this debt at a day to come the party to whom he made this promise cannot bring his Action for the Debt untill the day be passed upon which he promised to pay it By Rolle Chief Justice and by German Justice for he said that the promise is a suspention of the Debt pro tempore 29. Jan. 1650. B. S. If one promise unto a woman that in consideration that she will marry with him he will intermarry with her this is a mutual promise and an Action lies by either party against the other for breach of it 18. Ap. 1650. B. S. Appeal In a Writ of Appeal all the pleadings ought to be in French Mich. 22. Car. B. r. This is since altred by the late Statute that Enacts all proceedings in Law to be in English If in an Appeal the Defendant plead in abatement of the Writ and the Writ be adjudged good it is peremptory and he shall not be permitted to answer over but shall be condemned upon the Writ Mich. 22. Car. B. r. In an Appeal the Appellant ought to appear in Court in person yet upon a motion to the Court the Court may admit him to prosecute his Suite by his Atturney Mich. 22. Car. B. r. The defect in any Process in an Appeal doth discontinue all the Appeal and makes an end of the Action as well as a defect in the Original Writ Hill 22. Car. B. r. Age. If the question be whether the party be of full Age or within Age it shall be tryed by the Court by inspection of the party and not by a Jury Hill 22. Car. B. r. Advantage It is not good practice to take an advantage against the Defendant to obtain a tryal the sooner against him for it causeth clamor from the party and makes him oftentimes press the Court for a new tryal Hill 22. Car. B. r. He that will in pleading take advantage of a particular Statute must shew particularly that he is comprised within the Statute Pasc 23. Car. B. r. Assize An Assize is to be Arraigned in French and first the Defendants Councel doth pray the Court that the Tenant may be called which the Court grants and thereupon he is called by the Cryer of the Court and if upon his calling he do appear then the Tenants Councel do demand Oyer of the Writ of Assize and the Return of it which is granted and thereupon he prayes leave of the Court that he may Imparle which is granted to a short day after and the Jury is adjourned by the Court to appear at that day Hill 22. Car. B. r. Note that the Jurors that are to trye the Assize are called Recognitors of the Assize At the day granted to the Tenant to Imparle unto the Tenant is called and upon his appearance he pleads to the Assize in Latin and upon this an Issue is joyned between the parties and after the Jury or Recognitors of the Assize are examined upon oath upon a voire dire whether they had the view of the land in question and if they say they have had then are they sworn to try the Issue and the Councel do proceed to give them their evidence Pasc 23. Car. B. r. Arraignment If in an Appeal brought the Writ be abated the Defendant cannot be Arraigned upon the count which is grounded upon this Writ Pasc 23. Car. B. r. One Awbry that had been formerly Indicted for upon the Statute for having two Wives and was Out-lawed upon this Indictment was brought to the Bar and Arraigned to this effect First the secondary on the criminal side spake thus Awbry hold up thy hand which the prisoner did then he proceeded thus Awbry thou hast been heretofore Indicted of Felony and thereupon Out-lawed in due course of Law for having of two Wives and hast been Arraigned thereupon what canst thou say for thy self why thou shouldest not have sentence of death pronounced against thee Prisoner I take this exception to the Indictment that it is not said to be found per sacramentum duodecim proborum legalium hominum and I desire I may have Twisden and Hales assigned for my Councel Court You shall have them Thereupon the Councel prayed that the prisoner might bring a Writ of Error to Reverse the Out-lawry Court Let him have it Attaint An Attaint doth lie against a Jury that do give their Verdict contrary to the evidence that is given unto them Pasc 23. Car. B. r. Audita Querela Where the Bail is detained in prison in Execution after the judgement which was given against the Principal is Reversed by a Writ of Error there the Bail may bring an Audita Querela to be discharged Pasc 23. Car. B. r. If one be taken in Execution and is afterwards set at liberty and then is taken again and detained in prison upon the same Execution he may bring his Audita Querela to be enlarged Mich. 24. Car. B. r. If a judgement given in another Court be removed into the Upper Bench Court by a Writ of Error and the party who had the judgement notwithstanding the removal of it by the Writ of Error do bring an Action of debt upon this Judgement in the Court where he obtained the Judgement as he may do if afterwards pending this Action of Debt the Judgement be Reversed by the Writ of Error the Defendant against whom the Judgement was obtained may bring his Audita Querela to be relieved against the Action of Debt brought upon the Judgement 3. Feb. 1650. B. S. One Tritton that was in Execution brought his Audita Querela and prayed he might be Bailed and it was granted and he was bailed by four persons 7. Feb. 1650. B. S. Authority Doctor Cowels book called the Interpreter is not a book of Authority to be urged for Law for it was condemned to be erroneous and scandalous by Parliament and by the authority thereof was publikly burned as erroneous and scandalous A verbal authority given by divers Plaintiffs in an Action of Trespas and Ejectment to deliver a Lease of Ejectment upon the Land though the Lease be signed and sealed by them off of the Land Let in the Lease is a good authority to execute this Lease So held in a tryal at the Bar between Vanlore and Crook Mich. 1649. 