they were preserved as things of value and to be made use of A writing that is permitted to be read to prove one part of an Evidence given to a Jury may be read to prove any other part of the whole evidence to be given Mich. 24. Car. B. r. If the Plaintiff or Defendant will give some part of an answer in Chancery in Evidence to a Jury the Court may order that the whole answer be read Mich. 24. Car. B. r. That the Court and the Jury may the better consider what it makes to the Evidence and it may be if part onely be read it may prove good Evidence for the party whereas the whole answer taken together may be against him He that takes out a Copy of part of a Record out of any Office with intent to give the Copy in Evidence to a Jury must take out so much of the Record at least as doth any wayes concern the matter in question at the tryal or else the Court will not suffer such Copy to be read in Evidence to the Jury Pasc 1650. 2. Maii. B. r. For if it be not so taken out it cannot be sworn to be a true Copy of so much of the Record as concerns the matter in question which is to be done before it can be read A transcript of a Record which is in another Court or an Enrolement of a Deed may be given in Evidence to a Jury Mich. 1649. B. S. For they are things to be credited being made by Officers of trust Upon a tryal at the Bar the Councel of that party who doth begin to maintain the Issue that is to be tryed whether it be the Councel of the Plaintiff or the Councel of the Defendant ought to conclude the Evidence Pasc 1650. 1. Maii. B. S. If any one of the Jury that is sworn to try the Issue be desired to give his Testimony concerning some matter of Fact that lies in his particular knowledge and concerns the matter in question as Evidence to his fellow Jurors the Court will have him examined openly in Court upon his Oath touching his knowledge therein and he is not to deliver his Testimony in private unto his fellow Jurors 31. Oct. 1650. Mich. B. S. For the Court and Councel on both parts are to hear the Evidence as well as the Jury In the case of Miller Plaintiff and Collumbine Defendant upon a tryal at the Bar in an Action of Trespas and Ejectment It was said by Rolle Chief Justice That an Office which is found after the death of one that died Seised of Capite Lands in a County wherein the Lands found in that Office do not lye but in another County may notwithstanding it was not found in the County where the Lands do lye be given in Evidence to a Jury that is to try the title of those Lands if there was a special Livery granted unto the Heir of those Lands 1654. B. S. The Jury may view Depositions taken in Chancery if they be exemplified under the great Seal and they may also have them with them from the Bar to consider of as part of the Evidence but if they be not exemplified under the great Seal they may only look upon them at the Bar but not have them with them out of Court 1655. B. S. If one do produce a Lease made upon an Out-lawry in Evidence to a Jury to prove a title he must also produce the Out-lawry it self but if he produce the Lease to prove other matter he needs not to shew the Out lawry but may have the Lease onely read in Evidence and so it is of an extent without shewing the Statute or Judgement on which the extent is grounded So held in a tryall at the Bar between Johnson and Spencer Pasc 1655. B. S. By Glynn Chief Justice it was said That all the Judges have agreed that upon the Meal Act the Defendant shall give matters in Evidence to the Jury which do onely tend to prove the Issue in question and no other matter Trin. 1655. B. S. For that act is so mischeivous that it is no way to be favoured Emparlance If the Plaintiff do amend his Declaration at any time after it is delivered to the Defendants Atturney or after it is filed in the Office in any thing that is matter of substance the Defendant may by the Rules of the Court Emparle to the next Term after that the Declaration is so amended if the Plaintiff do not pay costs to the Defendant for his amendment but if the Defendant do accept of Costs of the Plaintiff then the Defendant cannot Emparle Mich. 22. Car. B. r. In what Term soever a declaration comes in against