwise it cannot be good for Ratio est formalis causa consuetudinis Dalisons Rep. 32. 1 Instit f. 59. And this cause cannot be reasonable because it cannot give an authority to another to do such a thing for him after his death which he could not do during his life And this custom doth purely destroy the nature of the Common Law and therefore cannot be good And it is against the very nature of an authority to survive and so consequently it is against the nature of the thing Dyer 357. 10 E. 3. f. 5. 18 Rep. Vnyers case The party in his life time might have revoked this authority and therefore his death doth revoke it and by the death of the Copyholder the Copyhold is descended and cannot be surrendred by a dead man and here was no incoation of the estate of the party that is dead and I hold there is a difference betwixt a will and an authority And also here the Letter of Attorney is not pursuant to the custom and therefore it is a void Letter of Attorney 16 Iac. rot 530. Greenwood and Onslaes case Customs are to be taken strictly Copyhold and to be so pursued and it is not so here for here is an addition to the custom and this makes all void Roll chief Iustice Copyholds are much led by the customs of the Manor and me thinks here is little difference betwixtt surrendring into the hands of another Copyholder to make a surrender for him and this case and the variances are not so considerable as to make it void here The Court would advise At another day the case was again put Custom and the Court delivered their opinion that the custom was good and Roll chief Iustice said that the death of the party doth not revoke this writing made in the nature of a Letter of Attorney Revocation for it is strengthned by the custom and it is not like an ordinary Letter of Attorney which becoms void by the death of him that made it Authority Executor for this custom is a Law and the authority here survives as an Executor may sell the Testators lands it he be impowered to do it by the will and therefore the Custom is good and let the Plaintif have judgement nisi c. Child Trin. 1654. Banc. sup AN Action upon the Statute of 5 Eliz. was brought for using a Trade not having served an Apprentiship in it That the Defendant might not plead to the Action Serjeant Fletcher moved that the Defendant might not be compelled to plead because he ought not to be sued out of the County where he useth the Trade Roll chief Iustice proceed according to Law and plead this matter or move it in arrest of Iudgement Rule for we will make no rule Trin. 1654. Banc. sup BY Roll chief Iustice Where an Action on the Case lies and where not an Action upon the case doth not lie against one for causing another to be endicted for a Trespass but for causing one to be endicted for a thing which deserves corporal punishment or a thing which sounds in scandal of the party endicted an Action upon the case will lie Nota. Stevens against Ask. Mich. 1654. Banc. sup STephens brought an Action upon the case against Ask for these words Action on the Case for words Arrest of judgement Adjective words Thou art a common Bastard-bearing Whore and hadst two Bastards by a Butcher and I will prove it Vpon not guilty pleaded and a verdict found for the Plaintif Twisden moved in Arrest of Iudgement that the first words viz. Thou art a common Bastard-bearing Whore are not actionable because they are adjective words and are not positive And for the other words they are not actionable because they were spoken of a Feme Covert who cannot have a Bastard Vpon this the judgement was arrested till the next Term and then Wild moved for judgement for that he conceived that the words taken together are actionable and cited Owen levons case adjudged in this Court to prove it Roll chief Iustice If she were married at the time of the words spoken she could not have a Bastard but yet why should not the words be actionable for the words purport that she was not maried when she had the Bastards and the Iury hath found for the Plaintif Therefore let her take her judgement nisi Barker and Weston Mich. 1654. Banc. sup THe Court was moved that the bail to an Action might be discharged To discharge Bail because they had now brought in the principal and it was but one day after the return of the writ But Roll chief Iustice answered that it may not be because they come in upon the return of the second Scire facias Harvey and Mountney Mich. 1654. anc sup IN this Case the Action being a Trespass and Ejectment and the title concerning Hugh Audley of the Inner Temple the Defendant was by rule of Court at the tryal which was to be at the bar to appear and confess the lease entry and ouster and to stand upon the title only Plaintif non-sute and yet judgement for him yet at the tryal he would not appear upon which the Plaintif was non-sute and yet the judgement was for the Plaintif upon
find it if they see cause to the contrary and that in the case at the barr the Action might be as well grounded upon the scandal which grew to the party who was Endicted as upon the trouble which might have befallen him by reason of the preferring the bill against him Hellena Pasc 23 Car. B. r. AN Action upon the Case was brought for these words Arrest of Iudgement in an Action upon the Case Hellena is a great Witch and a Verdict found for the Plaintiff It was moved to stay Iudgement because the words were not Actionable for they did not shew that the Plaintiff had bewitched any thing or done any thing that brought her within the compass of the Statute 1. Jac. against Witch-Craft Iudgement was hereupon stayed VVilliamson against Henley Pasc 23 Car. Banc. Reg. Trin. 21 Car. rot 362. AN Action of Debt was brought upon an obligation Arrest of Iudgement in Debt upon an obligation the condition was that if the Defendant did sell the tithes in Ransom more that he should pay the Plaintiff such a sum of money but if he sold them not that then he should deliver an obligation to the Plaintiff for the payment of a certain sum of money therein expressed at a certain day therein limited and for non performance of the condition is the Acion brought The Plaintiff obtains a Verdict the Defendant moves in Arrest of Iudgement Time that he ought to have convenient time for doing of the things expressed in the condition and that it appears not by the Record that he had convenient time and so there is no breach of the condition But the Court held that the time between the date of the obligation and the bringing of the Action was a conveninent time and that there being a second thing to be performed in case the former were not done that therefore that former thing ought to be done in some reasonable time elce the party would be too much prejudiced by staying to have the second thing performed and therefore ruled that Iudgement should be entred without better matter should be shewed Savages Case Pasc 23 Car. B. R. SAvage was Endicted for forging and publishing of Letters of credence to gather money Error upon a Judgement upon an Endictment and was convicted and Iudgement given against him upon his own confession and 100 l. fine set upon him et quod capiatur Exceptions were taken to this Iudgement 1. That it did not appear wher he received any money by virtue of these counterfeit Letters nor at what time But the Court answered that the substance of the offence for which he was Endicted was Endictment the forging and publishing of the Letters and not the collecting of the money for though he had not collected a penny yet the Endictment was good A second exception was that the Endictment did not say quod Counterfecit falso But the Court held that the word Counterfecit necessarily implyed in it the word falso and so not material whether falso were expressed or omitted 3ly It was objected that the party was committed before he was convicted But to this the Court answered Conviction that he was committed upon his own confession which is a conviction in Law and the Iudgement held good and affirmed Needler and Guest Pasc 23 Car. Banc. Reg. Entred Trin 1649. rot NEedler brings an Action of Covenant against Guest Artest of Iudgement in a breach of Covenant upon Articles amongst which one was to allow such a sum of money to an under Clerk in the six Clerks Office by the sheet for every quire of paper he should writein copying and engrossing of bills answers c. as was expressed in the said Articles and upon this Needler obtains a verdict against Guest In Arrest of Iudgement divers exceptions were taken and over-ruled but one was insisted upon which was this that there was more found in the breach of the Covenant assigned then was contained in the Covenant it self for it was found that he had not payed for 72 sheets which was 5 quire and a half and so damages were given for more than ought to be Breach for the Covenant was to pay so much the quire and mentions not any half Damages and for this the Iudgement was stayed for the Court said that the Law would not supply a casus omissus to bring it within the Covenant to ground a breach thereupon Supply what ever the intent of the partyes was that were parties to the Articles VVhitley and Fawsett Pasc 23 Car. Banc. reg VVHitley brings an Action of Trover Action of Proven for distraining selling his Cattel and Conversion against Fawsett for taking his Cattel by way of distress and selling them by virtue of a warrant of Commissioners of Sewers for not paying of a tax set by