7. No. B S. Apurtenant and Apendant Yards Orchards and Guardens are Appurtenances to a Messuage but Lands cannot be said to be Appurtenant to a Messuage though they be used with the Messuage for the Messuage is a Messuage though the Lands be taken away Hill 23. Car. B. r. One Messuage cannot be Appurtenant to another Messuage for they are both entire things of themselves Pasc 24. Car. B. r. Account An Action of Account or an Action of Debt lies at the election of the Plaintiff against one for receiving mony of a third person for the use of the Plaintiff although he had no authority given him to receive it Hill 23. Car. B. r. The Statute of limitations of Actions doth not
by my acceptance of the rent I have assented to his entry Distress and Distringas The seising of a stray is not a Distress of it for he that doth seise it claims a property in it 21. Car. B. r. And no man can Distrain that which is his own for to Distrain is but to take one thing from another and to put it into the custody of the Law as a pledge for another thing which is due to him that doth Distrain from him that is distrained An amercement lies not against a Sheriff out of his Office for a misdemeanour done by him whilst he was in his Office but a Distringas nuper Vicecomiti lies against him for it Pasc 24. Car. B. r. The Writ of Venire facias for the Sheriff to summon a Jury is retornable by him into the Court and upon the retorne made of it by him there issues out of the Court another Writ called a Distringas Juratores to cause the Jury to appear in Court at the tryal of the Cause if the tryal be at the Barr in this Court or at the Assises in the County where the Action lies if the tryal be to be there Mich. 24. Car. B. r. The Writ of Distringas Jurators ought to be delivered unto the Sheriff so timely that he may warn the Jury to appear four dayes before the Writ is retornable if the Jurors live within fourty miles of the place of tryal and eight dayes if they live further off 13. May. 1651. B. S. Discontinuance A Discontinuance in process is helped if there follow a verdict in the cause and the party do also appear upon the verdict 21. Car. B. r. Q. Whether every discontinuance of process may be thus helped Where a Vouchee may be essoigned and the essoigne is not adjourned this is a Discontinuance but where it is not necessary the vouchee should be essoigned there the want of adjournment of the essoigne makes no Discontinuance Hill 22. Car. B. r. An appeal may as well be Discontinued by the defect of the process or proceeding in it as it may be by insufficiency of the original Writ Hill 22. Car. B. r. The Plaintiff cannot Discontinue his Action after a generall verdict found against him nor after a special verdict is found upon matter of Law arising upon the evidence given at the tryal in the cause 22. Car. B. r. The Plaintiff may Discontinue his Action by the leave of the Court after he hath joyned in demurrer with the Defendant paying Costs to the Defendant if the demurrer was only upon matter of form in the pleading But if the demurrer was as well upon matter of substance as upon matter of form there he cannot Discontinue his Action by leave of the Court Mich. 24. Car. B. r. Except the Defendant will consent unto it A discontinuance of an Action or Suit is not a perfect Discontinuance untill it be entred upon the Roll but if this Discontinuance be to be pleaded it is not necessary to plead the entry of it Trin. 23. Car. B. r. Where a Demurrer is a generall Demurrer whereas it ought to have been a speciall Demurrer this is a Discontinuance and there can be no judgment given in the case upon such a Demurrer Hill 23. Car. B. r. After a Demurrer upon an Arbitration pleaded it is not usual to Discontinue the Action Mich 24 Car. B. r. Demand Where there is a Demand of a thing to be made there the Demand must be a Legal Demand that is it must be made in such manner as the Law requires otherwise he that made the Demand can take no advantage in Law upon this Demand Hill 21. Car. B. r. If there be no place expressed in a Deed where a rent for Land or a nomine poenae or any other thing demandable shall be made the Law doth then direct that the Demand shall be made upon the Land c. out of which the rent or nomine poenae or other thing demandable do issue or go out of Hill 21. Car. B. r. A Demand of a rent reserved upon a Lease made of a Messuage with Lands belonging to it ought to be made at the Messuage because the Messuage is the most eminent part and place of the thing let and most notorious for the Lessee to take the best notice of the Demand 21. Car. B. r. For the Lessee shall be presumed to be more conversant there then in any other place Yet if the Demand were made upon any part of the Land and the Lessor can prove that the Lessee was there and took notice of it I suppose it is a good Demand but if he were not there when the Demand was made Q. whethâ—r it be a good Demand The parties bringing of an Action of Debt for monies due upon an Obligation and the taking of a distress for rent by him unto whom the rent is due is a good Demand in Law of the Debt due by the Obligation and of the rent Trin. 22. Car. B. R. A Demand in a precipe to recover Lands ought to be more certain than a Demand in a Writ of Dowr 18. Nov. 1650. B. S. For Dowr is one of the things favoured in Law Declaration A Declaration may be against one that is in custody of the Marshall of this Court