Mich. 22. Car. B. r. For the Law doth not favor the poor to do injury to others but to help them to recover their right If one that doth doth sue in forma pauperis be non-suite at the tryal he must pay costs to the Defendant or else be whipped Pasc 1652. B. S. For the Law will Judge he had no cause of Action and therefore he must make satisfaction to the Defendant for injustly vexing of him and if he cannot do it by his purse be shall do it in his person If it be proved unto the Court that one who sues in forma pauperis is a vexatious person and hath many frivolous Suites depending the Court will Dispauper him 1654. B. S. For this will be a means to make him less contentious Rolle Chief Justice said That he did not use to admit any one generally to sue in Forma pauperis but onely to sue so in one Cause by vertue of that admittance 1654. B. S. Forfeiture If one take a wife that is Seised of Gavel-kind Lands and she dyeth without issue by her husband her husband shall be Tenant by the curtesie of half of the Lands so long as he shall live unmarried but if he marry again he shall Forfeit his estate in the Lands Mich 22. Car. B. r. This is by the custome of Kent but by the same custome if he had issue by his wife then he shall be Tenant by the curtesie of all the Lands his wife was seised of and although he do marry again he shall not Forfeite his estate Mich. 22. Car. Q. Whether in the former Case he shall forfeit his Tenancy by the courtesie if he do live incontinently If a Lease be so made that it is to be Forfeited if the Rent reserved in the Lease be not paid as the Lease doth provide although the Rent be not paid accordingly yet there is no Forfeiture to be taken if there was not an actual and Legal demand of the Rent made by the Lessor Mich. 23. Car. B. r. For the Law doth not favor defeating of estates If a Copy-holder do deny to pay unto the Lord the fine which is ascertained due unto him by the Copy-holder or do refuse to appear at his Lords Court and to do his Suite there this is a Forfeiture of his Copy-hold estate Trin. 24. Car. B. r. For he holds his Copy-hold of the Lord upon these conditions If a Copy-holder do let his Copy-hold unto another for years and the Lessee do sell the Timber growing upon the Copy-hold yet this is not a Forfeiture of the Copy-hold estate 6. Nov. 1650. B. S. Franchise Nor Franchise shall be allowed in any case where the Franchise doth fail to administer justice within the Franchise but if there be such a failer this Court by their Authority may intermeddle notwithstanding the priviledges of the Franchise to compell them to do Justice Mich. 22. Car. B. r. For priviledges are not granted to protect men in neglecting to do right or to do wrong Fees In such Cases where the Sheriff is to have Fees there he is not bound to execute his Office in returning of Writs c. untill the Fees that are due unto him be tendred unto him 22. Car. B. r. The Statute of 23. H. 5. which doth give Fees to Sheriffs doth onely extend to their executing of Writs of Execution 22. Car. B. r. There are no Fees due to the Sheriff by the Common Law by the Subject for executing his Office but the King ought to pay him his Salary Mich. 22. Car. B r. For as the people do owe Alleigance to their King so the King doth owe Justice and protection unto his people An Action of Debt doth lye for a Councellor or an Atturney for his Fees against him that retained him in this cause Mich. 22. Car. B. r. Q. Whether it lye for a Councellor If a Clyent when his business in Court is dispatched doth refuse to pay unto the Officer in Court the Fees which are due unto hâ—m for doing his business the Court will upon motion grant an Attatchment to the Officer against the Clyent to â—ave him committed untill he pay the Fees due By Rolle Chief Justice 1650. Felony Where one is doing of an unlawful act and the death of any person ensueth upon the doing of that act though the death of the party was not intended by him that did the act yet this is Felony Pasc 23. Car. B. r. If one be committed to the Goal for one Felony the Justices of the Goal delivery may enquire and try him for another Felony for which he was not committed By Bacon Justice Trin. 23. Car. B. r. It is Felony to personate a Baile By Bacon Justice Mich. 23. Car. B. r. Q. Whether the procuring of one to personate a Baile be Felony The receiving onely of stolen goods is not Felony but the receiving of them and comforting the Felon is Felony Pasc 24. Car. B. r. For he may receive them and not know them to be stolen but the comforting the Felon doth prove that he consented to the Felony If one be set upon in the High-way or other place to be robbed and he do cast away his goods with an intent to save them from the robber and the robber doth take them up and carry them away this is a robbery and Felony