them towards the reparation of Sea walls the Defendant pleads all the speciall matter by way of justification the Plaintiff demurrs to this Plea and upon the demurrer takes these exceptions to it 1. To the setting forth of the Commission in that he shews not that three of the Commissioners were of the quorum The 2d exception was that in his Plea he had not sâ—t forth the Authority of the Commissioners To that the Court answered it was not necessary 3ly That the Plea was but argumentative which makes it naught 4ly It appears that there are 800. Acres of Land which are in the hands of the King Tax which are not taxed as by law they ought and so the tax is unjust because by the not taxing of them a greater burden was laid upon the rest of the Land than of right ought to be and this the Court held a good exception and said that the Kings Lands are taxable by the Statute 5ly The Statute is not pleaded as it ought to be 6ly It doth not expresse that Whitley in whose occupation the Lands are that are taxed is the Assignee to Lynsee the owner of the Lands but he may be a meer stranger and so not taxable nor his beasts to be sold 7ly It is not set forth that he shewed his warrant before he distrained as he ought to do Distresse In this case the Court first said that one may distrain and sell the Cattel of the owner of the Land taxed or his Assignee for non payment thereof Sale but doubted whether a strangers Cattel might be distrained and sold Roll Iustice took these Exceptions to the Plea 1. Plea That the Plea did not set forth the limits of the Commission as it ought to do and was therefore ill 2ly He said the Plea ought to have shewed that three of the Commissioners were of the quorum 3ly That it did not appear by the Plea that the Lands taxed where the distresse was made are within the Level to be taxed by the Commissioners 4ly The Tax is of the Land of such an one and his Assignes and this is
Feme being a Feme Covert could have no Corn of her own for it was her Husbands Corn and so there could be no stealing of her Corn. But the Court answered that in common intendment the Corn is hers and her Husbands Corn though in legal construction it be not so and the Scandal is great although it appear that the words were spoken by a Feme covert Therefore let the plaintiff take his Iudgement except cause be shewn to the contrary Iudgement was given the same Term because the last words were held to be accumulative Mich. 24 Car. Banc. Reg. THe Clark of the Errors in the Common-pleas attended here upon a rule of this Court Clark of Court ought â—oâ— to move the Court. Whereupon one of the Clarks of the Court gave notice of it to the Court and prayed he might be heard But the Court answered that Councel ought to move it and not be The King against Doctor Trigg THe Court was moved for Doctor Trigg to estreate the Fine into the Exchequer which was set upon him by the Court upon his conviction upon an informaiton preferred against him upon the Statute for practising Physick in London without a licence from the College of Physicians For the estreating of a Fine Hales of Councel with the College of Physicians moves it may not be estreated for it is not necessary and here the Iudgement is not only for the King but it is tam pro rege quam pro c. Fine Estreat and so part of the Fine doth belong to the Subject and for that part the Prosecutor may have a privy Seal here to recover it Estreat but if it be estreated into the Exchequer be cannot there have it and so he shall lose his reward and therefore he desired the Fine might be respited But the Court answered we cannot respite the Kings part nor the other part for there is an execution out for the whole Fine which cannot be stayed Heyford against Hobson Mich. 24 Car. Banc. Reg. HEyford brought an Action of Trover and Conversion against Hobson in the Common-pleas for taking away and converting of divers of his Goods and Chattels particularly named Arrest of judgment in Trover and Conversion and had a verdict The Defendant moved in arrest of Iudgement that the Declaration was incertain for amongst other things the Plaintiff in his Declaration declares for the taking de duobus castoribus Anglice Hats whereas castor is not a proper word for a Hat 2ly de uno servitio argenteo Anglice one silver Salt and there is no such word for a Salt but there is another proper Latin word for it viz. salinarium 3ly De duobus catenis Anglice two silver Dishes which is no word for a Dish much less a silver Dish Roll Iustice said one may describe a thing in a Declaration Declaration if there be not a proper word to express it and if it be so described that the Iury may know what is meant by it it is well enough But let the Iudgement be here be stayed for we will advise Wood against Clemence Mich. 24 Car. Banc. Reg. THis Case formerly viz. this Term moved and spoken to touching the validity of an Award made touching the fraight of a Ship Exceptions to an award was again moved and Exceptions taken to the Award 1. That the award is repugnant in it self And 2ly It is not final and so not good The Court answered if the Award be ill as of your own shewing it is then you have no cause of Action Iudgement Submission and so you cannot have Iudgement although the Defendants bar be not good and a submission made by one for himself and another is good to bind the party that submitted But move it again and we will advise in the mean time Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible Entry after the party endicted had pleaded To quash an endictment of forcible entry and a verdict against him Roll Iustice We must not be so curious in the framing of Endictments as to quash them for every small fault and in this Case it was said by him that if one interrupt a long possession by force and the other regain it with undue means an Endictment lies not against him for this for this is but vim vi repellere and after a verdict and before Iudgement upon an Endictment of forcible entry Restitution the party ought not to move for restitution Banister against VVright Mich. 24 Car. Banc. Reg. IN a Tryal at the Bar between Banister and Wright in an Action upon the Statute of 2. Ed. 6. for not setting forth of Tithes Lands free from tithes It was said by the Court that Tithes which lye not within any Parish are due to the King and that Lands must be parcel of a Parish either by prescription or by Act of Parliament and that Lands lying within a Forest and in the hands of the King do not pay Tithes although they be within a Parish Tithes but if the Lands be dis aforested and be within a Parish they ought to pay Tithes for their not paying Tithes being in the hands of the King is but an immunity for that time only Mich. 24 Car. Banc. Reg. A Baker was presented in a Court Leet for selling Bread under weight Arrest of judgement in an action for a Fine set at a Court leet Fine Amercement Presentment and a Fine set upon him and an action brought against him for this Fine and a verdict given against him It was moved in arrest of Iudgement that the presentment upon which the Action was founded was not good and so there was no ground of Action and so there ought to be no Iudgment But Roll Iustice answered that the Action is for the Amercement which is a collateral thing and the presentment is not now to be called in question if it be only avoidable for some fault in it but it were otherwise if the presentment were utterly void But speak again to it at another time Mich. 24 Car. Banc. Reg. THe Court was moved for a Habeas Corpus for one committed at Norwitch for Treason in speaking words against the Queen For a Habeas corpus to remove a Prisoner committed for Treason Endictment Tryal because be could not be tryed there Roll Iustice answered he cannot be endicted here except the fact were done in Middlesex therefore advise with the Kings Councel and prefer a Bill of Endictment where the fact was and then you shall have a Writ ad delibrandum directed to the place where the fact was and this is at the Kings sute and the Sherif shall be allowed his charges upon his accompt or else the Iustices may try him by their Commission of oyer and terminer Smith and Hancock and others Mich. 24 Car. Banc. Reg. SMith brought an Action of Trespass against Hancock and others For a new tryal