upon an information although he do not appear to an Action Hill 21. Car. B. R. The Plaintiff is not compellable to file his Declararation yet if it be not filed and afterwards judgment is given in the Cause the judgment is erroneous for want of a Declaration Hill 21. Car. B. R. For before it is filed it is not upon record and so there is no Declaration to warrant the judgment If the Plaintiffs Attorney do file a Declaration against the Defendant in the Kings Bench Office the Defendant is bound to take notice of the Declaration at his peril 21. Car. B. r. A Declaration ought not to vary or differ from the Plaint that is the Cause which the Plaintiff doth express in his Writ why he brings his Writ 21. Car. B. r. For the Writ is the ground of the Declaration and that which warrants it If the Plaintiff declare against the Defendant upon a corrupt Contract made against the Statute of 21. Jac. made against Usury he must express in the Declaration that the Defendant corrupte agreavit or else he must shew that the Contract was made pro usura contrary to the Statute 21. Car. B. r. For he must pursue the words of the Statute One may not Declare against one that is in the Kings Bench prison that is not either in custodia Mareschalli or that hath not filed his bail or that is not a priviledged person in this Court 21. Car. B. r. If one be in custody of the Marescall of this Court at the suit of J. S or have put in bail in this Court to the Action of J. S any other person may put in a Declaration against him the same Terme he
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
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
it is a good Amercement but if it be grounded upon a Presentment which is absolutely void the Americement is also void Mich. 24. Car. B. r. Assignement The Assigning of the general Error upon a Writ of Error brought to reverse a judgement is to say that the Declaration is insufficient that judgement is given for the Plaintiff whereas it should have been given for the Defendant c. and it is not shewed for what reason it is so 21. Car. B. r. If one bring an Action of Debt upon an Obligation that was given for performance of Covenants upon supposition of breach of the Covenants he must Assign but one breach in that Action Trin. 22. Car. B. r. otherwise the Desendant cannot justifie or take Issue A Statute Merchant or Staple cannot be Assigned over to another Mich. 22. Car. B. r. If Lessee for yeers Assign all his Term to come in his Lease over unto another he cannot reserve a Rent for if he do such reservation is not good because the Lesse hath no interest in the thing by reason of which the Rent reserved should be paid Pasc 24. Car. B. r. 21. Ap. 1648. In the Case of one Leach and Davy Averment Where a Statute is recited there one may not Aver that there is no such Record for generally an Averment as this is doth not lie against a Record For a Record is a thing of a solemne and high nature but an Averment is but the Allegation of the party 21. Car. B. r. One may not Aver a thing contrary to the Condition of an Obligation no more then he may against a Record for the Condition is part of the Deed which shall be supposed to he made upon good deliberation and before Witnesses and not be contradicted by a bare Averment 7. No. 1650. B. S It was said by the Court that if one assume upon himself to do a future act and an Issue is joyned upon this promise whether he hath done this thing or no the party needeth not to Aver that he hath done it for the doing or not doing of it is Traversable and the Plaintiffe might have taken advantage upon the Defendants Plea if it was not true Avowry If one make an Avowry for two causes and can maintain his Avowry but for one of them yet it is a good Avowry 21. Car. B. r. One Avowry may be made upon two several titles of land though the Avowry is but for one Rent 6. Feb. 1650. Adjournment The Court is Adjourned by the Cryer of the Court after he hath made Oyes three times and the substance of the Adjournment is to give licence to all parties that have any thing to do in the Court to forbear their attendance and to take their ease till such a time precisely named and then to attend in Court again Every last day of the Term and every Eve of a day which is not dies iuridicus or a Law day wherof there is two such dayes in Mich. Term viz. all Saints and all Souls day and one a peece in Hillary Term Easter Term and Trinity Term viz. the day of the purification of our Lady in Hillary Term Ascension day in Easter Term and Saint John the Baptists day in Trinity Term the Court is Adjourmed and before the Statute for the proceedings of the Law in English it used to be done first in English and then in French two several times sitting the Court towards the latter end of the day a good space of time being between the first and second pronouncing of the Adjournment but since the Statute the Court is onely Adjourned in English A Jury which doth not appear full cannot be Adjourned for such a Jury is not accompted a Jury Hill 22. Car. B. r. The first Adjournment of the Court is about eleven of the clock and the last immediately before the rising of the Court. Administration The mother ought to have the Administration of the Goods and Chattels of her child before a son or a brother or a sister 22. Car. B. r. Trin. Where the payment of money would not be for the advantage of the Testator there the not paying of it cannot be pleaded to be to the retarding of the Administration of his Goods and Chattels Mich. 22. Car. B. r. All Actions which an Administrator can have is given