committed to the person of the party robbed although he took nothing from his person Mich. 1649. B. S. For the party is robbed of his goods and the thief knew them to be the parties goods and came with an intent to take them from him had he not cast them away One ought not to be arrested upon suspicion of Felony except that there be good cause shewed for the ground of this suspicion 1649. B. S. For every foolish fancy or conceit is no ground of a suspicion sufficient to arrest one for so high a crime It is Felony to take a Bill from off the File after a Verdict in the cause for which the Bill was sued forth Mich. 1649. B S. For this is embezeling of a Record The robbery of a servant of his masters money in his custody if it be in the presence of his master is robbing of the master Mich. 1649. B. r. A robbery shall be said to be done in that Hundred where the party robbed is first set upon although his goods be taken from him in another Hundred Mich. 1649. B. S. For there the robbery was begun and the peace first broken A Hundred shall not be charged for a robbery committed within it upon the Statute of Winchester in Crepulsculo or twilight that is when it is neither perfect day nor perfect night but if it be committed by day light although it be before the rising of the Sun or after the setting of it the Hundred shall be charged 31. Oct. 1650. B. S. A Hundred shall not be charged for a robbery committed within it in the night because hue and cry cannot be made in
in the possession of one of the Tenants that holds parcel of these Lands This is a good Lease to try the title of all the Lands But if the Freehold of the Lands in question be not an entire Freehold such a Lease sealed upon parcel of the Lands in question is not good to try the title of all the Lands Pasc 23. Car. B. r. For several Freeholds must have several Leases to try them because they are the Right and Titles of several persons or by several Titles A Lease for years although it be a very long Lease cannot be entailed For the nature of a Chattel cannot be turned into an Inheritance Hill 23. Car. B. r. Which would be if such a Lease which is but a Chattel might be entailed for an Estate intayl is an Estate of Inheritance A Lessee for years is not bound to repair the house let unto him which is burned by accident if there be not a special Covenant in the Lease that he shall leave the house in good repair at the end of the term But if the house be burned by the negligence of the Lessee he shall repair it although there be no such Covenant in the Lease Pasc 24. Car. B. r. For by the Lessees Covenant it shall be intended that he took notice of what accidents might happen and his Covenant shall be taken generally and without exception and strongest against himself In a Lease for years by Indenture the term is not certain before the habendum tenendum in the Lease Term. Trin. 24. Car. B. r. For though it do appear before the habendum tenendum that the Lands in the Lease mentioned are demised unto the Lessee yet it doth not appear for how many years they are demised nor when the Lease is to begin nor when to end until it is declared in the habendum One may raise an Estate for life in Lands to another by way of use viz. by covenanting with A. B. to stand seised to the use of J. S. for and during the natural life of J. S. without Livery and Seisin Mich. 24. Car. B. r. For the Estate is executed in the cestuy que use by the Statute of Vses of 32. H. 8. without Livery If one be in Possession of Lands of another and hath usually paid a Rent unto him for these Lands although it cannot be expresly proved that the Lands were demised at will to him that is thus in possession of the Lands that is that he should hold them as long as both parties should please yet this holding of the Lands shall be interpreted to be by a Lease at will Mich. 1650. B. S. For it shall be presumed that he in possession doth hold the Lands and that the owner of the Lands did receive the Rent for those Lands upon some Contract made between the parties for holding the Lands for some term and for paying of such a rent for them and a less time cannot be supposed then to hold them at will If one make a Lease for years and after the Lessor enters upon the Lands let before the term is expired or determined and doth make a Lease of these Lands to another this second Lease is a good Lease untill the first Lessee doth re-enter 2. Maii. Pasc 1650. B. S. And then the first Lease is revived Although a Lessee for years do lose his Indenture of Demise of the Lands let unto him yet he shall not lose his term in the Lands let by the Indenture which is so lost If it can be proved any way that there was such a term let unto him by Indenture and that it is not determined so it is of any other Estate in Lands if the Deed that created the Estate be lost if it can be proved that there was such a Deed made and that such an Estate was conveyed by the Deed. Pasc 1650. 