is a new Bank or Wall ordered to be made and not the repairing the old and this is not within the Commission It was answered that the making of the new Bank is but to strengthen the old Bank and so is but a repairing of an old work and not the making of of a new 2ly The Wall is to be made by consent of all the Inhabitants interessed in the benefit which may accrue by the making of it As to the exception that it appeares not that Tyd and Newton are within the Hundred of Witsbitch touching which only this Commission of Sewers was granted It was answered that it shall be so intended and it is also so found To the exception that the new Bank was made in another manner than the old Bank and so it is a new work and it appears not that the parties taxed have any benefit by it It was answered that it doth not appear that the Drayners have done any thing for their own benefit in the making this Bank nor were any cause of making the new Bank To the exception that it is not presented where the Bank is It was answered it is certain enough set forth in the Presentment and Presentments are not required to be so precise as other pleadings are To the exception that Tyd and Newton ought not to make the Bank because other Towns use to do it It was answered that for making it in the new manner the other Vills are not bound to make it alone but those also that receive the benefit by it These exceptions following were also taken to the laying of the Tax 1. That all the Lands within the Vills of Newton and Tyd are not charged but so many Acres in one and so many in another To this it was answered that it doth not appear that there were more Acres than are taxed either in Tyd or Newton 2ly The high grounds and the low grounds are equally taxed which is not indifferent for some acres are of a greater value than others are To this it was answered that for ought that doth appear they are of an equal value 3ly They ought not to sell the distress taken because the Vills did not bring in the number of acres by the Officer appointed by the Commissioners to doe it It was answered that they may sell the goods or allow a Replevin And secondly here appears not to be any distress or impounding of the goods Serjeant Barnard on the other side First he said that all the exceptions are not opened and the first exception is not answered for it appears not by averment that the Vills taxed are within the extent of their Commission as it ought doe 2 H. 7. f. 13. Nor is the second Exception answered and although the Councel might at the finding of the Commission have taken it yet it may be taken now and it is not shewed how the old bank was insufficient nor what the charge would be to repair it Nor is it shewed how Tyd and Newton are in danger by the not repairing and making of the new bank Also the Commissioners have exceeded their authority in exceeding the antient manner of taxing for the maintenance of this bank and the tax ought to be laid according to the quality and quantity of the lands which are to be taxed and here doth not appear how many acres are in the several Vills nor whether the tax doe extend to all and the good land and bad lands are also equally taxed neither ought there to be a new tax imposed upon one Vill to ease another which by the custom ought to repair the bank And they have also made a new Officer here which by the Statute they have not authority and have made an order to punish one for refusing this Office by distress of his goods which ought not to be and they ought not to refuse a replevin of the distress taken as they have here done and the lands only that are lyable to the tax are to be distrained for it and not the goods of another that is not within the extent of the Commission and upon these exceptions he prayed the presentment might be quashed Roll chief Iustice answered we will not make all the law void for some exceptions therefore give notice upon what exceptions you will stand upon Maynard answered upon these 1. That there ought not to be such a tax laid because the lands taxed are not within the extent of the Commission for it appears not that they are within the Hundred of Wisbitch 2ly All the Inhabitants within all the Vills are not taxed which ought to be because they have equal benefit as it appears by the presentment The Court ordered it should be moved again the next term And Roll chief Iustice asked why the drainers should not discharge this charge who have been the cause of it and they receive benefit by their draining and it is not fit they should prejudice others by it Postea Pymm and Morgan alias Bambery and Basely Mich. 1649. Banc. sup THis case was again moved upon a special Verdict in an Ejectione firmae wherein the question was Argument upon a case upon a special verdict in an Ejectione firmae Whether the estate of Mary Morgan that was setled 13 Car. is taken away by the Ordinance of Parliament made 1645. and which looked back to 1641. which was after 13 Caroli It was held by the Councel that argued against the Ordinance that it was not because the Ordinance is made against a dead man 2ly The estate of Morgan was forfeited to the State and they out of it doe make an estate for Pymm with retrospection to the year 1641 and no further and therefore the estate setled before that time is not taken away And if a Statute have a double sence one against Common Iustice and the other with Common Iustice in equal ballance it shall be interpreted in the better sence and that that hath been objected that there is a power of revocation in the settlement is not material for Morgan is now dead and so this personal power is now gone and shall not hurt the settlement A second reason is taken from the scope of the Ordinance which consists of three parts 1. The Parliament injured 2ly Morgan the Offender punished 3ly Pymm rewarded and the Ordinance shall not be stretched to punish Mary who hath a particular interest although there be not an express saving for her in the Ordinance 21 H. 7.4 Plow Comment 487 7 Car. Porter and Bellingham and that this is the meaning of the Ordinance may appear because the remainder is reserved to the Common wealth and in doubtfull Constructions of Statutes and Ordinances that shall be taken Interpretation which makes all parts of the Ordinance or Statute stand together and such is the Construction here in not interrupting the estate of Mary But it is objected that the right of the Daughters is provided for if they claim from another Ancestor and
upon the Case and didst kill thy first wife The Error assigned was that it doth not appear in the Declaration that the Plaintif was maried before But the Court affirmed the judgement and said the Defendant hath confessed it by joyning issue non culp upon the words VVood against Topham Trin. 1650. Banc. sup THis case being an Action upon the Case quare filium suum cepit et abduxit Error to reverse a judgement in an Action on the Case et maritavit was again moved and the exception insisted upon was that the Plaintif doth not say Cujus maritagium ad ipsum pertiner But Roll chief Iustice said that it could not be otherwise intended but that the mariage belongs to him and it doth not appear that his Son was maried before and the value of the mariage is not here material for the mariage of his Son belongs unto him as a parent Mariage in regard of his protection and advice Ierman differed and said that if he were maried before he was then Pater Familias and is out of the protection of his Father Protection But Nicholas and Ask Iustices agreed with Roll and Roll said the matter here is not the loss of the mariage for that is but to increase the damages but the Action lies only quare cepit et abduxit Adjourned to be argued the next Term. Antea et Postea Oreswick against Armery Trin. 1650. Banc. sup Mich. 1649. rot 354. OReswick brought a writ of Error against Armery to reverse a judgement given against him in Bristow Error to reverse a judgement in an Action of Debt Debt Custom in an action of debt upon a Concessit solvere according to the custom of the City but the Iudgement was affirmed for the Court said an action of debt will lie by a custom upon a Concessit solvere but not if it be brought against an Executor Custodes Libertat c. against Valconbridge Trin. 1650. Banc. sup THe Court was moved to quash an Endictment of Assault and Battery To quash an Endictment of Assault and Battery The Exception was that the Endictment was taken before the Iustices of Assize and Gaol delivery and Oyer and Terminer and so it doth not appear by vertue of what Commission it was taken Roll chief Iustice He ought to shew by virtue of what Commission particularly it was taken and therefore let it be quashed and a fine of 40 s. set upon the Clark of the Assizes for his negligence Fine Bowles against Clark Trin. 1650. Banc. sup IT was she wed for cause upon a rule of Court why a Prohibition should not be granted to the Prerogative Court Why a Prohibition should not be granted to the Prerogative That in the will which the Prerogative Court endeavoured to repeal there were lands given to the Executor The Court answered If the Prerogative have power to prove a will they may also repeal it by appeal but if lands be devised together with goods they have no power to repeal it as to the lands but if they should have no power to repeal it as to the goods it would be mischievous But they have no authority to make the devise good or ill as to the lands Prohibition And the Court was at first agreed to grant a Prohibition as to the lands only But afterwards the Court held that there could be no such division made of the will by Prohibition as to stand good in part and to be repealed for the rest and so would not grant the prohibition Nota. Keniston against Crouch Trin. 1650. Banc. sup THe Court was moved that upon a Judgement given in the Common Pleas For a rule to enter judgement in the Common Pleas denied since the Act that a writ of Error shall be no supersedeas a writ of Error was brought in this Court and the record removed but that depends undetermined and that the party had moved for execution in the Common Pleas but the Clarks refuse to make out execution without the rule of this Court Rule and therefore a rule was prayed to them to make out execution But the Court answered procéed as the Act directs we will make no rule But we conceive there is no writ of Error now depending and therefore you may take out execution of Course Q. Tamen Execution for it was doubted at the Bar. Denton against Harison Trin. 1650. Banc. sup DEnton brought an