unto him by several Statutes Mich. 22. Car. B. r. Where an Administration is granted by such a jurisdiction as the Law takes notice of it is not necessary to shew that the Letters of Administration were granted by the Ordinary of such a place but where the Law takes no notice of the jurisdiction of that Court where the Administration was granted the Letters of Administration must be so pleaded viz. per loci illius Ordinarium Mich 22. Car. B. r. Letters of Administration may be revoked by a Revocation without a seal Mich. 22. Car. B. r. The Ordinary ought not to repeal Letters of Administration which he hath duly granted but if they be unduly granted viz. to such a person who by Law ought not to have them he may revoke them Pasc 23. Car. B. r. One of the half blood is in as equal a degree of kindred to the Intestate to have Letters of Administration granted unto him as one of the whole blood is Mich. 23. Car. B. r. An Indebitatus Assumpsit doth not lye generally against an Administrator Hill 23. Car. B. r. Letters of Administration granted per Carolum Regem debito more adjudged to be well granted in that form Hill 24. Car. B. r. Where the parties that require Letters of Administration from the Ordinary are of equal degree of kindred to the Intestate there it is in the discretion of the Ordinary to grant them to which of them he pleaseth Pasc Mich. 24. Car. B. r. Where one bequeaths a Legacy to one of his kindred and the residue of his goods to another Administration ought to be granted to him to whom the residue of the goods are bequeathed Mich. 24. Car. B. r. Arrest If an Action of Debt be entered in any of the Counters in London a Serjant may Arrest the party without the Sheriffs Warrant Trin. 22. Car. B. r. A Clerk of the Court ought not to be Arrested for any thing which is not criminal because he is supposed to be alwayes present in Court and must answer the Plaintiff there and therefore he that doth Arrest him is punishable by the Court Trin. 23. Car. B r. One ought not to be Arrested upon every slight suspicion of Felony but there ought to be a good ground shewed for the suspition before he is to be Arrested for Fame Life and Libertie are precious things in the eye of the Law Mich. 1649. B. Sup. One that is not priviledged from Arrest by reason of his attendance upon his business in some Court of Justice or some other wayes priviledged by some special Rule or Order of Court may be Arrested in Westminster-Hall sitting the Courts
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
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.
a Messuage is an entire thing of it self and cannot be apurtenant to another thing Non-sute UPon a Trial when the Jury comes in to deliver in their Verdict and the Plaintiff is called to hear the Verdict If he do not appear after he is thrice called by the Crier of the Court he is to be Non-sute and the Non-sute is to be recorded by the Secondary by the direction of the Court at the prayer of the Defendants Councell Hill 21. Car. B. r. When a Plaintiff is Non-sute if he will again proceed in the same Cause he must put in a new Declaration and cannot proceed upon that Declaration whereupon he did proceed in the Cause wherein he became Non-suite 22. Car. B. r. 16. Ap. 1650. B. S. For by his being Non-suit it shall be intended that he had no such cause of Suite as he deelared in and so that declaration is void The King of Spain hath been Non-suit in England Mich. 22. Car. B. r. And this stands with reason for if a foraign Prince will take the benefit of the nationall Laws here he must proceed and stand to the Rules and orders of the Court wherein he prefers his Action If the Plaintiff will not proceed upon his Declaration as he ought to do by the Rules of the Court the Defendant may Non-suit him Mich. 1649. B. S. Although upon a tryal the Plaintiff be called to hear the Verdict and do not appear to hear the Verdict when he is called and thereupon the Court direct the Secondary to record the Non-suite yet if afterwards the Plaintiff do appear before the Non-suite be actually recorded the Court may proceed to take the Verdict Trin. 1651. B. S. For it is not a Non-suit untill it be recorded by the Secondary and then it is made part of the record and is in the nature of a Judgement against the Plaintiff If the Plaintiff be not ready at the tryal with his Record when the Jury is called the Court will call him Non-suit By Rolle Chief Justice 1651. B. S. For it shall be intended he will not proceed in his cause any further Nolle Prosequi A Nolle Prosequi is where there are divers Issues joyned between the Plaintiff and the Defendant and the Plaintiff enters upon the Roll a Nolle Prosequi That is to say that he will not proceed upon one or more of the Issues joyned and yet he may proceed to tryall upon the rest of the Issues Hill 23. Car. B. r. Nusance A Nusance made in a Port or Haven by the sinking of a Ship there ought to be removed by the owner of the Ship and if he do it not he may be endicted for it as for making a Common Nusance 21. Car. B. r. For it is prejudicial to the Commonwealth in hindering of Trade An Action upon the Case ought to be brought against one that makes a private Nusance and he ought not to be endicted for it Pasc 23. Car. B. r. For Endictments ought to be in the Kings name and do presume to be preferred for offences done against the publike A common Nusance may be abated or removed by those persons who are prejudiced by it Pasc 23. Car. B. r. Nomine Poenae A Nomine Poenae for the non-payment of a Rent ought to be legally demanded if the Rent be