the Defendant the Defendant may by the Rules of the Court Emparle to the next Term after before he can be compelled to plead Mich. 22. Car. B. r. For the Law doth not force any one to do any thing rashly and without advice but gives the party time to deliberate what to answer for himself Where the Defendants Case doth necessitate him to plead a special Plea and the matter is difficult which is to be pleaded the Court upon a motion made to inform them of it will if the Defendant desire it grant him longer time to Emparle and put in his Plea then otherwise by the Rules of the Court he ought to have Hill 22. Car. B. r. Where the Plaintiff doth keep any Deed or Writting or other thing from the Defendant which doth belong unto him and whereby he is to make his Defence and is disabled by the detaining thereof to plead for his best advantage the Court upon motion and information thereof will grant an Imparlance to the Defendant untill the Plaintiff do deliver it unto him and a convenient time after till he can draw up his Plea Hill 22. Car. B. r. For the Law doth give every Defendant convenient time to make his best defence If the Plaintiff alter the venue from the place where he first laid it the Defendant may Emparle to the next Term after Trin. 23. Car. B. r. For thereby he may be forced to alter his Plea If the Plaintiff do declare against the Defendant but doth not proceed further thereupon for three whole Terms after the Defendant may Emparle to the next Term by the Rules of the Court Hill 23. Car. B. r. If the Plaintiff amend his Declaration and pay Costs to the Defendant the Defendant may not Emparle but if the Plaintiff give the Defendant a new Declaration or do so amend the old Declaration that it is upon the matter a new Declaration then the Defendant may Emparle Mich. 1654. B. S. By Rolle Chief Justice If the Plaintiff and the Defendant have proceeded so far as to Issue in the Cause and after that the Defendant do amend his Plea the Defendant shall pay the Plaintiff Costs yet the Court will not grant an Emparlance unto him although the cause be not entered in the Judges book for tryall if there
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
it is granted and all the Causes which are then depending against him 21. Car. B. r. A Habeas Corpus is either adsubjiciendum granted on the Crown side Or ad respondendum granted on the Pleas side The Court will not grant a Habeas Corpus retornable immediate but in some Cases they will give but a short time to retorne it Trin. 23. Car. B. r. For though the Law doth favour liberty yet it allowes convenient time for doing of things After the retorn of a Habeas Corpus is read and filed in Court it cannot be amended Trin. 23. Car. B. r. For then it is a Record of the Court. None ought to take out a Habeas Corpus for a Prisoner without his consent Trin. 23. Car. B. r. This holds not in all Cases for one may take out an Habeas Corpus without his consent to charge him with an Action A Habeas Corpus to remove one that was committed for debt from one prison to another may be granted retornable immediate or rather in dilate for this is only a Habeas Corpus ad recipiendum in the nature of it A Habeas Corpus was granted out of this Court directed to the Serjeant at Armes of the House of Commons in Parliament for a prisoner committed unto him by a Committee of the House of Commons Mich. 23. Car. B. r. A Iudge of this Court will not grant a Habeas Corpus in the vacation for a prisoner to follow his suit but the Court may grant a speciall Habeas Corpus for a prisoner to be at his tryall in the vacation time Pasc 1650. 