Action upon the Case against Harison in London For a Procedendo to London for speaking these words Thou art a Whore and my Husbands Whore and he doth maintain thee The Defendant removed the cause into this Court by a Habeas Corpus whereupon the Plaintif moved for a procedendo Roll chief Iustice was of opinion that a procedendo ought to be granted for if it should not the party hath no remedy to proceed and if they do proceed in London and the judgement he thereupon erronious the party grieved may bring a writ of Error in the Hustinges and reverse it Ierman Iustice said here is a wrong done and the remedy is given according to the custom of the City and it is a good custom Custom because it is for the preservation of the Peace of the City and it is the custom of the City to whip a Whoremonger and to Cart a Whore and this may be the ground or reason why an action lies in London for calling of a woman whore there thought it doe not lie in other places Trin. 1650. Banc. sup VPon an Issue joyned and a Tryal thereupon That Iudgement might not be entred a Verdict was found for the Plaintif and the Postea was delivered to the Clark of the judgements to enter the judgement but through the Clarks neglect execution was taken out the Iudgement being not entred upon this the Court was moved that the Iudgement might not be entred Iudgement because it should have béen entred before Execution issued forth and therefore it was suggested that now it was too late and prayed to supersede the Execution Supersedeas because there was no judgement to warrant it But Roll the Chief Iustice answered that this being but a neglect of the Clark judgement might be well enough entred though the Execution were issued forth and because the tryal betwéen the parties is right therefore let it be entred Cane against Pell Trin. 1650. Banc. sup CAne brought an Action of Debt upon the Statute of 2 Ed. 6. for substraction of tithes against Pell and hath a verdict against the Defendant Arrest of Iudgement in an action upon the Statute for tithes The Defendant moved in Arrest of Iudgement and took an Exception to the Plaintifs Declaration That it did not appear by it in what Parish the lands lie out of which the tithes grew due On the other side it was said 〈◊〉 appeared well enough by implication but if it did not it is not now material there being a
verdict in the case by which it is helped Ierman Iustice said there is only an implication to shew in what Parish the lands lie and that is not a violent implication neither and therefore the Declaration cannot be good But Roll Chief Iustice answered What if the Plaintif had only said that the tithes belonged unto him And it is here after a verdict and the Declaration is helped by it Declaration but if you had demurred to the Declaration it would have been ruled to be naught Demurrer And if the tithes do belong to the Plaintif why may it not be implyed that they belong to him as Parson of the Parish and are of lands lying within the Parish But let us see a Book and speak to it again the next Term. Robinson against VValker Trin. 1650. Banc. sup Pasc 1650. rot 251. WAlker brought an Action upon the Case upon an indebitatus Assumpsit for wares sold Demurrer for doubleness in a replication The Defendant pleaded the Statute of limitations of Actions in Bar. The Plaintif replyed that he is a Merchant and was in Ireland and did not return thence till such a time and shews precisely when and that within six years after his return he brought this action Vpon this Replication The Defendant demurred and upon the Demurrer Iudgement was given for the Plaintif The Defendant brought a writ of Error to reverse this Iudgement and assigned for Error 1. That the replication of the Plaintif upon which the Demurrer was joyned is double For first he allegeth that he is a Merchant so is a person out of the Statute of limitations And secondly he shews that he brought his Action within 6 years after his return which is needless 2ly He saith That he did not return into England whereas the Statute is general If he return and he may return into Wales But to that the Court answered that to return into England or into Wales was all one as to the intent of the Statute 3ly The Action was an Action upon the Case that Action is not mentioned in the Statute But Roll chief Iustice said this is no new Case for it hath been ruled that an Action upon the Case is within the Statute Case Ierman Iustice said the Proviso of the Statute is intended to be as large as the body of the Act. Nicholas Iustice to the same effect and said that the word Trespass mentioned in the Act doth comprise in it an Action upon the Case The Iudgement was affirmed nisi Trin. 1650. Banc. sup AN Endictment was quashed To quash an Endictment because it was said to be taken ad generalem Sessionem Pacis Custodum libertatis Angliae where it ought to be Sessionem Pacis publicae by Ierman Iustice absente Roll. Treton against Squire Trin. 1650. Banc. sup THe Court was moved that a Prisoner in the Marshalsea might have liberty by rule of Court to be at a tryal to give his testimony as a Witness in the cause To have a Prisoner to testifie at a Trial. Ierman Iustice absente Roll answered Bring him thither by a Habeas Corpus but take a good guard with him for it shall be at your peril if he escape Habeas Corpus and he shall be brought thither and carried back again at your own charge Gibs against Price Trin. 1650. Banc. sup GIbs a Barrester of Lincolns Inne brought an action upon the case against Price for speaking these words of him Arrest of Iudgement in an Action for words William Gibs hath dealt falsely with me being his Clyent and hath joyned with mine Adversary Vpon not guilty pleaded there was an issue joyned and a Verdict given for the Plaintif The Defendant moved in Arrest of Iudgement that the words were not actionable But the Court held clearly the words were actionable and were ordering judgement to be entred for the Plaintif Case but because another exception was taken That the Plaintif doth not aver that he was a Practiser at the time of the bringing of his Action Averment and because it was also objected that the Plaintif was now sequestred Therefore the rule was that the Record or the Postea should be brought into the Court and that Councel should again be heard This was moved again And Roll chief Iustice said That the Plaintif ought to aver he is a Practiser for he may be a Barrester and not practise But the Court would advise Boomer against Cleve Trin. 1650. Banc. sup IN this Case in Arrest of Iudgement upon a verdict given for the Plaintif in an Action upon the Stat. of Winch. 12 E. 1. of Hue Cryes Arrest of Iudgement in an Action upon the Statute of 12 E. â— of Hue and Cries Recital the question being whether the Plaintif in his Declaration had mis-recited the Statute or not Roll chief Iustice took this difference that if one bring an Action upon a Statute and in his Declaration mis-recite it in words which go to the ground of the Action though there be a Verdict in the case yet it is not helped but if the mis-recital be in words which doe not goe to the ground of the Action it is helped after Verdict by the Statute of Ieofails Ieofails Bynion against Trotter Mich. 1650. Banc. sup BYnion brought an Action upon the Case against Trotter for speaking these words of him Arrest of Iudgement in an Action for words He is a Thief and hath stollen my Turnips and my grass Vpon a Verdict given for the Plaintif The Defendant moved in Arrest of Iudgement that the words are not actionable because the grass might be growing upon the ground and the Turnips in the ground Case and so part of the Freehold But Roll chief Iustice held the words are actionable for the Turnips shall be intended to be pulled up and the Grass mowed the last words are not cumulative Therefore let the Defendant shew cause why the Plaintif shall not have his Iudgement Pinder against Dawkes Mich. 1650. Banc. sup PInder brought an Action of Trespass against Dawkes Error to reverse a Iudgement in Trespass quare clausum fregit and declares quare clausum fregit contra pacem publicam et postes et palos suos ibidem nuper inventos cepit et asportavit The Plaintif hath a Verdict and a judgement the Defendant brings a writ of Error to reverse the judgement and assigns for Error 1. That the Trespass was done in the late Kings time and therefore the Declaration should have been contra pacem Domini Regis and not publicam 2ly That the Declaration is incertain for it appears not whether the Posts and Pales were fixed to the ground or no nor how many of them there were and so the nature of the offence cannot be certainly known But the Court held that the first exception was but a mistake of the Clark and so may be amended and as it is there is no repugnancy in it