behind as well as the Rent is to be demanded before the grantee of the Rent can distrain for it 21. Car. B. r. For the Nomine Poenae is of the same nature as the Rent is and is issuing out of the Land out of which the Rent doth issue Notice The Plaintiff and Defendant are both bound at their perill to take notice of the general Rules of practice of this Court but if there be a special particular Rule of Court made for the Plaintiff or for the Defendant he for whom the Rule is made ought to give Notice of this Rule unto the other or else he is not bound generally to take notice of it nor shall be in contempt of the Court although he do not obey it Pasc 24. Car. B. r. Mich. 1649. B. S. For general rules are the general practice of the Court whereof every one must take Notice of that hath to do there but particular rules are made upon particular and extraordinary matters happening in the proceedings upon the motion of one of the parties made to the Court of which the other may be ignorant The Court is bound Ex Osicio to take Notice of all matters which do appear upon the Record depending before them but of matters Dehors viz. to search the Almanack for dayes and to compute times mentioned in the Record they are not bound Ex Oficio to do it 21. Car. B. r. 24. Car. B. r. Q. The Court is not bound to take Notice of the new stile but of the old English stile 21. Car. B. r. For the old is that whereby all accounts in the Common Law are guided and not by the new which is foreign and goes ten dayes before the English stile or account The Plaintiff ought to give the Defendant eight dayes Notice exclusive before he executes his Writ of Enquiry of Dammages or else the Court will quash it although he have executed it and put him to a new Writ of Enquiry upon the motion of the Defendant made to the Court of his want of such Notice and proof thereof by Affidavit Trin. 22 Car. B. R. and Pasc 1652. B. r. Exclusive is meant that the day upon which the Notice is given is not to be one of the eight dayes but the Writ is to be executed upon the ninth day and so long Notice is to be given that the Defendant may have time sufficient to defend himself by his Councel and Witnesses upon the evidence given against him before the Sheriff and the Jury by the Plaintiff The Common Law doth not take Notice of the intentions of the party to do any unlawful Act except it be in case of high treason Trin. 22. Car. B. r. For mans Law is to regulate the words and Actions of men and not the thoughts of which it cannot have conusanse But Gods Law extends to the thoughts This Court is to take Notice of a general Ordinance of Parliament viz. such a one as concerns the Publique but not of a Parliament Ordinance which concerns some particular persons Mich. 24. Car. B. r. Except such particular Ordinance do appear before them by pleading or otherwise If a Declaration be put into the Office although it be not filed yet is the Defendants Atturney bound to take notice of it Mich. 22. Car. B. r. For it is the Duty of the Plaintiffs Atturney onely to put the Declaration into the Officer and the Officer in the Office is to file it and though it be not filed yet may the Defendants Atturney take a Copy of it None is bound by the Law to give Notice to another of that which that other person may otherwise inform himself
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
suit is not determined and the Court will intend that he will proceed no further and the Defendant is not to be tyed to attend upon his proceedings upon incertain tyes Although the Verdict given be prejudicial to the Plaintiff as he conceives yet he ought to bring in the Postea Pasc 1651. B. S. 13. Maii. For he must abide by the tryal though it may prove prejudicial unto him A Postea is a record of this Court trusted with the Atturney in the cause by the Clerk of the Assize and the Atturney is bound if he be so trusted to deliver it into the Office that the Judgement may be entred by it by the Officer of the Court Trin. 1651. B. S. It is not necessary to annex the Distringas unto the Postea although it is usual so to do Trin. 1651. B. S. Presumption Where the Plaintiff doth declare in an action of Debt for Rent behind due upon an Indenture of Demise for years it shall not be Presumed that there is any other Rent due or Lease made then that upon and for which the Plaintiff doth declare Mich. 22. Car. B. r. For this would be a foreign construction and for which there is no inducement Where divers houses are let to one by one Lease the Court will Presume that the Lessee is in possession of them all if the contrary doth not appear Pasc 24. Car. B. r. For although the Lessee may possibly have passed away his interest in some of them to other persons yet this not appearing to the Court they will not presume it to be so One Court of Justice will not Presume that another Court of Justice will do unjustice except it do plainly appear unto them that it is so Pasc 24. Car. B. r. For each Court ought to have an honourable opinion of the proceedings of another Court Portes The Cinque Ports are not absolutely exclusive of the Common Law so that it may not intermedle in some Cases with the proceedings in their Courts Mich. 22. Car. B. r. For the Common Law is the universal and supreme Judge of the Nation and no place ought to be so priviledged either by custome or charter as totally to be exempted from its jurisdiction for this might cause a failer of Justice in some cases if it should be so A Writ of Error to reverse a Judgement given in the Cinque Ports is to be brought before the Warden and Constable