14. and 15. Maii. 1650. B. S. For the Estate in the Lands is derived from the Party that made the Deed and not from the Deed otherwise then instrumentally and declaratively to shew his minde and intent that conveys the Estate as also the minde and intent of him that receives it Liberty Matters which do concern the Liberty of any one ought to be determined as speedily as lawfully they may be Trin. 22. Car. B. r. For Liberty is counted very precious and exceedingly favoured in Law not only in respect of the particular profit which every one obtains by his Liberty but also in respect of the Weal-publique For one in prison is disabled to be usefull to himself or any other Where any thing is shewed to be done within a Liberty or a Franchize there it is not necessary to shew within what County that Liberty or Franchize doth lie Trin. 23. Car. B. r. Leet If a Court Leet do not choose a Constable to serve within that Leet the Quarter-Sessions of that County where that Leet is may choose one Mich. 22. Car. B. r. For the Commonwealth must not be unserved and it much concerns the Peace of the Commonwealth but more especially of the County wherein the Leet lies to have such Officers chosen Q. Whether a Court Leet may enquire of private Assaults and batteries if there be no bloud shed in the Case For Bacon Justice and Walker apprentise of the Law of the Inner-Temple held that a Court Leet might enquire of them But Rolle Justice held the contrary Pasc 24. Car. B. r. because they are actionable at the Common Law only by the Party injured and are not publique offences against publique Limitation If a Limitation of an Estate in Lands be uncertain such a Limitation is not good in Law but void Hill 22. Car B. r. For the Law cannot tell what construction to make of such a Limitation by reason of the incertainty of it There is a difference between a condition precedent annexed to an estate subsequent to this condition and a Limitation subsequent annexed to an Estate presently vested Hill 22. Car. B. r. A thing that is expresly limited in a Will by plain words shall not be afterwards made incertain by general words which follow in the said Will. Hill 23. Car. B. r. For that were to encounter a thing that is plain and certainly known with that which is obscure and doubtfull A Limitation of an Estate to begin after the determination of an absolute Estate in Fee-simple is a void-Limitation in Law for if the Law should suffer such a Limitation to be made this would be to suffer perpetuities to be made which the Law doth abhor but yet a Limitation of an Estate to begin after a Fee-simple upon a Contingency is a good Limitation 19. April 1650. B. S. For such an Estate may never take effect London By the ancient Custom of the City of London there ought to be but four hundred Carmen allowed within London Hill 23. Car. B. r. Latitat A Latitat out of this Court is in the nature of an original Writ by
remedy whereof he desires and obtains the Kings Writ 21. Car. B. r. And in his Declaration the Plaintiff doth more at large express the same matter unto the Court where he brings his Action A Plaint in an inferiour Court is in the nature of an original Writ Pasc 24. Car. B. r. For upon the entring of it the process of the Court doth issue forth to bring in the Defendant to appear and to plead to the Plaintiffs Action Priviledge One that is a Committee-man of a Committee of Parliament if he be not a Member of the House of Parliament is not thereby priviledged from serving upon the grand Enquests which are returned every Term in this Court to take presentments of misdemeanours done within the County of Middlesex Hill 21. Car. B. r. A Clark of this Court is not bound to lay any personal Action which he brings against another out of the County where this Court doth sit Mich. 22. Car. B. r. But by his priviledge he may lay it here notwithstanding the Cause of his Action did arise in another County and he is thus priviledged in regard of the constant attendance he is tied to give in this Court yet in reall Actions he is not thus priviledged For such Actions are local and must be tried in the County where the Cause of Action did arise A Peer of the Realm cannot claim his Priviledge of Peerage in an endictment preferred against him Mich. 22. Car. B. r. Because an endictment is preferred in the Name of the King against whom the plea of Priviledge is not to be allowed but is only to be allowed in civil Causes and not criminal One that hath a Sute depending in this Court is priviledged by the Court from areâ—…ing in coming hither from his house or lodging to follow his Cause and also in departing from the Court back again directly to his house or lodging and if he be arested