the judgement so in this Action Iudgement for by this course the Plaintif shall gain his possession of the land and the Defendant cannot bring his writ of Error until the writ of Enquiry returned and the Iudgement perfected Error which it may be will never be for when the Plaintif hath gotten possession of the lands he will little regard the damages Therefore let the judgement be reversed Antea Elyott against Blague Trin. 1651. Banc. sup ELyott brought an Action upon the Case against Blague for speaking these words of him viz. Thou art a Bastard getting Rogue Arrest of Iudgement in an Act on for words and hadst a Bastard at Oxford and art a pocky rogue and for ought I know thou hast filled my Bed full of the French pox and no such pocky rogues shall lie with me Vpon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words were not actionable because some of them were adjectively spoken and others uncertain and some of them clearly not actionable But Twisden answered that if the words were taken together as they were spoken they were very scandalous and actionable and cited one Colyers and Lydyers case 1 Can To which the Court agreed and ruled the Plaintif to take his judgement except better cause should be shewn Custodes against Iinkes Trin. 1651 Banc. sup SErjeant Bernard moved to discharge an Order of Sessions made against a Feme Covert to keep a Grand child of hers To discharge an Order of Sessions Order of Sessions because a Feme Covert was not bound by such an Order Roll chief Iustice answered that her Husband is bound to keep his wifes Grandchild by the Statute but in regard that the Husband is not charged by the Order but the wife who is covert is only charged Therefore let the Order be quashed Trotman against Standard Trin. 1651. Banc. sup Trin. 1650. rot 1768. IN an Action upon the case a special verdict was found Special verdict in an action on the case upon which the case fell out to be this Two being seised of lands in Fée did make a charter of feoffment unto two others and to their heirs and in the deed was a letter of Attorney to enter into the lands in the name of the seoffors and make livery and seisin according to the effect of the deed and livery of seisin was made to one of the Feoffees by the Attorney in the absence of the other Feoffee The question was whether here were a good livery and seisin or not 2ly Whether the letter of Attorney was good or no in regard it had false latin in it for the letter of Attorney was made by two and the words of it are pro me in nomine meo to make livery which are words of the singular number whereas they ought to be of the plurall Hales as to the 2d question held the letter of Attorney good enough because the authority given to the Attorney proceeds from both the Feoffors and therefore the words shall be intended to be the words of both of them as spoken by them severally And he also argued that the letter of Attorney was well executed to both the Feoffees because it was by deed and he cited 15 E. 4 f. 18. and he said if the livery had been made by the Feoffor himself it had been good without question and there is no difference between that and our case because it is made according to the effect of the deed and the Feoffee who is present is Attorney for the Feoffee that is absent to receive livery for him and the effect of the letter of Attorney is executed although the words are not Cooks Lit. f. 5. and Hoxon and Polts case in the Exchequer 34 Eliz. Boltons case Livery made to the husband was held a good Livery to the wife also Latch of Councel on the other side made two questions 1. Whether here was a good authority 2ly Whether it was well executed For the first he argued that here was no authority given to the Attorney to enter into the lands in the name of both the Feoffors for the words are that he should enter in nomine meo which cannot comprehend both of them the words being in the singular number and he agreed that Livery made by the Feoffor himself to one in the name of both had been good but here the livery is by Attorney and an Attorney hath nothing but a bare authority given him which ought to be strictly pursued especially it being to passe away an Estate He also took exceptions to the special verdict and said that the tryal upon which the verdict was found was directed out of the Chancery to discover a fraud and the verdict finds nothing according to the direction and so it ought to be set a side besides the verdict in it self is incertain for it is of 300 Acres of land generally which is incertain and so the Plaintiff can have no Iudgement for the Declaration warrants not the verdict for the Declaration mentions Houses and Cottages besides the 300 Acres of land 2ly The verdict doth not find the date of the Indenture and the Title to the land is to commence a die datus Hales answered 1. It shall be intended the day of the date 2ly It shall take effect after the delivery if there be no day of the date expressed And to that exception to the verdict that there are not so many Acres conteined in it as are expressed in the Declaration he answered that the Iudgement shall go to all which is land in kind only and shall not extend to Houses and Cottages and there appears to be a residuum or surplusage Verdict Roll chief Iustice said that it is incertain by the verdict what lands are meant for there are 400 Acres of land and four messuages and four Cottages and 40 Acres of medow in the Declaration and so there appears to be a residuum besides the land found in the verdict which makes it to be incertain what is found And though it should be a verdict for part and be uncertain for the rest although the Plaintiff will relinquish his damages for the rest this will not help it for there must be two Iudgements and the verdict is ill as to that which is found yet he held that it might be good without relinquishing the damages at all because the verdict is good for so many Acres as are in the Declaration and it shall be intended that the Iury mistook the number of the Acres and intended by the verdict no more than the arrable land Ierman and Nicholas Iustices doubted whether there be a verdict at all because the Iury have not found the things conteyned in the Declaration Roll chief Iustice and Nicholas mutate opinione held the verdict good but said it would have béen otherwise upon a demurrer and it was said that if one declare for 40 l. and the
a Legacie and it may be there are debts owing which are to be paid before Legacies and here doth not appear to be any assets in the Executors hands besides this debt and if the Testator would have released it he ought to have done it by a deed Roll chief Iustice What shall the Executor do in this case I conceive it is a strong case for the Executor and that it is very unreasonable that the Testator should make such a devise and here is no consent of Mary the Executor expressed to this release besides a will cannot release a thing created by deed and so discharge Creditors Nicholas and Ask Iustices concurred But Ierman Iustice doubted For a fault in the writ of Error and imperfection in the record certifyed the Iudgment was not then affirmed Afterward Sir Humphrey Style preferred his bill in Chancery to be releived herein and obteyned an injunction till hearing but upon a hearing at the Rolls could get no relief but was ordered to pay 100 l. or else the injunction to be dissolved Q. Nota. Hamond against Ward Trin. 1651. Banc. sup Pasc 1650. rot 58. AN Action of debt was brought against the Defendant Error to reverse a judgment in debt upon an insimul computaverunt upon an insimul Computaverunt and a verdict and a Iudgement given against him whereupon he brought his writ of Error and assigns for Error that the Action was brought against him for rent as a Tenant of land and not as a receiver and that therefore an accompt did not lye Roll chief Iustice cited 20 H. 6. that rent alone lyes not in accompt because rent is a certain thing and it is also in the realty but if rent be mixed with other things an accompt will lye Accompt but here it appears the Action is brought against the Defendant as a receiver and if one receive mony due to me upon an obligation I shall have either an Action of accompt Debt or an Action of debt against him so if he receive my rents without my consent Therefore let the Iudgement be affirmed Alleyn against Holden Trin. 1651. Banc. sup Entred Pasc 1650. AN Action of debt was brought against an Heir who pleads riens per discent Error to reverse a judgment in debt against an Heir Iudgment was given against him upon a nihil dicit a writ of enquiry was awarded without the prayer of the party and a special Iudgement thereupon given against the Defendant Vpon a writ of Error brought to reverse this Iudgement it was alleaged for Error that the Iudgement ought to have been a general Iudgement and there ought not to have been a writ of enquiry except the party had prayed it and to this the Court enclined and Roll chief Iustice said that it is otherwise in an Action against an Executor for there assets may be found At another day Roll chief Iustice said Writ of inquiry if the Heir plead riens per discent and if it be a false plea a general Iudgement ought to be against him and there shall be no writ to enquire what lands he hath and it is not necessary as here it is to have a special Iudgement Iudgement that the Plaintiff shall recover of the lands discended for the Iudgement ought to be that the Defendants body and goods be lyable and half his lands and not as it is here a writ to enquire and find what lands he hath by discent Reverset nisi Barcock against Tompson Trin. 1651. Banc. sup THis case was again spoken unto Error brought by the Bail to verse a judgment given against the principal which was this A Iudgement was given in the Comon pleas against the principal without an original upon this Iudgment there issued out a scire facias against the Bail two nichils returned and thereupon Iudgment was given against the Bail a writ of Error was brought by the Bail to reverse this Iudgment And it was now argued by Hales of Councel for the writ of Error that the Iudgment was erroneous because it being given upon a scire facias which is a judicial writ it ought to be grounded upon an original and it not being so here it is Error in fact although it be not Error in Law To this it was answered that two nichils returned upon a scire facias amount to a scire seci and a judgment given thereupon is good and therefore it is too late now to say that the scire facias was not well executed Brook Sc. fac 96. 