of Dover Mich. 22. Car. B. r. Whether a Certiorari lies to any of the Cinque Ports hath been a question Pasc 23. Car. B. r. Yet a Certiorari was granted out of this Court to remove a Judgement given at Dymchurch in Kent being a limb of one of the Cinque Poots in Rook and Knights case Mich. 22. Car. B. r. Rot. 381. moved by Launcelot Johnson of the Inner Temple Property He that hath the Land that lies on both sides of a High way hath the Property of the soile of the High-way in him although the King hath the priviledge for his people to pass through it at their pleasures for the Law presumes that the way was at the first taken out of the Lands of the party that owes the Lands that lye upon both sides of the way Mich. 22. Car. B. r. By Rolle So that it seems it is called the Kings High-way because of the priviledge that the King hath in it for his people to pass and repass through it and not in respect of any Property he hath in the soile it self He that hath the goods of another person delivered unto him to keep hath a special Property in them by reason of the delivery of them and may maintain an Action against a stranger that shall take them out of his possession although they be not his own proper goods Hill 22. Car. B. S. Because an Action doth lye against him to whom they were first delivered by him that did deliver them if he shall not redeliver them when he is demanded to do it A Legatee of goods hath no Property in the goods bequeathed unto him before they be delivered unto him by the Executor or Administrator Mich. 23. Car. B. r. For the property of them is not altered by the Will The Rector of a Parish Church shall be intended to be the proprietor or owner of the tithes of the Parish if the contrary be not shewed Trin. 24. Car. B. r. Because generally tithes do belong to the Rector although in many places they do not If the Sea or a River shall by violent incursion and breaking forth carry away the soil of one in so great a quantity that he that had the Property in the soile can know where his Land is he shall have it but if his soil or land be insensibly or by little and little wasted by the Sea or the River he must lose his Land Pasc 1650. B. S. 11. Maii. If one to support the credite of a Bankrupt will suffer the Bankrupt to have his goods in his custody and to dispose of the Property of them the Property of the goods shall be accounted to be in the Bankrupt and the other upon a tryal for the Property of them shall be judged to have lost his Property in them Pasc 1651. B. S. 18. Ap. Because by so doing he was a cause in part that others were deceived by the Bankrupt whose credit he supported and therefore he is justly punished Partition A Partition of Lands ought to be made according to the quality and the true value of the Lands and not according to the quantity or equal number of Acres Hill 22. Car. B. r. For the Partition ought to be equal which is so in the latter but may not be so in the division by equality of Acres Payment Payment of money before the day of Payment appointed is in Law a Payment at the day Mich. 22. Car. B. r. For it cannot be in Presumption of Law any prejudice to him to whom the Payment is made to have his money paid before the time In an Action of Debt brought for Rent due upon an Indenture of Demise of Lands the Defendant may plead payment without a Deed and it is a good Plea in Bar of the Action Trin. 24. Car. B. r. Because the Lessee cannot compell the Lessor to make him any discharge by Deed or Writting upon Payment of the Rent If one buy any thing of another he that buyes it must pay the money contracted for to be paid for it before the seller is bound to deliver him the thing sold Pasc 24. Car. For the contract doth imply such a condition in it A Payment of money shall be interpreted to be made according to his intention that payes it and not according to his intention that receives it Mich. 1650. B. S. 22. Nov. For every one ought to interpret the intention of his own act and not another Procedendo If this Court do proceed to try a Custome of London there the Party may move for
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
for which the Action is brought Hill 23. Car. B. r. The Court will not change the venue in an Action brought upon an obligation Hill 23. Car. B. r. Because the Action is personal and transitory and it is at the election of the party to lay it where he pleaseth yet the rules of Court for the laying of personal and transitory Actions have not been very constant of latter times but the Courts do vary as they see cause A Judgment given in an inferior Court was reversed here by a Writ of Error because the Venire was Venire facias c. and not at large Hill 1650. B. S. But such a Venire in the Common Pleas is good For the constant course there is to enter the Venire briefly with an c. The Defendant may move to alter the Venue although the Plaintiffs Declaration be not perfect Mich. 1650. 