in so doing the Court upon a motion made to inform them of it will set the party at liberty and punish him that arrested him if he did know he had a Sute depending here and came hither to attend it The wife of an Attorney of this Court if she be arrested ought not to claim the priviledge of this Court not to put in bail to the Action as her husband may if he be arrested but her husband must put in bail for her and for want thereof she is to be committed to prison Trin. 1650. Jun. 25. B. S. For her husband is priviledged only in regard of his personal attendance upon the Court and of that tye which the Court hath upon him in regard of his relation to the Court. Prohibition In a Prohibition prayed to be directed to the Court of Admiralty to stay their proceedings upon a suggestion that they did hold Plea there upon a promise which was made infra corpus comitatus and so not triable there but at the Common Law It was said by the Court that the surmise must be absolute that the promise was made infra corpus comitatus and not that if there was any promise made it was made infra corpus comitatus for this is incertain and upon an uncertain surmise no prohibition can be granted for no Issue can be taken upon it though it should be false Hill 21. Car. B. r. This Court may by the Common Law grant a Prohibition to the Court of Admiralty to stay their proceedings if they hold Plea of any matter which the jurisdiction of their Court doth not extend unto Mich. 22. Car. B. r. A Prohibition doth lie in all Causes wherein a Habeas Corpus doth lie Mich. 22. Car. B. r. For this Court hath power as well to see Justice done concerning a mans estate as to his person Although it be questionable Whether a Prohibition do lie in the Case wherein it is moved for Yet this Court will grant it so that the parties concerned may appear here and plead or demur as they shall be advised to the intent the matter may come in question here and be decided Whether a Prohibition do lie in the Case or not Mich. 22. Car. B. r. And if it shall appear to the Court that a Prohibition doth not lie the Court will then grant a consultation whereby the party that was stopped in his proceedings by the Prohibition may now proceed in that Court to which the Prohibition was directed Mich. 22 Car. B. r. A Prohibition may be granted to the Prerogative Court to hinder them from granting Letters of Administration against the Law Hill 22. Car. B. r. Where there is a Sute depending in the Ecclesiastical Court for a personal Estate and also for Lands a Prohibition may be granted to stop their proceedings there as to the Lands only and they may nevertheless proceed there as to the personal Estate Pasc 23. Car. B. r. For as to the one thy have Jurisdiction and as to the other they have none If the Common Law and the Spiritual Law do differ in the way of their proceedings in matter of substance and the Ecclesiastical Court will proceed according to the course of their Law this Court will grant a Prohibition to stop their proceedings Pasc 23. Car. B. r. For in things doubtfull the Common Law is to be preferred before the Spiritual Law as being the more general Law and more tending to the general good of the people and the publick peace of the Nation If the Court of the Lord Maior of London shall hold plea of a Cause after it is removed into this Court by a Writ of Certiorari This Court may grant a Prohibition to that Court to stop their proceedings there Trin 25. Car. B. r. For after it is removed they have no further Conusance of the Cause A Prohibition may be granted out of this Court to any other Court that doth proceed in any Cause which doth not lie within their Jurisdiction Trin. 23. Car. B. r. For that is to exceed their Authority which this Court will not suffer but is to keep all other inferior Courts within their own bounds A Prohibition may not be granted to an inferiour Court to stop their proceedings in a Cause which doth not lie within their jurisdiction to try after that the Defendant hath allowed the jurisdiction of the Court by pleading to the Action Trin 23. Car. B. r. For it is then too late to move for a Prohibition for he ought before he had pleaded to have demurred to the Jurisdiction of the Court and then if they had proceeded he might have had a Prohibition or without a Demurrer I conceive he may move for a Prohibition and have it The Defendant in the Court of Admiralty may have a Prohibition to that Court after he hath pleaded there although he cannot have it to an inferiour Court after he hath pleaded for an inferiour Court doth not draw the matter in question ad alind examen but do proceed therein according to the Common Law But
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