28. 17 Car. C. B. To this Hales said there was a Iudgement against us in the Common pleas so that we could urge nothing against the scire facias there but here we may Roll chief Iustice answered it is to some purpose to make up the record upon the two nichils otherwise there would be no end of things and the Iudgement is well given by the Iudges and how can you now make Error in it Iudgement and if you be inconvenienced by the Iudgement you are not without remedy Error for you may bring an Audita querela and you might have pleaded to the scire facias nul tief record for it is not matter of fact And therefore shew better matter why the Iudgement shall not be affirmed Audita querela and take liberty to bring an Audita querela Antea Tucker against Cosh Trin. 1651 Banc. sup Entred Trin. 1650. rot 388. TVcker brought a replevin against Cosh Special verdict in a replevin for distreining his Cattel The Defendant makes conusance as Baily to I. S. and upon the Avowry the case fell out to be this A tradesman in consideration of mariage made a conveyance of his lands to the use of himself and of his wife and afterwards becomes a Banckrupt and a commission of Bankrupt is taken out against him and the lands of the Bankrupt are sold by the Commissioners to the avowant that took the distress The question here was whether this conveyance made by the Bankrupt of his lands was within the Statute of fraudulent conveyances or not and the sale made by the Commissioners of this land were good Maynard for the Plaintif argued that it is not within any of the Statutes of Bankrupts The Déed here is without fraud and so it is not within the Statute for a valuable consideration is only expressed in the Statute and not a conveyance upon consideration of mariage as it was in our case 2ly The Feme is but one person with her Husband 3ly By comparing the Statutes together it appears that the wife is not comprised within the Statute of 1 Iacobi which looks back to other Statutes touching Bankrupts for the wife is not named in the Statute of 1 Iacobi but only children and other persons otherwise the words of the Act which do enumerate children and other persons would be frivolous and idle Roll chief Iustice said the Case is of great consequence and
Crisp and Prats case doth somewhat resemble this Bankrupt The Law intends a Bankrupt which is so by fraud as well as a Bankrupt who becomes so by accident and for this cause is he called an Offender in the Statute and here the year of our Lord 1637 is the 13 year of the late King the recovery suffered by the Bankrupt was then and within half a year after the recovery he became a Bankrupt so that me thinks there plainly appears to be fraud in the Conveyance Fraud but the fraud is not expressed in the pleading as it might have been The Statute of 1 Iac. is somewhat doubtfull as I conceive and I do not sée any provision made in it against the wife if fraud do not appear for here is no valuable consideration mentioned Nicholas justice said it is doubtfull yet he conceived it within the Statute of 1 Iac. which ought to receive a large construction because it was made for the good of the Commonwealth Ierman and Ask agreed with Roll in omnibus Roll Here the matter in dispute is not in a special Verdict but comes in question upon point of pleading Pleading which shall be taken most strong against him that pleads it and he hath not expressed any valuable consideration as he might have done by saying in consideration of a portion or in recompence of mariage or in performance of Articles made upon mariage or that the wife had joyned in selling some part of the land The Court would advise but enclined judgement ought to be for the Avowant Afterwards judgement was given accordingly for the Court held the wife was within the Statute of 1 Iac. and the providing for wife and children to be providing for himself Chapman against Brook Trin. 1651. Banc. sup Trin. 1650. rot 200. IN an Action upon the Case the Plaintif declared upon a Custom of commoning in such a place The Defendant demurred to the Declaration Demurrer to a Declaration in an Action on the Case and for cause shews that the Custom was not well laid for the Plaintif declares of a Custom of commoning pro averiis viz. pro equis bobus equabus et pullis and the word pullis is of an uncertain signification for it may signifie a Calf a Lamb or any other young Beast or Foul and 23 Car. Segar and Dyers Case was cited The Court held the exception good and said that it is incertain what is meant by the word pullus and said that if the prescripsion had been pro omnibus averiis it had been good Prescription and the viz. should have been void but here it is only pro averiis Therefore nil capiat per billam Newton against Godard Trin. 1651. Banc. sup A Writ of Error was brought to reverse a judgement given in an Action of Debt at Ipswitch Error to reverse a judgement in debt The Case was this There issued out a Capias against the Principal and a judgement was given against him and after a scire facias issued out against the Bail and a judgement thereupon was given against the Bail Then the Plaintif takes out an Execution viz. a fieri facias against the Principal and Bail upon both the judgements to levy the debt recovered upon the goods and chattels of the Principal and Bail or either of them It was alleged that the execution thus taken out was not good for there ought to have been several executions upon the several judgements Execution and not one execution and to this the Court agreed and ordered the Defendant in the writ of Error to shew cause why the judgement should not be reversed In this Case Roll chief Iustice took an exception to the scire facias Abreviation because it was scire fac with a dash which might be as well scire faciatis as scire facias Spittlehouse against Farmery Trin. 1651. Banc. sup Hill 1650. rot 43. AN Action of accompt was brought against a Feme Covert an Administratrix and her Husband in the Common Pleas Error to reverse a judgment â— ven in an Action of Accompt and judgement given against the Defendants quod computent The Feme dies and the Husband brings a writ of Error in this Court to reverse this Iudgement Roll chief Iustice held that the writ of Error did not lie because the Record cannot be removed by it for that would disturb the proceedings in the Common Pleas and the party would have no fruit of his sute if the Record should be removed nor any remedy to recover the arrears due unto him Original Scire facias Yet the Original is determined by the Iudgement given quod computent and a scire facias lies by the Executor as the case here is Ierman Iustice to the same effect and cited 1 H. 7. f. 2. Nicholas Iustice to the same intent and said he did not much regard the Book of 21 Ed. 3. because there are other Books against it Ask Iustice ad idem Roll chief Iustice put these cases A judgement was given in Dower for the Demandant and another judgement that she shall recover her damages and this second judgement for the damages was reversed by a writ of Error because she did not aver that her Husband died seised in which case she is to have no damages Iudgement yet the first judgement for the Dower stood unreversed and Hill 43 Eliz. C. B. in one Williams and Whites case in an â—â—ction of Accompt 2 judgements were given and the second wâ—s reversed and the first stood unreversed In the principle case the rule was judicium nisi VVallis against Bucknal Trin. 1651. Banc. sup Trin. 1649. rot 600. VPon a special Verdict the case fell out to be this Sâ—ecâ—al verdict upon a Custom of a Manor One selfe d of Copy-hold lands of inhâ—ritance made a Letter of Attorney unto two joyntly and severally to surrender the lands after his death to certain uses according to the Custom of the Manor The question was whether this was a good Custom or no. Ellis of Councel with the Plaintif argued that it was not a good Custom because a Custom ought to be reasonable but this Custom is unreasonable because it is not only against a particular Law but it is against the general rule of Law to pass estates of inheritance in such a Manor and although particular Customs may be against publique interest pro boâ—o publico yet this is nothing to our case for this is not for the publique good and therefore it is not good 2ly An authority ought to be countermandable and to determine by the death of the party that gives the authority but here it is not so but it is to continue after his death Next no man can give authority to another to do a thing which he himself could not do but here it is otherwise and therefore it is not good Also by the death of the Copyholder the Law settles the lands in the