24. Maii B. S. The Court will grant a Habeas Corpus to one to have a prisoner out of prison to be a witness for him at a tryall but at the charge of him that desires the Habeas Corpus and at his perill to take care that the prisoner do not make an escape 29. Junii 1640. Trin. B. S. A Habeas Corpus ad subjiciendum is granted on the Capital or Criminal side but a Habeas Corpus ad recipiendum faciendum is granted on the Pleas side 1650. B. S. For so the Court of the upper Bench is divided in the practise of it viz. into Criminal Causes which are between the Protector and the party and the Civil Causes which are acted on the Pleas side and are between one subject and another Habere facias possessionem One may have a new Writ of Habere facias possessionem if a former Writ of Habere facias possessionem in the same Cause be not well executed or retorned Mich. 22. Car. B. r. For that is all one as if such Writ had never been taken out Homage When livery is granted to the Heir at full age of the Lands for which he was in ward to the King during his nonage and which were by reason thereof in the Kings hand his homage which he should do to the King by reason of his tenure at the time when the livery is sued forth is respited for a certain summe of money to be paid yearly to the King by the heir untill the heir shall do his homage and these monies are called respite of Homage because by reason of such monies the Homage is respited or put off from year to year 1655. B. S. Hundred If a robbery be begun in the Hundred of Dale and ended in the Hundred of Sale the Hundred of Dale is chargeable for this robbery upon the Statute of Winchester 1655. B. S. Q. For it seems both should be chargeable Jury THe Court was moved that a Jury of Merchants might be retorned to try an issue between two Merchants touching Merchants affairs and it was granted Hill 21. Car. B. r. Because it was conceived they might have better knowledg of the matters in difference which was to be tryed then others could who were not of that profession A Jury may finde a thing which is not given unto them in evidence if they do know it of their own knowledg Mich. 22. Car. B. r. For they may enform themselves of the truth of the fact they are to try by all possible and lawfull means they can and are not solely tyed to the evidence given at the bare A Jury may take notice of a matter of Record but they cannot try it Mich. 22. Car. B. r. For a Record must be tryed by it self In every Case where there is to be a speciall Jury retorned there ought to be a speciall Writ of Venire facias to summon that Jury Mich. 22. Car. B. r. If more then twelve men be returned upon a Jury and do appear the first twelve that stand in the panell are to be sworn and to try the Cause Pasc 23. Car. B. S. If none of them be challenged but if some of them be challenged and the challenge is also made good against them then so many more of those that remained above the number of twelve shall be taken in in order as they are ranked in the panell to fill up the number that wanteth to make it a full Jury If a Juror do inhabit in a house that is in the Parish of Dale and do occupy Lands that do lye in the Parish of Sale next adjoyning and he is retorned upon a Jury as of the Parish of Sale this is well enough although he do not dwell in Sale Pasc 23. Car. B. r. For he shall be said to be as well of the Parish where the Lands lye which he occupieth as of the Parish where he inhabits for he is a parishioner in Sale though an inhabitant in Dale If more then twelve men do appear at a tryall after twelve of them are sworn the rest that are unsworn must not continue upon the stand with those that are sworn but must depart Pasc 23. Car. B. r. The Court may give the Jury leave to drink at the Barr after the evidence is given to them and before the verdict if the Plaintiff and the Defendant will consent unto it Pasc 23. 23. Car. B. r. But they may not drink out of the Court A Jury had leave to drink at the barr after a long evidence given in a very hot day in Easter Term above-said In Cases where it is conceived an indifferent Jury will not be retorned between the parties by the Sheriff of the County where the venue lyes the Court upon motion will order the Sheriff to attend the Secondary of the Office with his book of the Freehoulders of the County where he is Sheriff that he may see an indifferent Jury retorned Trin. 23. Car. B. r. A Jury cannot try a Consideration to ground an Assumpsit if the Consideration was given or acted out of that County where the action is tryed Trin. 23. Car. B. r. Upon a motion and an Affidavit made in Court that the Cause to be tryed at the barr is a Cause of very great consequence the Court will make a Rule for the Sheriff to retorne 48. Jurors upon the Jury Trin. 23.