award do make an end of all the differences submitted unto the Arbitrators by the parties Trin. 23. Car. B. r. Mich. 24. Car. B. r. An Award ought to be final and certain else it is not good Mich. 23. Car. B. r. If each party submitting to the Award hath power by the Award to compell the other party either by Law or equity to perform the Award the Award is good although the party be thereby put to his Action Mich. 24. Car. B. r. An Award that a thing shall be done to a stranger is a good Award if it appear that the parties who submitted to the Award have benefit by the doing of it Pasc 1650 B. S. 4. Junii If an Award be good in any part of it to all the parties that did submit to it if the Award be broken in that part an Action will lie for that breach Pasc 1650 B. S. 4. Maii. An Arbitrator cannot delegate or transfer the power given him by the parties that submitted to the Arbitration for it is contrary to the submission but an Arbitrator may refer a Ministeral act touching the Arbitration to another Trin. 1650. B. S. 15. Junii The Court will not suppose any thing to be Awarded in an Award which is not submitted unto except the Contrary be made to appear 10. Feb. 1650. B. S. Affirmance It is not proper to move to have a Judgement affirmed after a Writ of Error bought to Reverse it before the Errors be Assigned but one may move for Execution upon the Judgement 22. Car. B. r. Agreement A forced Agreement of the party is accounted to be no Argeement and therefore the Court will not compell him that did thus agree to a thing to perform his agreement 22. Car. B. r. An agreement which is made between the parties onely by Paroll may be discharged and made void at any time before it is broken by Parol without satisfaction but after it is broken it cannot be discharged without satisfaction of it 22. Car. B. r. If an Agreement made by Parol to do any thing be afterwards reduced into writing the Parol agreement is thereby discharged and if an Action be to be brought for the non performance of this agreement it must be brought upon the agreement reduced into writting and not upon the Parol agreement Pasc 23. Car. B. r. The Plaintiff and Defendant may by agreement between them give mony to the Jury before they pass upon the tryal to defray their charges where the tryal is put off and thereby they are forced to stay longer in Town then they expected Mich. 1649. B. S. Agreement By Rolle Chief Justice If the Plaintiffs Atturnoy and the Defendants Atturney do agree to things in order to the proceedings in their Clyents cause though the Clyents do afterwards refuse to consent to their agreement yet the Court will compell the Atturneys to perform the agreement Atturnment An Atturnment made unto Cestuy que use is a good Atturnment in Law to the Feffee of the Land if the Tenant of the land have notice of the use when he did Atturn Tenant to Cestuy que use Mich. 22. Car. B. r. An Atturnment made after Sun-set is not a good Atturnment for an Atturnment is a solmne act and ought to be done so that notice may be taken of it which shall not be presumed to be in the night Mich. 23. Car. B. r. Assumpsit or Promise A promise that is made upon a sufficient consideration is as if it were made upon a precedent condition Mich. 22. Car. B. r. An Assumpsit or promise to do a thing upon consideration that he to whom he made the promise shall surrender an indenture to him is a good consideration to ground an Action upon for breach of this promise although he to whom the Indenture is surrendred do take no estate by this surrender Mich. 23. Car. B. r. If one upon a good consideration do assume or promise to do a thing he that promised to do it shall have a reasonable time allowed to him for the doing of it and shall not have liberty to do it at any time during his life Hill 22. Car. B. r. Where an Assumpsit or promise is the very ground of the Action brought there it must be pleaded precisely but where it is but the inducement to the bringing of the Action there it is not necessary to set forth the promise precisely in the pleading Pasc 23. Car. B. r. Every contract made betwixt parties doth in Law imply a promise that they will perform the contract Hill 1649. B. S. 4. Feb. He for whose benefit a promise is made may have an Action for the breach of this promise although the promise was not made to him Pasc 23. Car. B. r. The consideration to stay his proceedings in a Suit in Law is a good consideration to ground an Assumpsit Trin. 23. Car. B. r. viz. for ever or for a certain time But if he promise to stay Paululum tempus it is not good If one part of the consideration upon which a promise is made to do a thing be against the Law and so void yet if another part of the consideration be good and lawful the consideration is good to ground an Assumpsit upon for the consideration may be divided and if any part of it be good it is sufficient to make the promise good Mich. 23. Car. B. r. An