25 Oct. B. S. For though it be not perfect in all things yet it may be so perfect that he understands where the Venue is laid and that is enough to ground a motion upon to alter it if it be laid where it ought not to be In an Action of Debt brought for Rent due for Land the Venue may not be laid out of the County where the Land lies for which the Rent is due for the Action is a locall action ratione terrae out of which the rent is issuing Hill 1650. B. S. 29. Jan. A Venue cannot be laid in Wales in a transitory Action the Cause whereof did arise in England because this would be to remove the Cause to be tryed out of the jurisdiction of the Court and then this Court can give no judgment in it Trin. 23. Car. B. r. The Venue cannot be changed after the Defendant hath pleaded although the Plaintiff have amended his Plea in a principall and materiall part of it after the Defendant put in his Plea and though the Defendant do imparle by reason of that amendment for all this makes it not a new Declaration 1650. B. S. A Venire out of an inferior Court ought to runne thus Ideo praeceptum est in eadem Curia or per candem Curiam Hill 1649. B. S. 30. Jan. But now those Latine words must be in English It is not necessary to insert the Names of the Jurors in the Venire facias although it was the antient course to do it Hill 1649. B. S. 4. Feb. So that antient forms may be altered upon good reason else not Where the Declaration is good but the Plea is uncertain and yet an Issue is joyned and tryed upon it this is a mis-tryall for there can be no judgment given upon it and therefore there must be a Repleader and a new Venire to summon another Jury to try the Cause again Hill 1649. B. S. 8. Feb. A Venire facias is oftentimes retorned before the Plea be entred and yet it is well enough Pasc 1650. B. S. 24. Maii. For the Plea is a Plea before it is entred so that there is an Issue to be tryed which is a sufficient warrant for awarding and retorning of the Venire A Venue is not to be changed in an Action of Debt brought for Rent or upon an Obligation or in an Action of Covenant or in an Action of Accompt Trin. 1650. B. S. 26. Junii Mich. 1650. B. S. 23. Nov. The Venire ought to be delivered to the Sheriff four dayes before the retorn of it if the Jury do dwell forty miles off and eight dayes if they dwell further off then forty miles from the place where the tryall is to be Pasc 1651. B. S. 13. Maii. If the Defendant do move to change the Venue upon Affidavit made that the cause of Action if any be did arise either in Kent or Surrey for example and not in London where the Action is laid the Plaintiff shall have his election to lay his Action either in Kent or in Surrey upon giving the Defendant notice in which of them he will lay it but shall not lay it in London 1651. B. S. The Attorneys are sworn not to lay personall Actions in forreign Counties but in the Counties where the causes of them did arise and the Statute doth also prohibit it for the laying them in forreign Counties doth put the people to charge for motions to alter the Venues into their proper Counties and therefore it is fit the Attorneys should observe it By Rolle 1650. B. S. But as yet the practice herein is unsetled and inconstant And it may be it is not setled because there might great inconveniences grow by setling of it and tying up the hands of the Court from doing that which the exigency of the case may require Verdict If there be severall ejectors of severall parcels of Land mentioned in a Lease of Ejectment the Jury ought to finde this matter especially Hill 21. Car. B. r. A Verdict which is found against a Record is a void Verdict Hill 21. Car. B. r. For a Record is of a higher nature and more credit is to be given unto it then unto a Verdict If a Verdict may be any wayes construed to make it good there ought not to be made a construction of it to destroy it and make it void Hill 21. Car. B. r. For the Law delights in the preservation of things and would not have things to be done in vain The Court will not take a Verdict by default except the Plaintiffs Councell do pray it Hill 21. Car. B. r. For the Plaintiff may choose whether he will take the Verdict or no and therefore the Court will not take it except he desire it If the Plaintiff doth fail in proving of his Issue the Verdict ought to be found for the Defendant except the Jury do know of their own knowledg that the Defendant is guilty Hill 21. Car. B. r. So that the Jury is not so tyed up by the evidence that they must alwayes give their Verdict according to it If one of a Jury that found a Verdict were outlawed at the time when the Verdict was found the Verdict is not good but may be reversed by error Hill 21. Car. B. r. For an out lawed person is out of the protection of the Law and is debarred from intermedling with any Civil affairs as a person excommunicated is from participating in Divine Ordinances If a Verdict be found for the Plaintiff and he will not enter it if the Defendant move the Court in it they will compell him to enter it and so it is where the Plaintiff doth refuse to enter a Verdict found for him upon the executing of a Writ of enquiry of Dammages Mich. 22. Car. B. r. For the Plaintiff ought to rest satisfied with what the Law gives him Or the Defendant may enter it himself if he will A Declaration that is not good is in many cases helped after a Verdict by the Statute of Jeofailes but where the Declaration doth not make it appear that the Plaintiff had some