and that by the Will the Land and personal Estate passed unto him for he said if by my Will I make one my Heir This is a devise to him of all my Lands in Fee for the Devisee is put in loco haeredis and shall be like an Heir by descent for he is haeres factus although he be not haeres natus Mich. 31 32 Eliz. rot 235 Godfreys Reports Hob. rep f. 34. b. Coundens case Hob. new edition 75. Spark against Burrell the very case in point adjudged 7 E. 6. Br. Done 44. and Devise 48. and in this Case the Devisee had annuities to pay and monies for Legacies which shews the intent of the Testator to be that he shall have his Lands and Goods neither shall the misspelling of the word Heir hurt the Will for the intent of the Testator shall be followed if it may be known as it may well be here Hob. f. 32.15 H. 7. f. 12. Cooks Lit. f. 323. Dyer 325. 2ly Misnaming in a Will shall not hurt the Will Dyer 323.21 Rich. 2. Fitzh devise 27.10 rep 57. 3ly False Latin shall not destroy deeds nor pleadings though it will abate writs a fortiori false English shall not destroy a Will 9 H. 7.16.10 rep Osborns case Hob. 227.10 rep 133. a. 9. H. 6.7 a. and here is only vitium scriptoriâ— and that cannot destroy a Will Hob. f. 162. Walkers case f. 104 104.9 rep 48. a. Dyer 17 Eliz. f. 342. Digbyes case Another reason is the word Heir is here written according to the pronunciation and sound of the word though it agree not in letters and H. that is left out is no letter but an asperte note and the language in England as it differs in time so it differs in place for men speak not nor write English in all parts of England alike and a Will in latin or greek is a good Will within the Statute so that it is not necessary for a Will to be good English and the Testator was bred in France and could neither write nor speak good English and his Will so much the rather is to be favoured And false English hath been allowed in a Bond viz. senteen for seventeen pounds 9. rep 48. a. much more may it be in a Will and so he prayed Iudgement for the Plaintiff Latch for the Defendant argued that the Will was not good he considered 2. points 1. When a man makes one his solle Ayeare and Yexecutor what construction the words shall have 2ly What Estate is conveyed by them And first he said that Hoberts Case cited by Powis was not to the purpose 1. Because it is not the principal case And 2ly It is but an opinion there and an Heir may be without land And for Counden and Clarks case that was cited as it was urged it is for me and not against me and there can be no authority cited that if one make a man his Heir that his lands are thereby conveyed to him in Fee simple But in our case there can be no certain intent of the Testator found out and the making of one his Heir in France where the Testator was bred according to the Civil Law there used is but to make him his Executor and so the Testator might mean it And if one in his Will say I make one of my Daughters my Heir and do not say of his Lands this shall not disinherit the other Daughters and if there should be any Estate conveyed here it cannot be but an Estate for life Brook Done 44.8 Jac. C. B. Inkersalls case 3ly The ill orthogrophy here makes the Will naught for a Will cannot be made good by conjectures Hob. 34. Mich. 23 Car. Robinsons case the Iudgement was reversed for writing the word Aeris insteed of aeris with a dipthongue Trin. 17 Car. C. B. rot 74. and in Skirret and Skinners case libis with a dash over put for libris was adjudged ill and in our case here are divers words miswritten And for the variation of our English dialect which is objected it is to no purpose because this will was lately made the dialect alters not in so short a time and the dialect of the County where the Will was made viz. Glocester Shire agrees not with the Will And Hill 6. Car. this Will came in dispute in the Court of wards and a decree there passed against the Will in this point The Court said the case is doubtful Will. because the Will doth not say I make him heir of my Land but generally my heir and Executor but the false writing hurts not a Will if the Testators mind may be found out Adjourned to be argued again Wood against Topham Mich. 1651 Banc. sup VVOod brought an Action of Trespasse upon the case quare filium baeredem rapuit et maritavit against Topham Arrest of judgement in an Action on the case upon not guilty pleaded and a verdidict found for the Plaintiff the Defendant moved in arrest of Iudgement and takes these exceptions to the Declaration 1. That the Plaintiff doth not say cujus maritagium ad ipsum pertinet 2ly That he doth not say that the Heir was within age and Maynard of Councel with the Defendant said that the exceptions are not to the writ but to the Declaration and the Action being a Trespasse to recover the Damages the Plaintiff ought to entitle himself to the mariage for the losse whereof he would recover damages for the Heir it may be is not Heir apparent to him and then is no mariage due to him and here is a special Declaration for the losse of the mariage Roll chief Iustice answered Writs Declaration the writs are good both wayes and so may the Declaration be either with those words or without them and he makes not the ground of his Action to be that the mariage belonged to him Common right but of Common right it doth belong to him and the words are used to be alleged only to increase the Damages and the ground of the Declaration is only quare filium suum haeredem rapuit and for this the Plaintiff ought to have his Iudgement Ierman Iustice differed and said the Plaintiff doth not shew he had any damage by the mariage it may be that he had been maryed before or was of full age so no cause of Action Nicholas Iustice as Roll and said that by the Law the mariage belongs to the Father and it may prove a dishonour to the family to have his son taken away and maryed without the Fathers consent Ask Iustice to the â—ams effect and so Iudgement was given for the Plaintiff nisi Antea Mich. 1651. Banc. sup THe Court was moved to mitigate fines Motion to mitigate fines for riots that were to be set upon rioters that were found guilty upon an information exhibited against them for the riotous cutting down of wood But Wild on the other side prayed there might be good fines set
the Arbitrators have all of it to agree in and till it is ended the Vmpire hath no power at all otherwise the submission would be repugnant in it self The rest of the Iudges concurred in all and so ruled That the Plaintif all capiat per billam nisi Theoballs against Newton Mich. 1651. Banc. sup ONe was sued upon the Statute of Inmates and the distringas jurata bare date on a Sunday and out of Term and so is erronious The question here was whether it be not helped by the Statutes of Ieofails of 18 Eliz. and 21 Iac. Roll chief Iustice held Ieofails that the Statutes extend not to penal Laws although it be ambiguously penned nor to any processes grounded upon them for the Proviso exempts the Original action and by consequence all processes depending upon it are excepted Venire de novo so that here is no good tryal but there shall be a venire de novo nisi Tayler and Webb Mich. 1651. Banc. sup THe Case of Tayler and Webb which arose upon a special verdict upon these words of Will Special Verdict upon the words of a Will viz. I make my Cosen Giles Bridges my soll ayere and yexecutor was again moved and argued by Hales and he made three questions 1. Whether any estate passeth by the words of the will 2ly If any what estate passeth 3ly Whether the false Orthography doth hurt the Will For the first he said that by making one his sole heir his land passeth to him The word heir is to be considered either in relation to an Ancestor and so one cannot make one his heir or it may be considered in relation to a thing to be inherited to wit lands or tenements and so one may make another his heir and thus a Custom may make one a mans heir as it is in Borough English and an accident may thus also make one a mans heir as it is in the Case of possessio fratris Coundens case Hob. Rep. Case 947. And here it is all one to make one his heir and to make hint heir of hislands and the reasons are First the word heir here cannot have any other relation than to the Testators lands for he cannot make him his heir otherwise and the words may be more reasonably intended so 2ly The words carry in them the plain intention of the Devisor that the party should have his lands although the words are not very proper â— H. 7. A devise of lands to his son after the death of his wife passed an Estate for life to the wife although no such Estate was expressed in the Will so here although no expresse Estate of land be devised yet the Devisee shall have the lands by the intent of the Devisor 3ly In ordinary speech if one make such an one his Heir it is intended that he gives him his lands 8 Car. in the C. B. in Spurt and Bents case A devise of his inheritance was held a devise of his lands and Trin. 3. Iac. in Terryes case A devise of all his rents in tayl passed his lands because in vulgar acceptance it is the rents of lands and in Pits and Sands case in this Court A devise of all his free lands in Holford did passe a portion of Tithes and in the case of one Iohnson a devise of all his estate passed all his lands And the words cannot bear the fence to make him Executor according to the Civill Law as hath been objected for the Will shall be intended as it is to be an English mans Will and so the word Heir in it shall he interpreted according to out Law and not the Civill Law and even in the Civill law to make one his Heir doth