Assumpsit grounded upon a consideration which was past before the promise made is a good Assumpsit if it be alledged to be made at the instance or request of the Defendant Psac 24. Car. B. r. After a promise is broken the party that made this promise cannot be discharged of this promise by Parol but where the promise is executory the may Pasc 24. Car. B. r. Where one becomes legally indebted to another the Law creates a promise that he will pay this debt and if he do not pay it there is a sufficient ground for the party to whom he is indebted to bring his Action of Indebitatus Assumpsit against him to recover this Debt Trin. 24. Car. B. r. If the day of an Assumpsit made be pleaded in figures and not in words at length it is erroneous Pasc 24. Car. B. r. If an Action be brought upon an Assumpsit and upon proof it doth appear that the agreement was more or that it was less in substance then the Plaintiff hath declared upon he hath failed in laying of his Action otherwise it is if some circumstance only be omitted Mich. 24. Car. B. r. In an Action brought upon a promise it is usual to ground the Action upon one promise in the substance of it but to lay the promise divers wayes and by different words in the Declaration to the intent that upon the tryal the Plaintiff may rest or rely upon that way of laying it that his witnesses are best able to prove Mich. 24. Car. B. r. If one be indebted to another and do promise to pay
bar the Plaintiff from bringing an Action of account although he do not bring the Action within the time limited by the Statute for before that Statute one that had once cause of Action might bring it at any time afterward without restriction of time and this Action is not mentioned in the Statute Trin. 1650. 20. Junii B. S. An Action of Account doth not lie for Rent alone due and arrear for the Rent demandable is certain but if Rent be behind and there are also other things mixed with it for which the Action is brought then an Action of Account may be brought for both of them together because it is incertain upon the whole matter what is due to the Plaintiff Trin. 1651 B. S. If one receive money due to me upon an Obligation or for Rent due to me I may either have an Action of Account against him as my receiver or an Action of Debt as owing me so much money as he hath received though in both cases he do receive the mony without my consent Trin. 1651. B. S. Auditor Many things are in charge with the Kings Auditors which are not in the Crown Pasc 24. Car. B. r. Auditors Assigned by the Court upon an Action of Account brought to receive the Account are proper Judges of the cause Trin. 24. Car. B. r. Argument Two that are of Councel on one side ought not to Argue for their Clyent both of them upon one and the same day except it be for concluding of all the Arguments which are intended to be made for that party Mich. 1649. B. S. By the custome of the Court. It is not the usual course of the Court for one Councellor to argue the same Case twice By Rolle Chief Justice 12. Nov. 1650. B. S. Aide and Aide Prayer A Tenant for life may pray in Aide of all such persons as are in remainder of estate in the lands for which he is impleaded 1649. 29 Julii B. S. Baron and Fem. AN Action of Debt doth lie against the Husband for goods that were delivered to his Wife if it may be intended that those goods did any wayes come to the use of the Husband Hill 21. Car. B. r. A Fem Covert cannot submit to an Award for the submission is a free Act of will and the will of a Fem Covert is subject to the will of her Husband and so is not free Mich. 22. Car. B. r. But another person may submit to an Award for a matter which concerns the Fem and such a submission is a good submission in Law A Feofment made to a Fem Covert is a good Feofment in Law to pass the Lands if the Husband do know of it untill the Husband do disagree to it for if he disagree from it the Feofment is not good but if he once agree to it he cannot afterwards disagree from it and if he once disagree he cannot afterwards agree to it Q. Hill 23. Car. B. r. A Fem Covert may take a thing though it be not by Deed. Hill 23. Car. B. r. viz. If her Husband consent to it If a Fem sole be indebted to I. S. and afterward the Fem doth marry this Debt is become by the marriage the Debt of the Husband and of the Wife viz. the proper Debt of the Wife and the Debt of the Husband in right of his Wife and the Wife must be sued for this Debt jointly with her Husband and if the Husband dye pending the Suite yet is not the Debt gone but she may be sued for it after the death of her Husband Pase 24. Car. Trin. 24. Car. B. r. Bar in Actions A Recovery in a personal Action is a Bar in all other personal Actions touching the same matter Hill 21. Car. B. r. That is to say it is a good Ploa in Bar to a personal