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
them from the Barr to consider of their verdict because they are not under seal 28. Apr. 1651. B. S. But all Deeds or writings under seal and given in evidence they may have but nothing which was not given in evidence may they have Conveyance A Conveyance made unto one by his reputed Name although he is not the same person in Law as he is reputed yet is the Conveyance good but if such a Conveyance be made to raise a use then it is not good 28. Apr. 1651. B. S. A Conveyance cannot be fraudulent in part of it and good as to the rest 30. Apr. 1650. B. S. For if it be fraudulent and void in part it is void in all for it cannot be divided If I Covenant to Convey Lands to another I am bound to do it at my own charges except it be otherwise agreed betwixt us Trin. 1651. B. S. Certificate This Court will not make a Rule for a Judg to make a Certificate to them of a matter done before them but if the Judg will do it voluntarily they will receive it Clarke By Roll Chief Justice no Clarke ought to be admitted into the Office of the Custos brevium without the consent of the Lord Chief Justice first obtained and those that are admitted ought to be chosen out of the best of the Clarks in the Upper bench Office 1655. Departure When the Plaintiff doth plead in his Replication a matter which is contrary to that which is admitted in his Declaration this is a Departure from his Plea Mich. 24. Car. B. S. Denison An Alien that is made a Denison by the Kings Letters Patents is thereby enabled to purchase Lands but he is not thereby enabled to inherit the Lands of his ancestors as Heir at Law but as a Purchaser he may injoy Lands of his ancestors Mich. 42. Car. B. S. But if he be Naturalized by Act of Parliament he may inherit them as Heir at Law as well as have them by purchase Delivery It hath been the course to Deliver a Lease of Ejectment to the party to whom the Letter of Attorney is delivered and for the Attorney by vertue of his Letter of Attorney to deliver possession of the Land let by Lease upon his delivery of the Lease Pasc 24. Car. B. r. A Deed cannot be Delivered as an escrow to the party himself to whom the Deed is made Trin. 24. Car. B. r. But it must be delivered to a stranger as an escroe for so soon as it is Delivered to the party to whom it is made it takes effect as a Deed and cannot be an escroe Dower A woman was not Dowable of Tythes before the Statute of 32. H. 8. 24. Car. B. r. A woman is Dowable of a Common appendant but not of a Common in gross Pasc 24. Car. B. r. For Common appendant belongs to Lands and Tenements whereof she was endowable and cannot be severed A woman may be endowed of the profits of an Office or of a Faire or of a Market Pasc 24. Car. B. r. Dower is favoured in Law and as it is favoured in it self so is the party that sues to recover her Dower favoured in her proceedings in Law to recover it as much as in jostice may be permitted Pasc 24. Car. B. r. Difference There is a Difference between the Latine words in dilaté and immediaté and it is more proper to direct a Writ to be retorned in dilate then to direct it to be retorned immediate Hill 23. Car. B. r. For to retorne it in dilate is to retorn it with as much speed as may be and not to use any trifling excuses or delayes to retard the retorn of it but to retorn it immediate is impossible for it will require some convenient time to do it in and as it may fall out longer then is expected Depositions Depositions taken in a Cause depending in Chancery though the Cause be there determined or dismissed may be given in evidence at a tryal at the Barr in a suit depending here between the same parties that sued in the Chancery if the party that deposed to the Interrogatories be dead at the time of the tryal else not but those Witnesses must appear in person in Court and be examined viva voce in the Cause and so it is of Depositions taken in any other Court Mich. 24. Car. B. r. Discretion Where a thing is left to any person to be done according to his Descretion the Law doth intend it must be done with sound Descretion and according to Law And this Court hath power to redress things that are otherwise done notwithstanding they be left to the Descretion of those that do them Trin. 23. Car. B. r. For their Descretion is not properly Discretion but folly or madness Devise A Devise of the profits of Lands for years is a Devise of the Lands themselves for so many years as the profits are Devised Trin. 23. Car. B. r. If a man Deviss his Lands to his children without fayeing more this is but a Devise for life 36. Eliz. B. r. In Dickons and Marshals Case adjudged Hill 23. Car. B. r. A Devise to one of any thing which the Law would have cast upon him although it had not been Devised untohim is a void Devise Mich. 24. Car. B r. For his title to