convey unto him all his lands for he is haeres testamentarius although not haeres legitimus And in this Will here are two expressions for the party is made Heir and Executor which two words cannot signifie one thing for that would be an idle expression 4ly There are some clauses in the Will which shew the intent of the Testator was to convey his lands if it were needful to make use of them 1. There are several annuities for the Devisee to pay 2ly He directs him where the conveyances and assurances of his lands were laid up which plainly shew he meant he should have his land 3ly The words Heir and Executor are joyned together to shew that he gives him all his lands and goods else one of the words must be imperfect and ineffectual which shall not be intended For Authority 7 E. 6. Br. devise 38. by devising that one Son shall be Heir to the other it shall be intended of lands so in construction of law it shall be here intended that the Devisor made him Heir of his lands Hob. Reports in Sparkes and Burnells case William and Anthony shall be each others Heir and it is not said of land yet adjudged that it shall be so meant and so is it in our case and if I have lands in see simple and make one my heir it shall be intended that he shall have my lands in see simple although I say not that I make him Heir of my lands For the second question the reasons before expressed do also shew that the lands are passed in Fee as it is in Purnells and Hambletons case for the word Heir shall relate to the same Estate that the party had in the land who makes the other his Heir 8 Iac. Inkersals case For the 3d point whether here shall be any good devise at all by reason of the false English he said it was all one and to as good effect as if the words were all true English and neither the incongruity nor the insufficiency of the words shall hurt the Will as it is pretended For 1. This is not in case of pleading or of writs but in conveyance of lands It is true that in the former it doth hurt because writs and pleadings may be amended if they be naught but it is fatal in conveyances for they cannot be amended as in Trotman and Standards case Trin. 1651. in this Court it was held that impropriety of words shall not hurt it they can admit of a good construction Desinet in piscem mulier formosa superne 2ly This is in a Will which is such an instrument that is much favoured in Law and therefore to be favourably construed 3ly This is an English Will and admits of much variety of dialects and therefore is not to be critically interpreted Neither are there here any insignificant or missignificant words as hath been objected but significant for the sound of the word as it is written is the same as if it had been rightly spelled for Ayer and Heir sound both alike As in 3 H. 4. f. 4 Baxter and Baxster sounded alike 2ly If the word Heir might receive any other sence yet it cannot do so here because there are other words joyned to it to declare and signifie that the
and so the stile implies common by intendment The Court advised till the next Term. This Case was afterwards moved by Latch who said That here is no variance between the Writ and the Record although the Writ be not so full as it might have been to describe the Record and it is agreeable to the antient and usual practice at this day and cited the old book of Entryes 171 and said that in Paytons case the Record was in Curia Domini Regis Civitatis and the writ of Error was in Curia Civitatis Glocestriae Mich. 23 Car. Banc. Reg. rot 569. and all Courts of Record are originally the Kings Hales on the other side said that the writ of Error ought to shew whose the Court is and the rather because it is said to be Curia Manerii Wadham Windham The Register is both ways and by direction of Parliament the Common Pleas is stiled Curia de Communi Banco But here the Record appears to be Custodum c. Civitatis and the Writ doth not mention that The Court would advise oâ— the Presidents This case was again moved and Lodge and Woodhalls case 22 Car. urged that the Return of the Certiorari upon the writ of Error was not good for the variance formerly alleged but Wadham Windham held it good enough and relyed upon Presidents shewed to Hern the Secondary as the Court had directed Hales on the other side urged that the variance made it not good for it cannot be intended the same Court Roll chief Iustice here is no diâ—â— opposition between them for they may both stand together and the writ of Error intends it to be a Court of Record and yet it is the Court of the Manor also and therefore it is good in substance De facto it is the Court of the Lord of the Mannor but virtually and in dignity it is the Court of the King but the Venire is clearly vitious and therefore let the Iudgement be reversed for that cause Jervis and Lucas Mich. 1652. Bane sup THe Court was moved for one Iervis Motion for the Court to view a wound to encrease damages that the Court might view his wound and increase the damages given him by the Iury because they had given him but twelve pence damages for his wounding whereas the parties Arm was broken and he was in great danger still to lose the use of it But Roll chief Iustice answered it appears not by his Declaration what manner of wounding it was he received as it ought to have been and how can we know how he was wounded But we will advise and hear Councel on both sides At another day Serjeant Parker moved the same matter again and cited 3 H. 4. f. 4. and 18 H. 4. f. 23. and Dyer to prove the Court might increase the damages Twisden answered That the wounding ought to have been particularly expressed in the Declaration that the Court might judge of it by the Record and the party is not to be viewed by the Court upon the bare averment of the party made at the Bar. View To which Roll chief Iustice agreed and said how can it appear to us that he was wounded so as you aver by this Battery for it may be he was wounded since your action neither can you now discontinue the Action because it is after a verdict Discontinuance so that you are now without remedy Mich. 1652. Banc. sup THe Court was moved for a prohibition to the Prerogative Court Motion for a Prohibition to the Prerogative Court because they do proceed to examine witnesses there to disprove a will that was proved there 20 years since by which Will lands were devised and the lands are sold and this they do to prevent a tryal at Law touching the title of the land directed out of the Chancery Roll chief Iustice answered they may examine the probate there for you have libelled there to take benefit of the probate and therefore the other party may disprove the probate if he can as far as concerns any goods devised by the will And therefore we will grant no prohibition Mich. 1652. Banc. sup THe Court was moved for the Parishioners and Officers of the Parish of Clarkenwell Motion to make Scavengers execute their Office By-laws Mandamus to make Scavengers that are elected in that Parish to serve the Office Roll chief Iustice answered It is marvel that the City of London do not look to this for they have power by their by-laws to make men serve such offices yet take a mandamus for them to be brought hither to shew cause why they will not execute the Office Actoâ— and Ayres Mich. 1652. Banc. sup A Writ of Error was brought to reverse a judgement given in the Common Pleas in an Ejectione firmae Error to reverse a judgment in the Common Pleas in an Ejectione firmae Iudgement and the Error assigned was that the judgement was quod querens recuperet the words quod defendens capiatur are omitted And upon this Exception the Court reversed the judgement for they said in this judgement thus entred there is no return of damages nor a Capiatur and so the Common-wealth is cozened of the fine and the Defendant barred from bringing his writ of Error Dawkes and Coveneigh Mich. 1652. Banc. sup Hill 1650. rot 653. COveneigh was endicted for felony for breaking the house and taking 250 l. Special Verdict in an Action of Trespaâ—â— quare clausum irâ—gâ—t out of the house of Dawkes and found guilty and was burnt in the hand afterwards Dawkes brings an Action of Trespasse quare clausum fregit and for carrying away the 250 l. against Coveneigh who pleads not guilty and thereupon a special verdict was found to this effect that the Defendant did feloniously break the house and carry away the 250 l. and was endicted for it and was found guilty and burnt in the hand for it and if upon the whole matter c. The question upon the special verdict was If after the Defendant was endicted and found guilty and burnt in the hand for this fact at the sute of the keepers of the libertyes of England c. an Action of Trespasse quare clausum fregit and for carrying away the mony be maintainable by the party who was thus robbed against the party that robbed him or no. Latch of Councel with the Plaintiff held that the Action did well lye and that the Plaintiff ought to have Iudgement and that this special matter found by the Iury is no bar to the Action for if he had been attainted for another Felony it would not have barred the Plaintiff from his Action after he had been discharged but otherwise it is if the party bring his Action whilst the party stands attainted or the party be attainted pending the Action of Trespasse 33 Eliz. Wade and Prescots case in this Court and 34 Eliz. Trussels case in this Court and 6 Ed. 4. 4. and in our