Action brought against the Defendant to say that the Plaintiff did formerly bring an Action against him for the same matter and did recover against him and therefore he prayes the Judgement of the Court whether he shall be permitted to proceed in his second Action In an Action brought to recover a thing from another if a recovery be there upon had by the Plaintiff the Defendant may plead this recovery in Bar of a second Action brought against him for the same thing 21. Car. B. r. A Plea in Bar which doth not give a full answer to all the matter which is contained in the Plaintiffs Declaration is not a good Plea 21. Car. B. r. viz. If it answer not all the material matter of it If the Plaintiff do reply to the Defendants Plea in Bar this replication is a confession in Law that the Plea in Bar is a good Plea although the Plea be not good Trin. 23. Car. B. r. For the Plaintiff hath slipped his advantage of Demurring to the Defendants insufficient Plea by replying unto it If an Action of Debt be brought against one and he Imparles to the next Term yet after his Imparlance he may plead that the Plaintiff is Out-lawed in Bar of the Action Trin. 24. Car. B. r. Baile One that is in Execution is not Bailable by the Law Hill 21. Car. B. r. For Bail is put in to secure the Plaintiff that the Defendant shall perform the Judgement of the Court and now the Law hath determined the matter and there remains onely for the Defendant to perform the Judgement and for the not performing it he lies in Execution Before a Capias is taken out against the Bail the Principal may render his body to the Marshal of the Court and the entry of this in the Marshals Book is a sufficient ground to discharge the Bail and it is not necessary to enter this upon the Record but if the Principal do render his body after a Capias taken out against his Bail it is in the power of the Court whether it shall be accepted or not and they may if they will give the Plaintiff leave to proceed against the Bail notwithstanding the Principals rendring of his body 21. Car. B. r. Because he did it not in due time but hath put the Plaintiff to the charge and trouble of suing out the Capias One that had been Indicted thirteen yeers before for suspicion of murder in poisoning his servant was brought in Court by a Habeas Corpus and was bailed to answer the fact 21. Car. B. r. Though one that is in Execution do bring a Writ of Error to reverse the Judgement given against him yet the Court will not Baile him except their appear unto them very apparent Error in the Record 21. Car. B. r. For else they will suppose that the Writ of Error is onely brought to gain the parties liberty and so to frustrate the Execution One Arnold James that was Bailed in the 44. and 45. yeer of Q. Eliz. upon a Judgement given against him in the Lord Majors Court of London was brought into Court by a Habeas Corpus Trin. 22. Car. B. r.
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
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
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
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
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
avoid trouble and charge which may otherwise befall him by executing the Judgement if he have a violent and malicious adversary After a Writ of Error is brought and allowed by the Court where the Judgement was given for the reversal whereof the Writ of Error is brought the hands of the Court are foreclosed that is stopped from proceeding upon the Judgement any further and there needeth no Supersedeas to be directed unto them nor is it necessary to mark the Rolle Mich. 1049. B. S. For every one ought to take notice of such general Writs as may any wayes concern them If a Writ of Error be brought to reverse a Judgement given upon a nihil dicit the bringing of this Writ of Error is a Supersedeas to stay Execution upon the Judgement notwithstanding the late Statute that enacts that a Writ of Error shall be no Supersedeas to stay Execution upon a Judgement Pasc 1651. B. S. 13. Maii. For that Statute onely extends to Judgements given upon a Verdict and not to Judgements given upon a nihil dicit or upon a non sum informatus or upon a demurrer Surprisal The Court is alwayes very cautious that no person that hath any cause depending before them be Surprised especially in such matters as are finall and penall to the party that is surprised Mich. 1649. B. S. Because by Surprisals the parties Surprised are deprived of making their full defence Setlement If one hath hired a dwelling house in one Parish and be settled in that house but a small time yet this is such a setlement in the Parish where the house is that the Justices of the Peace have no power to make an order to remove the party setled out of the Purish wherein he was so setled except the