it by Law is his ancient and best title and the Law will adjudge him to take by that An Administrator of a Term cannot Devise it but an Executor of a Term may for an Executor hath a greater interest in his own right then an Administrator hath 1651. B. r. Deodands Deodands that is the Goods and Chattels of which felo de se that is of him that kills himself do belong to the Kings chief Almoner that is he that disposeth of the Kings Alms to distribute them to the poor or to employ them in other pious uses and a discharge given for them to any person that hath such Goods of a felo de se in his possession by the Almoner or his Deputy is a good discharge in Law for them but a discharge given for them by an under-Deputy it no good discharge Trin. 23. Car. B. r. Demurrer If a Demurrer be entred it cannot be waived except both the Plaintiff and Defendant do consent unto it Mich. 22. Car. B. r. Nor then without leave of the Court. A Demurrer may be upon a replication Rejoynder c. as well as upon a Plea Mich. 23. Car. B. r. For all parts of a pleading to issue ought to be according to the Rules of Law and if any part fail the whole is naught If the Court do perceive that a Demurrer is put in onely to put off a tryal or for delaying of the proceedings they will not allow of such a Demurrer nor enjoyn the other party to joyn in the Demurrer but will give Judgement against the party upon his frivolous demurrer Mich. 22. Car. B. r. And 24. Car. B. r. Where there ought to be
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
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
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
the Court of Admiralty do draw the matter ad aliud examen that is to try it by the Civil Law Trin. 23. Car. B. r. And therefore this Court will use their Authority at any time to stay their proceedings in the Admiralty although the Defendant have by his incautelous pleading allowed their Jurisdiction It is not necessary for him that Libels in the Court of Admiralty to shew in his Libel that the Common Law bath no Jurisdiction of the matter for which he Libels but he that prayes a Prohibition to the Admiralty in this Court must suggest something wherein in respect of the Cause depending there and for which he prayes the Prohibition that Court hath no Jurisdiction of the Cause Hill 23. Car. B. r. For the Admiralty cannot determine whether the Common Law have Jurisdiction or not and therefore it would be a vain allegation but this Court can judge of the Jurisdiction of the Courts of Common Law and can determine whether other Courts do intrence upon their Jurisdictions or not If the Court of Admirality do hold plea of any matter which is not maritime although the thing were done upon the Sea yet this Court will grant a Prohibition to stop their proceedings Hill 23. Car. B. r. For the Court of Admiralty hath only Jurisdiction in maritime Causes viz. such as only concern sea-affairs and not of all matters done at Sea as Contracts c. the Tryal whereof belongs to the Common Law This Court will grant a Prohibition to the Admiralty if there be cause for it although that a consultation have been granted in the Court of Common Pleas in the same cause Hill 23. Car. B. r. This Court ought not to deny the party a Prohibition that doth pray it if there appear cause for a Prohibition for it is not a thing arbitrary or ex gratia curiae to grant it or not to grant it Hill 23. Car. B. r. For to deny it were to deny Justice to the party in denying him the benefit of the Common Law which is every free-born English mans birth-right A Prohibition may be granted to the Spiritual Court after a sentence given in the Cause in that Court for which the Prohibition is prayed if there be cause but the Court will not do it untill they have heard Councell speak on both parts to inform their consciences although before a sentence they use to grant it upon a bare suggestion of the party Tuesday 2. July 1650. B. S. and Pasc 1652. B. S. For a sentence in an Ecclesiastical Court is in the nature of a Judgement given at the Common Law and presumed to be given upon mature deliberation and therefore this Court will not but by good advice make a sentence there given void or hinder the execution of it A Prohibition doth not lie to the Court of Admiralty in the cases of Felony yet if there be cause this Court will grant a Certiorari to remove the Cause hither By Rolle Chief Justice in Dothicks Case 29 Oct. 1650. B. S. Q. Tamen quia curia advisare vult Pleas and Pleadings If an Action be grounded upon a Statute there the Statute must be precisely set forth in pleading but if a Statute recited be but an inducement to the action there it is not necessary to recite the Statute precisely Hill 21. Car. B. r. For if the Statute be not precisely recited the Defendant cannot tell how to plead