alleged a place from whence the venue should come and it is not alleged but omitted and yet an issue is joyned between the parties and the veniâ—e is from the body of the County the Defendant may Demur upon the venire facias if he will but if he do not Demur but suffer the tryal to pass this is a good tryal Mich. 22. Car. B. r. For he hath slipped his advantage of Demurrer Where a Statute gives leave to plead generally and the party waives this leave and pleads specially the other party may Demur upon his special Plea if he see cause Pasc 23. Car. B. r. For though he needed not to have Pleaded specially yet having done it the Plea must be good at his own peril A generall Demurrer doth not lye to a Scire facias Pasc 23. Car. B. r. For it is in the nature of a judicial Writ Upon a Demurrer to an evidence given to a Jury at a tryal the Jury are to be discharged and not to pass upon the tryal But the matter in Law in question upon the Demurrer is referred to the Judges to determin Pasc 23. Car. B. r. A Demurrer to an evidence is when the party that doth demurre upon it doth demand the judgment of the Court whether the matter given in evidence be sufficient admitting it to be all true to finde a verdict for the Plaintiff upon the issue that is joyned betwixt him and the Defendant Pasc 23. Car. B. r. And when such a Demurrer is taken the Plaintiff and the Defendant must agree the matter of fact in dispute betwixt them otherwise the Court cannot proceed to determine the matter in Law but there must be a Venire de novo to try it Trin. 23. Car. B. r. The party that is delayed in his proceedings by reason of a Demurrer may move the Court to appoint a short day after to hear Counsel speak to the Demurrer and the Court will grant it Trin. 23. Car. B. r. In a Demurrer upon an evidence the party demurred unto may demand judgment of the Court whether he ought to joyn in the Demurrer or not Trin. 23. Car. B. r. For if there be not a colourable matter for to ground the Demurrer upon the Court will not force the party to joyn in it but will overrule it One cannot demurre upon a thing upon which an issue cannot be taken by reason of the doubleness and by consequence doubtfullness of the matter Trin. 23. Car. B. r. After the Plaintiff and Defendant have joyned in the issue which is to be tried betwixt them neither of them can Demurre without the consent of the other Trin. 23. Car. B. r. For by their joyning in the issue both parties have admitted the whole pleading to be good as to try the issue There must be a speciall Demurrer to a negative preignance that is a negative Plea which doth also contain in it an affirmative and to an argumentative Plea that is a Plea which concludes nothing directly but only by way of argument or reasoning and to a double Plea for a generall Demurrer doth admit them to be good Mich. 23. Car. B. r. For is doth not shew any fault in them as a speciall Demurrer doth One may demurre to a Demurrer for the doubleness of it but if he that might demurre doth not demurre to it but joynes in the Demurrer he cannot demurre afterwards for he hath slipped his advantage Mich. 23. Car. B. r. A Demurrer is double when that he that doth demurre doth assign in his Demurrer for cause of it one error in fact and another error in Law to be in the Plea upon which he demurres which he ought not to do in one Demurrer Mich. 23. Car. B. r. One may demurre to one part of a Declaration and yet plead to the other part of it with a Quo ad c. Mich. 23. Car. B. r. Discharge If an Attachment be granted by the Court against one and he is thereupon apprehended he shall not be discharged upon an affidavit made on his behalf but he that is attached must appear in person in Court and be there Discharged Mich 22. Car. B. r. For it is a personal offence for which he is attached and he shall not therefore be discharged except he yeeld obedience in person A paroll agreement before it is broken may be discharged by paroll or word but after it is broken it cannot be discharged without satisfaction made for the breach of it Hill 22. Car. B. r. For by the breach of it an injury is done to the party which requires satisfaction Hill 20. Car. B. r. If one be arrested by a Latitat out of this Court and the Plaintiff do not declare against him in two Terms after if the Defendant move the Court that he may be discharged because the Plaintiff doth not prosecute his suit against him the Court will Discharg him Pasc 23 Car. B. r. For liberty is precious and much favoured in Law If the Plaintiff at whose suit the Defendant is in execution do give the Defendant leave to go at large that is out of prison the execution is thereby discharged and if the Plaintiff do take the Defendant again upon the same execution and commit him to prison the Defendant may bring an Audita quercla against the Plaintiff for his illegall imprisoning of him Mich. 23. Car. B. r. For it shall be intended that the Plaintiff had satisfaction upon the execution or else he would not have given the Defendant leave to go at large A Prisoner that is committed for Felony and brought to this Barr by a Habeas Corpus cannot be discharged although the retorn upon the Habeas Corpus be not sufficient to give the Court satisfaction that he was justly committed Pasc 24. Car. B. r. A Prisoner that is brought to the Barr to be bailed by a Writ of Habeas Corpus if he were committed for matter on the Crown side he must be brought into Court on the Crown side that is on that side of the Court where the Master of the Crown-Office sits but if he stands committed for a matter determinable on the Pleas side he must be brought into Court to be bailed on that side of the Court where the Master of the Kings-Bench Office sits viz. on the left hand of the Lord Chief Justice Pasc 24. Car. B. r. Of later time it hath been permitted by the Court to Discharge the bail if he bring in the principall before the retorne of the second Scire facias issued out against the bail but antiently it was not so Mich. 24. Car. B. r. A Judgment cannot be Discharged by pleading a Paroll agreement between the parties to discharge it 27. Jan. 1650 B. S. For matters of record are not to be wiped off with words Disseisor If one enter wrongfully into my Lands and after his entry I accept rent of him for the Land I cannot afterwards take him for a Disseisor Trin 24. Car. B. r. For