party so setled be lame or blind or likely to be suddainly chargeable to the Parish where he was so setled Mich. 1650. B. S. 11. Nov. Tryal and Proceedings to it NOtice to an under-tenant of a house or land that there is a Lease of Ejectment sealed and delivered to Try the title of the thing of which he is in possession is no good notice in respect to the upper tenant thereof or to him in reversion whose title is properly concerned and therefore if there be a Tryal and a Verdict and a Judgement in such a case where there was notice onely given to the under-tenant as aforesaid the Court upon a motion and proof of this matter will vacate such a Judgement as a fraudulent Judgement Hill 21. Car. B. r. For it is deceitfully obtained as to him in the reversion whose title is concerned in the Judgement No tryal ought to be had at the Bar the same Term that the Defendants plea is put in but the Term following by the Rules of the Court Hill 21. Car. B. r. Except it be by special rule of Court or in causes depending on the Crown side wherein the King is a party This Court will grant a Habeas Corpus to Try a Felon at the Bar although the Felony was not committed in the County of Middlesex isthere be not a Gaol Delivery in the usuall manner in the County where the Felony was committed Hill 21. Car. B. r. This is done for the expedition of Justice and that the prisoner may not lye long in prison for the Law favors liberty A Tryal in that Court where the issue Tryed was not joyned is not a good Tryal Hill 21. Car. B. r. For there was nothing before them to Try and so it was Coram non judice Where the Plaintiff will not Try his cause in such due time as he ought to do by the Rules of the Court the Defendant may upon warning given thereof to the Plaintiff proceed to the Tryal of it himself Hill 21. Car. B. r. That he may free himself from the Action that is brought against him Justices of Peace may by there Commission Try a murder committed in the County where they are Justices Pasc 22. Car. B. r. But they do not often do it but leave such matters to be Tryed by the Justice of the Gaol Delivery at the Assizes If any of the Defendants Witnesses to be used at a Tryal do live above fourty miles distant from London the Plaintiff by the Rules of the Court ought to give the Defendant fourteen dayes notice of the Tryal before he Try his cause Pasc 21. Car. B. r. That the Defendant be not surprised for want of sufficient time to get his Witnesses to be at the Tryall Upon a Tryal at the Bar when the Jury is at the Bar and the Court ready and the panell of the Jurors names is delivered to the Secondary he bids the cryer call the Defendant which he doth and if his Councel say they appear then the Secondary bids both parties take heed to their challenges and then proceeds to swear the Jurors but if he do not appear after thrice calling by the Cryer the Plaintiffs Councel do pray the Court the Verdict may be taken by default Trin. 24. Car. B. r. It is called a Verdict by default because if it pass against the Defendant where the Defendant had right and might have defended himself it is not the fault of the Court or Jury but his own that would not appear and defend his cause Where a Tryal is had by provisoe the Plaintiff may be called before the Jury is sworn if the Defendant do require it Trin. 22. Car. B. r. For the Plaintiff is as it were in the place of the Defendant because the cause is brought to a Tryal by the Defendant The Court will not grant a Tryal at the bar except there be oath made that the matter to be Tryed is very difficult or of great value Mich. 22. Car. B. r. In which cases it is fit the Tryal should be at the Bar where Tryals are more solemn and where more time may be spent in the Tryal then can be at the Assizes After a Tryal hath been in a cause the Court ought not to order that there shall be a new Tryal of it except it doth appear that there was a surprisall in the Tryal had or some fraudulent miscarriage in it for if they might in any case they please order a new Tryal this would be for the Court to have an Arbitrary power which the Law will not permit Mich. 22. Car. B. r. For this would weaken the Common Laws to the prejudice of the people Where warning is given of a Tryal to the Atturney in the cause and the Atturney cannot give notice of this warning timely enough for his Clyent to prepare for the Tryal the Court will not force the Atturney to go to a Tryal but will give longer time Mich. 22. Car. B. r. Because the Court will not surprise any person and such Tryals very seldome do determine the business but beget more trouble and charges to both parties Where there ought to have been a place alleadged whence the venue should come and there
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
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