to the Statute As a plea in bar may go per partes so may in like manner a plea pleaded in abatement of a Writ Hil. 21. Car. B. r. A Plea is then said to go per partes as I conceive when one part of it goes to one part of the Declaration and another part of the Plea answers another part of the Declaration One that appears in Court upon a Habeas Corpus ought to plead the same Term wherein he comes in Hill 21. Car. B. r. If the Defendant do not plead according to the Rules of the Court so that the Plaintiff may enter Judgement upon a Nihil dicit yet if after the Rules are out the Defendant do put in his Plea into the Office before the Plaintiff hath entred his Judgement this Plea is to be accepted and the Plaintiff ought not then to enter his Judgement and therefore it behoves Attorneys to be vigilant in their practice 21. Car. B. r. and 23. Car. Hill For a Judgement upon a Nihil dicit is for want of a Plea but in this Case here is a Plea and if such a Judgement should be entred it would be in facto an irregular Judgement If the Defendant in an Ejectione firmae do not plead in time according to the Rules of the Court the Plaintiff may after the Rules for pleading be out move the Court to set a short day for him to plead which will be granted if the Land lie neer at hand and if the Defendant do not plead at the time set by the Court the Plaintiff may enter Judgement upon a Nihil dicit 21. Car. B. r. But now such motions are not usual for Judgement may be entred of course A forraign Plea is to be put in upon Oath of the Defendant that is he must swear his Plea is true or else such a Plea is not to be received Mich. 22. Car. B. r. Mich. 24. Car. B. r. A forraign Plea is when the Defendant doth plead such matter that if it be true the cause cannot be tried in this Court and in regard that thereby the Defendant doth endeavour to hinder the proceedings of this Court and to delay the Plaintiff therefore the Court will make him swear his Plea to be true that the Court may not be deluded nor the Plaintiff trifled with by a false Plea and if he will not swear his Plea to be true the Plaintiff may enter Judgement for want of a Plea Trin. 1650. B. S. If an Action of Debt be brought upon an erroneous Judgement the Defendant may plead Null tyel Record that is that there is no such Record as he frames his Action upon Mich. 22. Car. B. r. For that which is erroneous is accompted in Law as null and void If the Defendant do plead a dilatory Plea the Court at the Plaintiffs motion will order him to plead such a Plea as he will stand to Mich. 22. Car. B. r. For the Law favours not delayes whatsoever is vainly babled by the ignorant to the contrary And if he be ordered to put in a Plea to which he will stand and he do it accordingly if such his Plea be not good the Court will not permit him to amend it but the Plaintiff shall take advantage of it by demurring upon it or otherwise as he shall be advised In any Action wherein the Plaintiff in case he recover shall only recover Dammages the Defendant may plead in Barre to this Action an arbitrement with satisfaction thereupon made unto the Plaintiff Mich. 22. Car. B. r. For if the Plaintiff have
Upon a contract in the nature of a Debt Request or no Request is not material but it is otherwise if the contract be a special contract for a Collaterall thing Mich. 1650. B. S. Repeal The Defendant cannot Repeal his Warrant of Atturney given to an Atturney to appear for him but he is compellable to appear by his Atturney according to his Warrant by the rules of the Court that he may not delay his appearance by that means to the prejudice of the Plaintiff Trin. 22. Car. B. r. Reversal The chief Justice or the ancientest Judge in the Court in his absence doth alwayes pronounce the reversal of an erroneous judgement to be Reversed by a Writ of Error openly in Court upon the prayer of the party and he pronounceth it in French to this effect Pur les errors avandit et auters errors manifest in les record soyt les judgement reverse le Defendant restore a tout ceo que il ad per ceo perd In English thus For the aforesaid errors and other manifest errors in the Record let the Judgement be Reversed and the Defendant restored to all that which he hath lost by it Trin. 22. Car. B. r. But now the Seignior Judge pronounceth it and doth it in English The Reversal of a Judgement may be pronounced conditionally that is that the Judgement is Reversed if the Defendant in the Writ of Error do not shew cause to the contrary at an appointed time Trin. 22. Car. B. r. Where divers persons stand Out-lawed for a forcible entry if the Out-lawry be erroneous it may be Reversed as to one of the persons Out lawed and stand good as to the others but the possession of the Land cannot be restored untill the Out-lawry be Reversed in the whole Hill 22. Car. B. r. The Judge will not pronounce the Reversal of an erroneous Judgement though it be adjudged to be erroneous except the Councel for the Plaintiff in the Writ of Error do pray it may be pronounced Hill 1649. B. S. 30 Jan. For the Judges are only to do justice to those that desire it Restitution and Rerestitution No Restitution is to be granted by the Court upon the suggestion of the insufficiency of an endictment of forcible entry or other matter untill the Certiorari granted to remove the endictment into this Court be returned Mich. 22. Car. B. r. For before the retâ—rn the Court hath nothing before them upon record to judg upon Where an endictment of forcible entry is quashed the Court upon motion doth usually grant the party endicted a Writ of Rerestitution to restore him to the possession of the Land yet the Court may if they please settle the possession of the Land in question according to their own discretions viz. where they shall conceive the most right to be for the possession Mich. 22. Car. B. r. There ought to be no Restitution or Rerestitution granted of the possession of Lands where it cannot be grounded upon some matter of record Hill 22. Car. B. r. A Writ of Restitution lies to restore one to the place of one of the Common Councell of London or to the place of a Constable if he be illegally put out of such a place Trin. 22. Car. B. r. Or to a Church-wardens place or to a Recorders or Town-Clarks place and generally to any publike Office or place of profit or trust but not to a private Office or place The words remisit relaxavit expressed in a Charter of pardon granted by the King unto one for a felony committed by him do not restore him unto his goods which he forfeited unto the King by being convict of the felony but there ought to be the word restituit which doth properly and in its genuine signification import a Restitution to a thing which he hath not whereas the words remisit relaxavit may signifie the remitting or releasing of the claim which one hath to a thing which is in his possession to whom the release is made Trin. 23. Car. B. r. The proper nature of a Writ of Restitution is to restore the party that hath it unto the possession of a free-hold or other matter of profit Trin. 23. Car. B. r. Yet this doth not generally hold for one may have a Writ of Restitution in some Cases to be restored to a place of no profit as is before expressed The Law doth oftentimes restore the possession to one without a Writ of Restitution to wit by a Writ of Haberefacias possessionem and otherwayes in common course and proceedings of justice Trin. 23. Car. B. r. A Writ of Restitution is not properly to be granted but in such Cases where the party cannot be restored by an ordinary way of justice or course of Law and many times such cases do happen Trin. 23. Car. B. r. If one be endicted for a forcible entry and the party endicted do traverse the endictment he cannot have restitution granted unto him before a tryall and a verdict and judgment also given for him although the endictment be erroneous Mich. 23. Car. B. r. Mich. 24. Car. B. r. For it is too late to move to quash the endictment after he hath taken his traverse and so the endictment must stand good against him till the tryall The Justices of Peace only before whom an endictment of forcible entry is found must give the party Restitution who was put out of possession by force and not other Justices of Peace of the County but the Judges of this Court may grant a Writ of Restitution though the endictment was not found before them Hill 23. Car. B. r. For they have a superintendent power over all England Where a Judgment for Land is reversed in this Court by a Writ of Error the Court may grant a Writ of Restitution to the Sheriff to put the party in possession of the Land recovered from him by the erroneous judgment Pasc 24. Car. B. r. There may a Writ of Restitution be granted to one that stands endicted for a forcible entry after he hath traversed the endictment and before the tryall if there do appear to be apparent delay in the proceeding of the Defendant upon the traverse else not as is aforesaid Trin. 24. Car B. r. There cannot be a Writ of Rerestitution granted where there doth not appear to have been a Writ of Restitution formerly granted in the Case Mich. 1650. B. S. For the very word Rerestitution doth imply that there was a Writ of Restitution formerly granted A Writ of Rererestitution may be granted upon a motion for it if the Court see cause to grant it By Ask Justice Pasc 1650 B S. 2. Maii. Upon an endictment of forcible entry found against the party if he do neither traverse nor plead to the endictment the party put out of possession may be restored to his possession without moving the Court. Pasc 1650. B. S. 22. Maii. Rule The Court will not make a Rule for a thing which may be done by the